Exclusions and Reviews

Key Points Permanent exclusion should only be used as last resort Decision to exclude must be lawful reasonable and fair A permanent exclusion must be in response to serious or persistent breaches of the Behaviour policy and/or if to allow the pupil to remain in school would seriously harm the education or welfare of the pupil or others within the school Under Equality Act 2010 schools must not discriminate against pupils on the basis of protected characteristics, such as their sex, disability, race, religion or belief, sexual orientation, pregnancy or gender reassignment,

Key Points Where there is an allegation of discrimination under Equality Act 2010 in relation to fixed period and or permanent exclusion parents can make a claim to the First-tier Tribunal for disability discrimination If parents dispute a decision with regard to a permanent exclusion they can ask for an Independent Review Whether or not school recognises a pupil has Special Educational Needs an SEN expert can be requested by the parent for the Independent Review Panel Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process

Types of exclusion Fixed period – must not exceed 45 days in any one academic year exceptionally fixed period can be changed to permanent Lunchtime is counted as half school day Permanent a permanent exclusion can be withdrawn before it has been reviewed by the governing body

The role of the governor The Governing Body must consider the reinstatement of an excluded pupil within 15 school days if: the exclusion is permanent a fixed period exclusion and would bring total to 15 or more days in a term result in a pupil missing a public examination, they should consider before the examination date, if not reasonably practical chair of governors may consider independently

The Governing Body Committee Meeting the committee must consist of three or more governors and they should ensure clear minutes are taken as a record of evidence. These must kept and available to all parties on request. They must consider representations made by: parents the headteacher and a representative from the local authority for maintained school or PRU and if requested by the Academy if the pupil is in attendance, a chance must be given for them to give their views, or written evidence of their views

The Governing Body Committee Meeting When establishing facts the governing body must apply civil standard of proof i.e. on the ‘balance of probabilities’ it is more likely than not the fact is true, not ‘beyond reasonable doubt’ The governing body can either:- uphold an exclusion; or direct reinstatement of the pupil immediately or on a particular date

The Governing Body Committee Meeting must consider the interest and circumstances of the excluded pupil, and have regard to the interest of the other pupils and people working at the school ensure all parties are supported and will have their views properly heard, particularly for the student under 18 speaking on behalf themselves where reinstatement not practical, i.e. pupil has already returned after FTE or parents have made it clear they do not wish their child reinstated the governing body must still consider whether the head teachers decision to exclude was justified based on the evidence

The Governing Body must notify parents, local authority of the outcome, (home authority if different) the reason in writing without delay in the case of a permanent, the fact it is a permanent Include right to ask for the decision to be reviewed by an independent review panel the date by which application must be made name and address details of where should be sent the application should set out grounds why, it should also include reference to how pupils SEN is considered relevant to the exclusion the parents right to ask for SEN expert to attend review, even if the school does not feel he/she has SEN

The Governing Body must (cont) details of the role of the SEN expert parents right for representative (at own expense) or friend to attend review parents right to make a claim to SEND (in addition to application to IRP) if they believe exclusion to be as a result of disability discrimination, within 6 months where the decision was upheld advise relevant sources of free and impartial information

Independent Review Panel Panel of 3 or 5 members, the persons eligible are :- lay members who did not work in a paid capacity in schools but previous governors or volunteers school governors who have served for at least 12 consecutive months within last 5 years Head teacher or individual who has been a head teacher within last 5 years Panel members must be impartial and must be trained

Independent Review Panel The following are entitled to attend and be legally represented: the parent,(who may bring a friend) the head teacher the governing body/Management Committee/Board of Directors Academy Trust the local authority Pupils should be encouraged to participate at all stages and if they do not attend their views should be captured The clerk should also ascertain if the alleged victim, if there is one wishes to be given a voice. Pupils may appear as witnesses voluntarily with their parent’s consent. If parents make a claim under Equality Act 2010 or a County Court the IRP must not delay the meeting, although they can adjourn it. Parents can make an application to IRP if they did not attend or make written representations to the governing body when considering the exclusion.

Independent Review Panel panel need to observe procedural fairness, rules of natural justice, and duties of headteacher and governing body under Equality Act 2010 and effect of section 6 Human Rights Act 1998 a standard or proof balance of probabilities not beyond a reasonable doubt must appoint an SEN expert if requested by parent who should be a professional with first-hand experience of the assessment and support of SEN, as well as an understanding of the legal requirements on schools in relation to SEN and disability. Following the review the panel can decide to: uphold the decision recommend that the governing body reconsiders their decision or new evidence can be presented but not new reasons quash the decision and direct that the governing body consider their decision again They cannot direct reinstatement but SEND can

Independent Review Panel decision is binding the panel may only quash the decision where it considers the governing body’s decision was flawed when considered in the light of the principles applicable on an application for judicial review Illegality – did headteacher/governing body act outside scope of the legal powers to exclude Irrationality – was the decision of the governing body not to reinstate the pupil so unreasonable that it was not the decision a sensible person would have made? Procedural impropriety – was the process of exclusion of the governing body’s consideration so unfair or flawed that justice was clearly not done?

Independent Review Panel if the outcome of IRP recommend that the governing body reconsiders their decision this must be within 10 days – the governing body decide whether reinstatement is appropriate If the outcome is to quash the decision and direct the governing body consider the exclusion again this must be within 10 days. when reconsidering, if the governing body does not direct reinstatement the school can be charged a re-adjustment on the budget share of £4,000 – only if quashed