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Jean-Yves Gilg

Editor, Solicitors Journal

Education law update: school exclusions

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Education law update: school exclusions

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Anita Chopra examines 'the key changes to the 'rules on exclusions, and their impact on schools, pupils and parents

Exclusions from school, whether permanent or temporary, have always been governed carefully by the law. This is because the education of children is paramount and the law has always regarded any decision to exclude as serious. Under the present regime, children and their parents have the right to challenge any permanent exclusion imposed by a head teacher to the governing body. If unsuccessful on appeal, parents have a second right of appeal to an independent appeal panel, which has the power to reinstate the pupil, and, significantly, whose decision is binding on all parties.

Exclusions have been much talked about lately. New and imminent changes have been introduced as a result of the Education Act 2011 (EA 2011) (which received Royal Assent on 11 November 2011). These changes will be applicable for all exclusions imposed after 1 September 2012. New guidance and regulations will also apply after 1 September 2012. The EA 2011 has made some important changes that affect practices in schools, including transforming the current decision-making system and empowering teachers to tackle unruly behaviour in a way that has not been permitted before.

Some of the noticeable changes of the EA 2011 include the power for schools to issue same-day detentions (therefore there is no longer a need to give parents 24 hours' notice), and the ability to search pupils for prohibited items without first obtaining consent from parents if there are reasonable grounds to believe that a pupil is in possession of a prohibited item. Teachers will also be protected against 'false' allegations made by pupils.

Bearing in mind that in a civil society it is only just and proper that the police alone have stop-and-search powers, it is striking that schools have now, effectively, been given those same powers

One of the most significant changes to ?the current procedure is that, from September 2012, independent appeal panels will be replaced by independent review panels to determine appeals against exclusions that have lost at the first stage. This is further discussed below.

High level of scrutiny

There has also been widespread discussion following the release of the recent report by the Office of the Children's Commissioner issued on 19 March 2012 following her inquiry into exclusions from schools. This report is the first of its kind in which certain schools have admitted to unlawfully excluding pupils. It is never appropriate, or indeed lawful, to exclude a pupil from school because of issues relating to school uniform or to 'cool off' following an incident of bad behaviour. An exclusion ?of a pupil should only take place as a ?last resort and after a thorough investigation has been undertaken. This must involve a scrutiny of the facts, allowing the pupil in question to give their version of events and to make a statement. It is then for the ?head teacher to make a reasoned decision based on the evidence collated and, ?having regard to the standard of proof ?and the balance of probabilities, ?to determine whether the pupil is guilty ?of the offence. The decision must not be taken in the heat of the moment.

This level of scrutiny is important because an exclusion is a serious blot on a pupil's record. As much as the head teacher must protect the interests of the school, they must also balance those against the interests of the pupil. A decision to exclude must only be taken if there really is no other alternative and allowing the pupil to remain in the school would be detrimental to other pupils and would impact on the school in a highly negative way.

Schools must ensure that they do not discriminate against pupils on any grounds, including race, disability, gender, sexual orientation, etc. Schools must also always comply with the principles of the Equality Act 2010.
They must also have regard to any special educational needs the pupil may have. A decision to exclude a child with special educational needs and one who may have a statement of special educational needs must be taken very carefully; it should be the last resort after alternatives have been tried and failed. Most pupils with special educational needs are disabled for the purposes of ?the Equality Act 2010. They will be left ?in a very vulnerable position from ?1 September 2012, because, if a disabled pupil is excluded, they cannot be reinstated by the independent review panel; therefore that pupil would be better placed appealing to the First-tier Tribunal (special educational needs and disability), which has the ?power to reinstate the pupil to school should they find that they have been discriminated against.


Shifting powers

A pupil cannot be told to leave the school lawfully by a head teacher unless the formal procedures of exclusion are followed. From September 2012, it will be even more important for head teachers to carry out a full investigation because, as stated, pupils following an appeal cannot be reinstated by an independent review panel and its decision will not be binding. It can merely give recommendations. This is a huge and controversial change to the law as it currently stands. Currently, the independent appeal panel's decision is binding on both the school and the parent.

The powers of the independent review panel include upholding the decision to exclude, recommending that the decision is reconsidered by the responsible body (the governing body) or, if the independent review panel takes the view that the responsible body's decision was flawed in light of the principles applicable for judicial review (fairness, procedural irregularity, reasonableness, proportionality), then ?it can quash the decision and direct ?that the matter be reconsidered by the responsible body. There is of course a ?risk that the responsible body will reach ?the same decision, even after reconsideration of the matter. In the ?event that the pupil is not reinstated in? these circumstances, the independent review panel has the power to direct that the local authority makes a financial readjustment to the school's budget to reduce it by a sum of £4,000.

More challenges

There is speculation by practitioners as to whether the remit of the independent review panel will give rise to more challenges in the courts (by way of judicial review) against unfair and unlawful exclusions by parents. If the independent review panel makes a decision that the child or parent is unhappy with, this will lead to recourse in the courts. This makes it a further burden on the legal aid budget as High Court proceedings will be the only way to challenge such decisions.

Further, it is yet to be determined whether independent review panels will be in a position to truly understand the principles of judicial review given that these are complex in law. The members are likely to need significant training in the area (albeit that there is no requirement for the chair of the independent review panel to be legally qualified); will need to understand how the different principles interact with one another; how the different principles will impact on any decision they make; and ?be open to justifying their decision in ?law if challenged by an application for judicial review.

Once a matter is remitted to the responsible body for reconsideration in light of judicial review principles, is it likely that it will overturn its previous decision and render a new one in favour of the pupil? Surely, in those circumstances schools will want to avoid any financial penalty being imposed to its budget. These are all questions that are yet to be answered.

It is important that schools and parents are educated about this issue so that schools are protected from legal action by parents. It is clear from history that over the last ten years the courts have adjudicated upon a fair number of cases challenging permanent exclusions from schools. It is therefore evident that parents will take these challenges as far as possible to protect the interests of their child.

Schools must think carefully about permanent exclusions and to look at this ?as a very last resort. Document everything, justify the decision with reference to the evidence and explain the decision-making process in writing in layman language so parents fully understand how the decision to exclude has been arrived at.

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