The legal implications of excluding pupils from school
School exclusions, be they 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 headteacher to the governing body. If unsuccessful on appeal, parents have a second right of appeal to an independent appeal panel that has the power to reinstate the pupil and significantly, whose decision is binding on all parties.
Changes in the law
Exclusions have been much talked about of late. New and imminent changes have been introduced as a result of the Education Act 2011 (EA 2011). These changes will be applicable for all exclusions imposed after 1 September 2012 (see boxed out section). New guidance and regulations will also apply after 1 September 2012.
The EA 2011 has made some important changes that affect practices in schools. Schools are well advised to take note of these changes as they affect decision making in a way that is very different to decision making in the current system, and the changes also seek to empower teachers to tackle unruly behaviour in a way which has not been permitted before.
Some of the noticeable changes of the EA 2011 include the power for schools to issue same day detentions (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 and teachers will 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. All the teacher needs is a “reasonable ground” to stop and search. Much of the reasoning behind the changes of the EA 2011 is to give teachers more control in the classroom and greater powers to manage disruptive behaviour of pupils, which appears to be on the increase. Some classrooms are no longer safe environments for teachers, hence the need to protect school staff and other pupils from persistent disruption.
Appealing an exclusion
One of the most significant changes to the current procedure will be 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.
There has also been widespread discussion following the release of the recent report by the Office of the Children’s Commissioner issued in 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 scrutiny of the facts and the evidence, and allowing the pupil in question to give his/her version of events and to make a statement. It is then for the headteacher to make a reasoned decision based on the evidence collated and having regard to the standard of proof – 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 headteacher must protect the interests of the school, s/he must also balance those interests 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.
Exclusions and SEN
Schools must ensure that they do not discriminate against pupils on any grounds, including race, disability, gender and sexual orientation. Schools must also always comply with the principles of the Equality Act 2010 and are bound by the law as set out in the Act. They must also have regard to any SEN the pupil may have. A decision to exclude a child with SEN and one who may have a statement of SEN must be taken very carefully indeed; it should be the last resort after alternatives have been tried and failed.
Most pupils with SEN 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, s/he 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) who have the power to reinstate the pupil to school should they find that s/he has been discriminated against.
A pupil cannot be told to leave the school lawfully by a headteacher unless the formal procedures of exclusion are followed. From September 2012, it will be even more important for headteachers 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.
Challenging review decisions
There is speculation by practitioners in this area of the law 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 an independent review panel to be legally qualified). They will also 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 to be the case 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 and issues that are yet to be resolved.
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 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 look at them as a very last resort. Schools must document everything, justify the decision with reference to the evidence and explain the decision making process in writing, in layman’s language, so parents fully understand how the decision to exclude has been arrived at.
Permanent exclusions from September 2012
Changes in the law and government guidance on exclusions will come into force from 1 September 2012:
- The fundamental principles of public law imported into the decision to exclude will not change. For example a thorough review of the evidence will continue to be a must. This includes obtaining all evidence in relation to the incident including CCTV (if any), statements from witnesses and notes of any interviews with witnesses. Evidence must weigh in favour of permanent exclusion – does excluding the child from the school outweigh the impact on the school community as a whole if the child were to remain? A clear, reasoned letter setting out how the decision to exclude was arrived at must be sent to parents. The child should not be interviewed without a parent/guardian present unless absolutely necessary.
- Parents having the right of appeal against the permanent exclusion to the school’s governing body remains.
- If no reinstatement is ordered, parents will have a further right of appeal to the independent review panel. This is the significant change to the law. The independent review panel replaces the independent appeal panel.
- The decision of the independent review panel will not be binding
- Parents will have the right to challenge the decision of the independent review panel in the High Court by way of judicial review.
Anita Chopra is a Director at Match Solicitors where she specialises in appeals against the contents of a statement of SEN, admissions, exclusions and other related issues: