Exclusion has historically been the prerogative of individual schools and headteachers. However, since the late 1990s teachers have been pressured to consider the rights and interests of excluded individuals more carefully.
Further legislation has just come into force that will have an impact on how schools, including academies, can tackle student exclusions. This is backed by the School Discipline (Student Exclusions and Reviews) (England) Regulations 2012, accompanied by new statutory guidance issued by the Department for Education.
As the name suggests, they put in place a new process of decision and review to replace the old process of decision and appeal.
The new process recognises that the school’s headteacher has the ultimate right to exclude a student permanently. This may be a daunting procedure to many, as you may feel that you hold the student’s future in your own hands, but as long as you carefully consider the challenges that come with permanent exclusion, the process should be less intimidating.
There are strong public policy reasons for avoiding permanent exclusion wherever possible. There is also a need to ensure that decisions to exclude are not made in a way which unfairly and disproportionately affects particular ethnic groups, students with disabilities and those with SEN.
According to research from the School Exclusion Unit, most of those excluded are White, male teenagers. Children with special needs or who are of Afro-Caribbean descent are six times more likely to be excluded, while those who are in care are 10 times more likely to be excluded. Exclusions are evidently higher in places of economic deprivation. Therefore, we must be sensitive to issues of equality and discrimination.
The new process balances various requirements. It strengthens the autonomy of the headteacher and governing body while stressing the seriousness of their obligations in making decisions. The key aspects of the new process are as follows:
Independent appeal panels replaced by independent review panels with power to recommend or direct the governing body to reconsider its decision.
Where requested by a parent, an SEN expert must be appointed to advise the independent review panel.
If the independent review panel directs the panel to reconsider its decision and the governing body decides not to reinstate the student, there can be financial consequences for the school.
Parents alleging discrimination in relation to exclusions have the right to bring legal claims.
The statutory guidance states that headteachers should only use permanent exclusion as a last resort.
Imagine a student who constantly breaks the rules, or one who would seriously harm the welfare of others if they remained in the school.
This is when permanent exclusion comes into action. If the case isn’t so extreme, for example if the student is wearing jewellery or isn’t doing homework, then other means of dealing with the situation should be considered.
The new rules emphasise the fair treatment of students from groups who are vulnerable to exclusion. It is important to enable and encourage students to participate at all stages of the exclusion process.
As a headteacher you should also take into account their age and understanding of the situation and all other surrounding circumstances.
Unsurprisingly, the decision to exclude must be made in line with the principles of administrative law. It must be “lawful (with respect to the legislation relating directly to exclusions and a school’s wider legal duties, including the European Convention of Human Rights), rational, reasonable, fair, and proportionate”.
All of this will have to be taken into account by the governing body if it is asked to consider whether or not to reinstate a student. The regulations provide for a hearing to be arranged at which all the interested parties are entitled to be present and make representations.
The governing body must then decide whether the headteacher’s decision was “lawful, reasonable and procedurally fair, taking account of the headteacher’s legal duties”.
The governing body is required to explain the reasons for its decision in sufficient detail to enable all parties to understand why the decision was made.
The next stage of the process for a parent who is dissatisfied is to refer the issue to an independent review panel. It is the responsibility of the local authority or of the proprietor of an academy to establish the panel (at their expense) and the regulations contain detailed provisions about the make-up of the panel and training for panel members.
It is also the responsibility of the local authority or academy trust to appoint an SEN expert to advise the panel, where requested by a parent, on “how special educational needs may be relevant to the decision to exclude the student permanently”.
The panel may only quash the decision of the governing body if it appears to be flawed. So if the school has acted “illegally, irrationally or where there are significant flaws in procedure”. The guidance sets out explicit requirements under each heading:
Illegality – did the headteacher and/or governing body act outside the scope of their legal powers in taking the decision to exclude?
Irrationality – was the decision of the governing body not to reinstate the student so unreasonable that it was not one a sensible person could have made?
Procedural impropriety – was the process of exclusion and the governing body’s consideration so unfair or flawed that justice was clearly not done?
The review is therefore limited in scope and the grounds on which the decision of the governing body can be called into question are narrow. Consistent with this approach to the role of the panel, its decision is not binding on the governing body.
Even if the panel directs the governing body to reconsider, the governing body can decide not to accept the direction – provided it is willing to meet the £4,000 charge for alternative provision which is to be levied in addition to any funding that would normally follow an excluded student.
To the extent that the new arrangements give greater power to headteachers and governing bodies, they also impose greater responsibilities. It may well be that the most significant change in practice here will prove to be the explicit application of administrative law principles to processes within schools.
Further informationFor more details on the new regulations and guidance on exclusion, visit www.education.gov.uk/aboutdfe/statutory/g00210521/statutory-guidance-regs-2012
Kevin Jaquiss is a partner and education expert at Cobbetts LLP. Visit www.cobbetts.com
Have you got a legal question?In the coming months, SecEd and Cobbetts will be answering your legal questions. If you have an issue you want us to tackle, email firstname.lastname@example.org