Table of Contents
- Q1 exclusions can't be extended or converted
- Q2 implications of 'civil standard of proof'
- Q3 headteachers' responsibilities re notifying parents of exclusion
- Q4 governing body's responsibilities when pupil is excluded
- Q5 role of local authority
- Q6 role of governing body in reviewing decision
- Q7 ensuring accessibility of independent review panel [IRP]
- Q8 role of SEN expert
- Q9 responsibilities of independent review panel [IRP]
- Q10 notifications IRP must make following decision
- Q11 corrected descriptions of legal requirements: governing body decide WHETHER TO REINSTATE, not whether decision correct; IRP to decide whether governing body RIGHT NOT TO REINSTATE; must/should circumstances for IRP adjournment; must/should re amending pupil's educational record; governing body to LOOK AFRESH AT REINSTATEMENT following IRP direction
- Q12 Annex B new non-statutory document for headteachers
- Q13 Annex C new non-statutory document for parents
- Q14 any other views on CLARITY of new material
The head teacher of a maintained school or pupil referral unit in England may exclude a pupil from the school for a fixed period or permanently. "Exclude", in relation to the exclusion of a pupil from a school or pupil referral unit, means exclude on disciplinary grounds. Also applies to academies. [Reference s51A Education Act 2002, commenced in 2012, expanded by 2012 Exclusion Regulations]
Fixed period exclusions in relation to a pupil must not be more than 45 school days in any school year. [Reference 2012 Exclusion Regulations]
Heads duty to notify re fixed period exclusion [Reference 2012 Exclusion Regulations]
Q 1) We have attempted to clarify in paragraph 3 of the Guidance that exclusions cannot be extended or converted. Extending a fixed-period exclusion involves excluding the pupil for a further fixed-period exclusion on the expiry of the original term. The so-called conversion of a fixed-period exclusion into a permanent exclusion involves issuing a further, separate permanent exclusion. This clarification does not have any significant practical consequence on the process or accountability for exclusion decisions.
Is this clearly expressed?
A 1 This clarification is extremely welcome, not just in paragraph 3 but elsewhere in the guidance eg explicitly in new paragraph 34, and implicitly in new paragraph 40. I know personally of two cases in different areas of the country where the family thought that things were starting to turn round and then were abruptly told not to send the young person in any more because the exclusion had been made permanent. Paragraph 3 of the proposed new guidance says
"3. The law does not allow for extending a fixed-period exclusion or ‘ converting’ a fixed-period exclusion into a permanent exclusion. In exceptional cases, usually where further evidence has come to light, a fixed-period exclusion may in effect be ‘extended’ by issuing a further fixed-period exclusion to begin immediately after the first period ends; or ‘ converted’ by issuing a permanent exclusion to begin immediately after the end of the fixed-period."
The 2012 guidance said "In exceptional cases, usually where further evidence has come to light, a fixed period exclusion may be extended or converted to a permanent exclusion."
Q 2) In paragraphs 8, 65 and 137 we have expanded on what is meant by ‘civil standard of proof’. We have attempted to clarify that ‘on the balance of probabilities’ means it is more likely than not that a fact is true and that the decision-maker(s) should accept that something happened if it is more likely that it happened than that it did not happen. This will help those making decisions on exclusions understand how to establish the facts of the case.
Does this insertion make this standard clearer?
Does this insertion explain clearly what is meant by the ‘civil standard of proof’
A 2 No, personally I don't think "something happened" spells out the main point, surely the crux is that the school doesn't have to prove something? It is important for parents to know this is how something will be decided, so that they don't entertain false hopes about the school having to back up allegations with hard evidence. For example, will it meet the civil standard of proof if a pupil is known to have transgressed before, that he or she is "more likely than not" to have done it again, if it comes down to their word against someone else's. A note to this effect should be added to the parents' guidance in Annex C. (Also, for what it's worth, paragraph 65 doesn't seem to have the extra bit about something happened?)
Q 3) In paragraphs 29 and 34 we have attempted to clarify head teachers’ responsibilities regarding notifying parents of an exclusion. The clarifications relate to:
a. providing information about when their child may not be out in public following an exclusion; and
b. notifying parents when they issue a further exclusion.
Are these paragraphs clear?
A 3 In relation to Q4.a. paragraph 29 doesn't seem materially different to current guidance, but in relation to Q4.b. paragraph 34 is better because the reference to an exclusion being extended or converted has been removed, plus paragraph 34 now clearly states that a new notice must be issued.
