The Government has launched a five week consultation, closing on 25 April 2017, on their revised exclusion guidance, Exclusion from maintained schools, academies and pupil referral units in England, which is proposed to be implemented in September 2017.
Like the existing version of the guidance (published in 2012), the revised edition applies to maintained schools, academies and pupil referral units in England. It aims to reflect recent amendments to the law as well as giving greater clarity to head teachers, independent review panels, governing bodies and local authorities on their responsibilities when considering exclusions. In addition, two non-statutory annexes have been added for head teachers and for parents, to help understanding the exclusion process.
The Government expects head teachers, governing bodies, local authorities, academy trusts, independent review panel (‘IRP’) members and special educational needs experts to have regard to this guidance, and for clerks to independent review panels to be trained on and understand this guidance.
The bulk of the existing 2012 guidance remains fundamentally unchanged, however we have commented below on the main proposed amendments.
Exclusion extensions and conversions
Paragraph 3 seeks to clarify that fixed-period exclusions cannot be extended or ‘converted’ in to a permanent exclusion. It may sometimes be appropriate to issue a further fixed-period exclusion or issue a permanent exclusion (both immediately after the original exclusion), however these must be treated as fresh exclusion decisions and are subject to the same decision making and notification requirements as the original exclusion decision.
Paragraph 45 now reflects the position following the implementation of the 2014 amendment regulations that consecutive fixed-period exclusions are regarded as a cumulative period for the purposes of the duties of the governing body. This means that education must be arranged for any pupil of compulsory school age for the sixth day of exclusion, regardless of whether this is as a result of one fixed period or more.
Governing body decision making
Paragraph 71 sets out a revised approach for governors when making exclusion decisions. The governors must decide whether the decision to exclude was lawful, reasonable and procedurally fair, taking account of the head’s legal duties and any evidence that was presented to the governing body in relation to the decision to exclude. The additional wording around consideration of the evidence clearly ties in with the statutory role of the governors set out in paragraph 63 of the draft guidance.
Governing body duty to consider reinstatement
Section 10 of the guidance is updated, making clear that following an IRP decision to direct or recommend reconsideration of an exclusion decision, the governing body’s duty is to reconsider reinstatement. The revised section also includes much-welcome guidance on the process for this reconsideration element. For example, the proposed guidance is explicit that the reconsideration must be undertaken “conscientiously” and clarifies that there is no requirement to seek further representations from the other parties or invite them to a meeting.
Paragraphs 176-180 of the proposed guidance also set out statutory guidance relating to the process for any reconsideration of reinstatement. This includes guidance on:
- the need for clear minutes
- the role of any clerk at this stage
- basing their reconsideration on the presumption that a pupil will return to the school
- how outcomes should be recorded on the pupil’s educational record.
Paragraph 181 now includes a reminder that a local authority cannot require a maintained school or academy to make any additional payments following a permanent exclusion, other than those set out in regulations (including the £4,000 budget readjustment where applicable), or which an academy has to make under its funding agreement. This addition may be helpful for schools who have found themselves subject to exclusion ‘penalties’.
Independent review panel
Paragraph 155 reminds IRPs that they must always make one of three fundamental decisions:
- uphold the Government Body’s decision
- recommend a reconsideration or
- quash the decision.
The proposed guidance also adds that the IRP’s decision must not be influenced by any stated intention of the parents or pupil not to return to the school (paragraph 157). Further, it states that as all decisions of a governing body must be made in accordance with public law, IRPs are expected to understand the legislation and legal principles that apply in judging the lawfulness of the governing body’s decision not to reinstate.
This approach is highlighted in significant changes to the focus of the IRP’s decision making set out in paragraph 159. In the current exclusion guidance, the IRP focus was on the decisions taken by the Headteacher and the Governing Body. The draft guidance shifts the focus on to the governing body alone meaning that governors will need to ensure that their decision making processes are clear and in line with the legislation and that the governor representative is able to fully explain the decision and how it relates to the exclusions framework to the IRP at the hearing. It will highlight the need for clear minutes of the GB hearing as well as the decision making.
The changes, if approved, will make the process very clear. It is for the governing body to review the Headteacher’s original decision and then for the IRP to review the governing body decision. Both reviewing bodies will consider the decisions in light of the key tests of lawfulness, reasonableness and procedural fairness.
Annex B – a non-statutory guide for head teachers
This guide is designed to help schools through the process of exclusions and to ensure that they have sufficient procedures in place. Guidance areas include, but are not limited to:
- behavioural policies
- taking the decision to exclude
- informing parents
- governing body review
- post exclusion action.
Annex C – a guide for parents/carers
This is a helpful guide to parents and carers, although we would advise schools to also familiarise themselves with the guidance.
Guidance areas include, but are not limited to:
- reasons for exclusion
- independent advice
- receiving education after exclusion
- duties as a parent.
The majority of the changes contained in the revised exclusions guidance are attempts to remove ambiguity and confusion about what can be a relatively complex process, rather than representing fundamental changes to the law or policy.
The Department for Education are asking for feedback on how helpful the clarifications to the guidance are and how useful the new annexes will be. We encourage schools to provide this feedback using the consultation system which can be accessed online here