In April, the children’s commissioner for England, Dr Maggie Atkinson, produced a damning report on the exclusion of children from schools in England, entitled Always Someone Else’s Problem. This was a follow-up to a report published last year called They Never Give Up On You (For links to SecEd’s coverage of both reports, see further information).
Schools can exclude pupils because of their behaviour, provided that the school acts within the law, which is explained through statutory guidance. Exclusions can be either permanent, where the child is removed from the school’s roll, or for a fixed-term, where the child remains on the school’s roll but is forbidden from entering the premises for a defined period.
Both permanent and fixed-term exclusion rates have fallen steadily over the past decade, and permanent exclusions in particular now affect only a very small minority of young people in schools.
Running to 117 pages and incorporating 27 recommendations, They Never Give Up On You is a comprehensive review of the current position regarding exclusions in schools and academies across England. It identifies some key issues:
Some schools were found to be implementing informal or unofficial exclusions.
There is stark gender, race, special needs and socio-economic inequality in exclusions, which the commissioner describes as a “scandal”. For example, in 2010, if you were a Black African-Caribbean boy with SEN and eligible for free school meals, you were 168 times more likely to be excluded from a state school than a White girl without SEN from a middle class family.
The levels of permanent and fixed-term exclusions from schools is declining year-on-year – the number of permanent exclusions in 2006 was 9,330, against 5,740 in 2009/10.
There was evidence given by one barrister that some academies are deliberately flouting the statutory guidance on exclusions by refusing to submit to independent review of their decision to exclude, on spurious contractual grounds.
The follow-up report, Always Someone Else’s Problem, focuses on the problem of illegal exclusions and makes 10 recommendations.
It states that while most schools are staying within the law, illegal exclusions are still taking place across hundreds of institutions. It found that pupils are often removed from school by being placed on “extended study leave”, part-time timetables or at “inappropriate and questionable quality alternative provision”.
Parents are also being coerced into moving their children to different schools or to home education under the threat of permanent exclusion, while children with special needs are often being sent home if their carer or a teaching assistant is unavailable.
It claims that the equivalent of 540 schools across England have recorded pupils as “authorised absent” or “educated elsewhere” when in fact they have been encouraged not to come in. And 1.8 per cent of schools have encouraged parents to take their children out of school and educate them at home without recording it as an exclusion, equating to 192 schools. The report finds that many parents, children and some teachers do not know the law around exclusions.
New policies for pupil exclusions and reviews, as detailed in The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012, came into effect in September 2012. According to these regulations, the initial review of the headteacher’s decision to exclude remains with the governing body.
The guidance then sets out the procedures that the headteacher and the governing body must follow in advance of any hearings.
The crucial change brought in by these regulations was the replacement of the independent appeals process with an independent review. This new review panel has limited powers when compared to its predecessor.
The independent review can only decide to uphold the exclusion, recommend that the governing body reconsider the decision, or direct the governing body to reconsider its decision.
A move to overturn the exclusion should only be made when the review panel finds that the headteacher acted illegally, irrationally or with procedural impropriety.
In the case of a pupil with SEN, the school must arrange for an SEN expert to be present at the review hearing to provide impartial advice to the panel.
If the review panel does decide to overrule the governing body’s decision and direct that it reconsiders and the school still refuses, the panel should order an adjustment to a school’s budget or payment of £4,000 towards the cost of alternative provision (unless the governing body subsequently offers to reinstate the pupil).
The basis for this is that the school, or academy, has one less pupil under its care, and adjustments to its budget should be made accordingly.
In the case of SEN, if the pupil’s review is unsuccessful, they can challenge the exclusion at the First Tier Tribunal (Special Educational Needs and Disability). In all other cases a challenge can only take place by way of judicial review.
The examples highlighted in reports of “illegal exclusions” tend to be incidents where schools have not recorded short periods of time out of school as a fixed-term exclusion, although there were some more extreme examples given. For instance, a pupil reacts to an incident at lunch-time in an unacceptable manner and is sent home for the remainder of the day to “cool off”.
The children’s commissioner is quite correct that this amounts to an unlawful exclusion if it is not correctly recorded and communicated. In many circumstances, the school may well have considered that they were acting in the pupil’s own interests in not formalising the exclusion on the pupil’s record. While this may have been done with the best intentions, schools should refrain from doing this in the future.
The report also highlights examples of schools failing to follow correct procedure in notifying parents of fixed-term exclusions and giving reasons for such exclusions. This has apparently led to some parents and pupils being confused about their ability to challenge the exclusion.
In my experience, pupils and their parents seem more willing than ever before to obtain independent legal advice and challenge, by way of independent and judicial review, the decisions of schools and their governing bodies. The plethora of niche solicitors’ firms now specialising in educational law would suggest this is becoming a thriving industry for legal advisors.
Because of this trend in awareness and activism, schools need to make sure they have proper procedures in place for documenting the headteacher’s decision to exclude, and the evidential reasons for doing so. If the decision to exclude arises out of a single incident, that incident needs to be properly documented, with contemporaneous statements taken from as many witnesses as possible.
If the decision to exclude has arisen because of persistent breaches of the school’s behavioural policy, then each breach should be documented.
Records should be kept of the interventions the school has attempted prior to making the decision to exclude. It should be clear from the school’s documentary evidence that the decision to exclude had been one of last resort, after all other avenues had been explored.
Even more comprehensive evidence must be provided if the pupil excluded has SEN or is of primary school age. With proper procedures in place, a school can avoid becoming one of the minority that the commissioner stated exclude on a “whim”.
For SecEd’s coverage of the two reports, visit:
Perry Hill is partner in the education sector group at business law firm DWF.