Q 4) In paragraphs 45 and 75-82 and in section 7, we have attempted to clarify the responsibilities of the governing body when a pupil is excluded. These clarifications relate to:
a. the legislation issued in December 2014 regarding consecutive fixed-period exclusions and their implications regarding arranging alternative provision;
b. the information the governing body must and should provide to parents when deciding not to reinstate their child;
c. the governing body’s duties over removing a permanently excluded child from roll and informing the local authority of this; and
d. its responsibilities for marking the attendance register following an exclusion.
Are these paragraphs clear?
A 4) a. re paragraph 45, I didn't realise this needed spelling out about five consecutive days from successive exclusions, but I'm pleased this addition is now on record and find it to be expressed clearly (I can't see any material difference otherwise)
A 4) b. Paragraphs 75 and 76 are clear about reinstatement, rather than backing up or challenging the head's decision to exclude. The point about bringing a friend (paragraph 80) was already included in the 2012 guidance, ditto the point about no cost to parents for SEN expert (paragraph 81) I would just like to say in relation to making a claim under the Equality Act 2010 to the First Tier Tribunal is not new, and in any event hardly anyone does this. In 2015-16 there were just 14 disability discrimination appeals relating to a child's permanent exclusion from school (table 11)
Q4)c,d section 7 runs from paragraph 83 to 86. The new guidance says the governing body must ensure that a pupil's name is removed from the register, whereas the 2012 guidance said that the headteacher must do this. The new guidance paragraph 83 refers to the governing body's "decision not to reinstate" whereas the 2012 guidance said "decision to uphold a permanent exclusion." The new version is clearer. The new guidance paragraph 84 also has additional information about making a return to the local authority when a pupil's name is deleted from the school roll. I am guessing this follows from the new Pupil Registration Regulations September 2016 although this is not mentioned in the question (More + More) I note that the new guidance paragraph 86 also has an updated interpretation of Code B, ie not just educated offsite, but in "approved educational activity". This has been the case in the Government's School Attendance Advice since March 2013. More on Code B impact on flexischooling)
Q 5) In paragraphs 47-48 and 181-189 we have attempted to clarify the role of the local authority when a pupil is excluded. We have attempted to make clearer:
a. the local authority’s legal duties in arranging alternative education for excluded pupils;
b. the local authority’s duty when a pupil with an Education, Health and Care (EHC) plan is excluded (this is simply an update to reflect that statements of special educational need are being phased out and replaced by education, health and care plans -the policy is unchanged); and
c. its legal responsibilities regarding financial readjustments and payments related to an exclusion.
Are the responsibilities of the local authority clear?
A 5) a. Apart from the addition of EHCPs, paragraph 47 says less than the 2012 guidance. Paragraph 46 about arranging provision following exclusion is the same as 2012. You may not be able to cover this in guidance, but I am aware of a number of authorities where there is confusion as to which team is responsible for arranging AP if the excluded child has a statement/EHCP (or if the EHCP process is not finished), and whether the parent can turn down a placement.
A 5) b. You haven't asked about this but ... SEN exclusions are way too high for fixed period and permanent and this needs to be addressed through regulations. The current figures for primary exclusion with SEN are horrifying and look set to be even worse when new statistics are published. EOTAS provision for primary is woefully inadequate and managed moves are rarely a good solution. Looking at permanent exclusions from primary schools in the most recent statistics, out of a total of 920, 100 had a statement or EHCP while a further 690 received SEN support. In other words, 86% of pupils permanently excluded from primary schools had recognised special needs. At secondary out of a total of 4790 permanent exclusions, 160 pupils had a statement or EHCP while 2180 received SEN support ie 49% of pupils permanently excluded from secondary school had recognised special needs. In terms of fixed period exclusions out of a total of 154,060 pupils across primary and secondary, 14,010 had a statement or EHCP and 54,960 were receiving SEN support ie 45% of pupils with fixed period exclusion had recognised SEN while at primary alone the rate is a massive 70%. [LINK]
A 5) c.New points regarding funding in paragraphs 183 -186 seem clear. Paragraphs 187 - 189 appear the same as 2012
Q 6) In paragraphs 56-57, 172 and 176-180 we have attempted to clarify the role of the governing body in reviewing an exclusion decision. The clarifications relate to:
a. its duty regarding reviewing exclusion decisions that take a pupil’s number of days excluded to between 5 and 15 in one term;
b. what it should do when an exclusion means a pupil would miss a public examination or national curriculum test; and
c. how the governing body should approach reconsideration of its decision when recommended or directed to do so by an IRP.
Do these revisions improve clarity in these areas of the governing body’s role?
A 6) a. I am aware that the question doesn't mention paragraph 55 but it seems relevant here. 55 says "The governing body must consider the reinstatement of an excluded pupil [...] if: [...] it is a fixed-period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term...". Paragraph 56 goes on to say "the governing body must consider within 50 school days of receiving the notice of exclusion whether the excluded pupil should be reinstated." This does not improve on the 2012 guidance. Is it saying that if a pupil is excluded for less than 15 days in a single term, parents can ask the governing body of the school for the child to be allowed back in? Why does it say “reinstated”? The question refers to “reviewing exclusion decisions” and I think this is more accurate in this context than the word “reinstatement.” Also why might it take 50 days to think about it? Is this maybe about striking the exclusion off the record? In which case why use the word "reinstated?" which suggests to me putting the pupil back on roll.
A 6) b. By comparison with the 2012 guidance, the new paragraph 57 actually explains what it means to be practicable (having a sufficient number of governors), and also gives new instructions to academies with reference to their articles of association, so this is clearer.
A 6) c. Paragraph 172 of the new guidance is clear about consideration of reinstatement even where the panel has not directed this, but simply "recommended" it. This is welcome. The point about looking afresh appears to be new. In addition, the points in paragraph 180 about how reinstatement should be on the pupil's educational record even where the family has indicated the pupil will not be returning is quite clear and I hope will make a positive difference. Families are very worried about exclusion being on the pupil's record and will sometimes withdraw for home education even when they don't think this is right, purely to avoid the stigma of the exclusion being on record. In this blog post from a couple of years ago I warned parents how a pupil who had previously been excluded but who now seemed to be turning things round and getting mostly positive feedback, could be permanently excluded, seemingly out of the blue, without even having to be attending school at the time; parents might receive a letter while a child is temporarily excluded informing them that a permanent exclusion has now come into effect.
7) In paragraph 93 we have attempted to make clear that it is a legal duty for the local authority and academy trust to make sure any independent review panel is accessible to all parties. Is this new addition clear?
A 7 Paragraph 93 says
"The venue must be accessible to all parties. [When arranging a venue for the review, the local authority / academy trust must comply with its duties under the Equality Act 2010 and consider what reasonable adjustments should be made to support the attendance and contribution of parties at the review (for example where a parent or pupil has a disability in relation to mobility or communication that impacts upon his / her ability to attend the meeting or to make representations)]
This appears to be new and is to be welcomed, although the example of "a disability" could suggest that this requires a formal medical diagnosis, and I would suggest adding "or difficulty" so it would read "where a parent or pupil has a disability or difficulty in relation to mobility or communication that impacts upon his/her ability to attend the meeting or to make representations"
Q 8) In paragraphs 76d and 125-130 we have attempted to clarify the role of the Special Educational Needs (SEN) expert to an IRP. This includes attempting to clarify:
a. The role of the SEN expert at an IRP ; and
b. the experience and expertise the expert should have.
Do the revisions make these elements of the SEN expert role clear?
A 8) b. -----
Q 9) In paragraphs 142, 155, 157 and 158-159 we have attempted to clarify the responsibilities of the IRP in coming to a decision about an exclusion. This includes attempting to clarify:
a. the evidence the panel should consider;
b. what the panel should do if it is aware that the parents do not want their child to return to the excluding school;
c. what knowledge of the exclusion process is expected of the panel; and
d. what tests the panel should apply when making a decision on the exclusion.
Are these paragraphs clear?
A 9) b. It is helpful that paragraph 155 says "where parents are not seeking reinstatement for their child, this fact should be acknowledged by the panel but it should not affect the conduct of the panel or its decision. Recording of the panel’s findings on a child’s educational record and an acknowledgement by the governing body that it would be appropriate for it to offer to reinstate the pupil are both potential outcomes in these circumstances."
A 9) c. in relation to knowledge of the exclusion process, paragraph 158 says "panels are expected to understand the legislation that is relevant to exclusions and the legal principles that apply." I think this is too vague. Are panel members expected to have looked at the legislation or simply to this guidance? I also think paragraph 157 is mixed up when it says "the focus of the panel’s decision is whether there are sufficient grounds for them to direct or recommend that the governing body reconsider its decision to uphold the exclusion." The governing body looks at whether to reinstate s51A (3)(b) Education Act 2002. The review panel looks at whether to uphold the governing body's decision s51A (4) Education Act 2002.
