Exclusions from School have been much talked about of late. New and imminent changes are around the corner as a result of the Education Act 2011 (which received royal assent on 11th November 2011). These changes will be applicable for exclusions imposed after 1st September 2012. New Guidance and Regulations shall also apply after 1st September 2012. Some of the noticeable changes include the power for schools to issue same day detentions, the ability to search pupils for prohibited items without consent if there are reasonable grounds to believe that a pupil is in possession of a prohibited item, teachers will be protected by false allegations made by pupils and Independent Appeal Panels will be replaced by an Independent Review Panel to determine exclusions.
There has also been widespread discussion following the release of the recent report by the Office of the Children’s Commissioner issued on 19th March 2012. 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, the evidence, allowing the pupil in question to give his/her 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, 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. Schools must ensure that they do not discriminate against pupils and comply with the principles of the Equality Act 2010. They must also have regard to any special educational needs the pupil may have.
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 pupils, following an appeal, cannot be reinstated by an Independent Review Panel and its decision will not be binding. It can merely give recommendations. The Independent Review Panel can uphold the decision to exclude, recommend 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. 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.
There is speculation by lawyers 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. 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. 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.
Anita Chopra is a Director at Match Solicitors
Anita Chopra is a Director at leading education law firm Match Solicitors. Her specialisations include appeals against the contents of a Statement of SEN, admissions, exclusions, private schools, teacher regulation, as well as other related issues.
Match Solicitors is a leading education law practice, specialising in matters relating to higher education, further education and schools, including admissions appeals, non-payment of fees and bullying, plagiarism and cheating; fitness to practice hearings; PhD issues including supervision and progress; teacher employment issues, disability discrimination; complaints; OIA complaints; breach of contract and negligence.