A 9) d. Paragraph 159 sets out tests. However, the phrase "in light of the principles applicable in an application for judicial review" is still not clearly expressed. As explained here on the 11KBW legal blog, the requirement that the IRP apply “the principles applicable on an application for judicial review” has caused headaches for schools, local authorities and excluded pupils up and down the country. What does it really mean in practice? Does an IRP seriously have to consider all possible grounds of judicial review, as the High Court does? Having said that, the new draft guidance does differ from its predecessor in making specific reference to reliance on irrelevant points, and failing to take account of all relevant points. I would dispute that these come under the definition of "irrationality"; it seems to me to be a very big stretch, but it is helpful to have them included.
Q 10) In paragraphs 147,163,170 and 151 we have attempted to clarify the notifications the IRP must make once it has reached a decision. This includes:
a. its duties and responsibilities in ordering financial payments;
b. what it must order the governing body to do following the IRP decision;
c. who it should notify of its decision; and
d. what it should include in the notification.
Do these revisions make it clear what information the IRP notifications must include?
A 10) The question asks about notification but the breakdown of the question also covers financial details. The main difference I take from these paragraphs by comparison with 2012 is the reference to reinstatement, plus upholding the governors' decision, as opposed to upholding the permanent exclusion. There is also an updated reference to academy trusts.
A 10) a.
A 10) b. Paragraph 151 mentions "any information that the panel has directed the governing body to place on the pupil’s educational record" in contrast to the 2012 guidance which says "any information that must be recorded on the pupil’s educational record to reflect the decision" I suppose it is possibly clearer to refer to the panel's direction.
A 10) c. The new guidance mentions notifying the parents and the governing body, not just the local authority.
A 10) d.
Q 11) We have also corrected descriptions of legal requirements that were not clear enough in the previous version. The main corrections are:
a. in paragraphs 60, 66 and 192 that the governing body should decide whether or not to reinstate the excluded pupil, not whether or not the headteacher’s decision to exclude was correct;
b. in paragraphs 138, 143 and 161 that the independent review panel should decide whether or not the governing body was right to not reinstate the pupil, not whether the headteacher was right to exclude the pupil;
c. in paragraphs 149 and 156 that an independent review panel is not legally required to adjourn if unavailable members mean it does not have appropriate representation but that it is advised to do so, bearing in mind the circumstances and potential impact on those involved in the case;
d. in paragraphs 151 and 174 that an independent review panel is not legally required to direct the governing body to amend a reinstated pupil’s record to note that the twice-excluded rule should no longer apply to the pupil. We have, however, advised panels to do so in the statutory guidance; and
e. in paragraph 176 that when an independent review panel directs a governing body to reconsider they must look afresh at the question of reinstating the pupil in light of the findings of the IRP.
Do you agree that the proposed guidance accurately and clearly states the legal position?
A 11) a. Paragraphs 60, 66 and 192 do make reference to reinstatement
A 11) b. Paragraphs 138, 143 and 161 do make it clear that the independent review panel should decide whether the governing body was right to not reinstate the pupil, not whether the headteacher was right to exclude the pupil. The new paragraph 138 also refers to "upholding the governing body's decision" as opposed to "upholding the exclusion decision" which is clearer. However, I am surprised that the question does not ask about when a decision is to be quashed, which is mentioned in paragraph 138. In relation to quashing a decision it would be helpful to add a reference to s51A (4)(c) Education Act 2002 "(c)if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter." Paragraph 151 mentions "any information that the panel has directed the governing body to place on the pupil’s educational record" in contrast to the 2012 guidance which says "any information that must be recorded on the pupil’s educational record to reflect the decision" I suppose it is possibly clearer to refer to the panel's direction. In addition, paragraph 143 has a new point about evidence which the panel "ought to have taken into account" which echoes the expansion of "irrationality" in Q9 and paragraph 161 contains this helpful extra sentence "This could include when new evidence presented at the review hearing was not available to the governing body at the time of its decision."
A 11) c. Paragraphs 149 and 156 say that an independent review panel is not legally required to adjourn if unavailable members mean it does not have appropriate representation. I don't think paragraph 156 is expressed particularly strongly. It seems to be a dilution from the 2012 guidance. There is no definition of reasonable time. I wouldn't envisage anyone feeling especially bound by this, but perhaps that is the aim?
A 11) d. Paragraphs 151 and 174 state that an independent review panel is not legally required to direct the governing body to amend a reinstated pupil’s record to note that the twice-excluded rule should no longer apply to the pupil. We have, however, advised panels to do so in the statutory guidance; I have already noted paragraph 151 in Q10. The previous guidance made explicit reference to the twice excluded rule. The new guidance in paragraphs 151 omits it although it still appears in paragraph 174. The new wording in paragraph 174 also refers to payment being made as well as adjustment, presumably to take account of academies' funding arrangements. I DON'T think there is a good reason to remove twice excluded from paragraph 151. It makes it seem less important.
A 11) e. Paragraph 176 that when an independent review panel directs a governing body to reconsider they must look afresh at the question of reinstating the pupil in light of the findings of the IRP. This appears to be new. I don't understand the part which says "It should, however, take care to ensure that any additional information does not make the decision unlawful." The paragraph is NOT clearly expressed. It appears to want to hint at something without stating it directly. Perhaps this is as far as it can go without legislation being amended?
Q 12) We have produced an additional, non-statutory document for head teachers (Annex B). Is this document helpful for head teachers undertaking an exclusion? Are there any points that would benefit from further clarification?
A 12 Would it be possible to add something about reminding the governing body at the start of the meeting that the grounds for exclusion relate to the pupil's behaviour and breaches of the school discipline policy and are not about making an example, sending a message or ruling that the pupil can't remain on roll because of the actions/attitude of their parents. It would also be helpful to have an Annex with advice for governors.
Q 13) We have included an additional non-statutory document for parents (Annex C). Is this document helpful for parents whose child has been excluded? Are there any points that would benefit from further clarification?
A 13 I'm afraid I don't think the parents' guide is particularly helpful, basically it's just a summary of the rest of the guidance. There are no links to Acts of Parliament or regulations defining exactly when a headteacher may exclude a pupil. The grounds for exclusion relate to the pupil's behaviour and breaches of the school discipline policy. I think there should be more about the civil standard of proof ie that the school doesn't have to prove anything. It would also be good to have tips about looking on the school website for behaviour and discipline policies. Not all parents are aware of the extent of "internal exclusion" in terms of how much a pupil is actually getting into trouble before a fixed period exclusion is imposed. Parents aren't necessarily aware that the school probably won’t issue a fixed period exclusion until various other measures have already been tried, so the full extent of “behaviour management” might not be apparent until parents receive a huge file after the child has been permanently excluded and by then of course it’s too late. It's often not possible for parents to judge how close a child is to being permanently excluded; the school can't exclude the pupil for more than 45 days in a year, but that doesn’t mean a 45 day "allowance", which I have found is a widespread misconception. In addition, parents don't realise that there doesn’t have to be a serious incident before a pupil is permanently excluded, and there’s also no law which says the school has to try everything before permanently excluding a pupil. Families are very worried about exclusion being on the pupil's record and in my experience will sometimes withdraw for home education even when they don't think this is right, purely to avoid the stigma of the exclusion being on record.
Q 14) Do you have any other views about the clarity of this guidance?
A 14 Answering as to content rather than clarity. SEN exclusions are way too high for fixed period and permanent and this needs to be addressed through regulations. The current figures for primary exclusion with SEN are horrifying and look set to be even worse when new statistics are published. EOTAS provision for primary is woefully inadequate and managed moves are rarely a good solution. Looking at permanent exclusions from primary schools in the most recent statistics, out of a total of 920, 100 had a statement or EHCP while a further 690 received SEN support. In other words, 86% of pupils permanently excluded from primary schools had recognised special needs. At secondary out of a total of 4790 permanent exclusions, 160 pupils had a statement or EHCP while 2180 received SEN support ie 49% of pupils permanently excluded from secondary school had recognised special needs. In terms of fixed period exclusions out of a total of 154,060 pupils across primary and secondary, 14,010 had a statement or EHCP and 54,960 were receiving SEN support ie 45% of pupils with fixed period exclusion had recognised SEN while at primary alone the rate is a massive 70%. [LINK] Also perhaps someone could look into the reason why virtually no-one is using the Equality Act 2010 for school exclusions, in 2015-16 there were just 14 disability discrimination appeals relating to a child's permanent exclusion from school (table 11)