Exclusion zone

School gate iStock 000003257894XSmall 146x219Satnam Virdi examines new statutory guidance issued by the Department for Education that will apply to school exclusions from 1 September 2012.

The Department for Education has recently (May 2012) issued new Statutory Guidance. It will govern exclusions which take place from 1 September 2012 from maintained schools, pupil referral units and Academies (including Free Schools).

The new Guidance is a slender 34 pages, compared to the 80 pages of the 2008 Guidance, which it will replace. It is certainly a leaner document; but is it also meaner?

As in the previous guidance, permanent exclusion should only be used as a last resort, in response to serious or persistent breaches of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. Schools should, as far as possible, avoid excluding permanently any pupil with a statement of SEN or a looked after child. The governing body in considering exclusion should have regard to the interests and circumstances of the excluded pupil and the interests of other pupils and people working at the school.

Those fundamentals have not changed. However, as stated by the School’s Minister, the government’s policy objective was: “When head teachers decide that they have no choice but to expel a persistently disruptive or uncooperative pupil that decision must not be undermined by an appeal process which can result in the pupil returning to the school against the wishes of the school and its leadership”.

There are some major changes from the current regime. Firstly, Independent Review Panels (“IRPs”) will replace the current Independent Appeal Panels (“IAPs”). The name change signposts a significant reduction in their powers; IRPs will not have the IAP’s power to reinstate a permanently excluded pupil. At most, they can “quash” a sufficiently bad decision (on judicial review principles), and “direct” the governing body to “reconsider the exclusion”. In that situation, the IRP can also order that, if the governing body does not reverse its decision to permanently exclude within 10 days, it must pay £4000 from the school budget to the local authority. The same sanction will apply to Academy Trusts where their IRP concludes the permanent exclusion was flawed on judicial review grounds.

If the IRP is unhappy with the decision to permanently exclude, but do not consider that it is so flawed so as be unlawful on judicial review principles, they can simply recommend re-consideration by the governing body of the decision, but in that case there can be no £4000 Sword of Damocles. The third option is of course for the IRP to uphold the decision to exclude.

The other significant difference will be the brand new participation of impartial “SEN Experts” at review hearings who will provide advice to the Panel about how SEN could be relevant to the exclusion. It seems that the Government no longer considers that the inclusion of a Panellist who is or has recently been a head-teacher is a sufficient guarantee of expertise on SEN aspects. The parent has the right to insist on the SEN Expert attending, even if the school does not consider SEN issues to be relevant. The SEN Expert’s role is “analogous to an expert witness, providing impartial advice to the IRP on how special educational needs might be relevant to the exclusion”.

The Guidance states that these Experts will focus on whether the school’s policies which relate to SEN, or the application of those policies in relation to the excluded pupil were legal, reasonable and procedurally fair. These experts will need to tread a careful tightrope because the Guidance also warns them that they “should not criticise a school’s policies or actions simply because they believe a different approach should have been followed”. Local authorities will need to start to draw up lists of such experts, and perhaps consider exchange arrangements with adjoining authorities. Where such experts are not employees, remuneration may have to be considered as a matter of policy.

To summarise, the IRP will have three possible decisions:

  • Quash the decision and direct that the governing body considers the exclusion again on pain of the £4000 penalty if they do not change their mind; or
  • Recommend that the governing body reconsiders their decision; or
  • Uphold the exclusion decision.

As now, new evidence may be presented to the IRP. However, when considering whether to “quash” (1 above), Panellists, according to the Guidance, “must” only take account of the evidence that was available to the governing body at the time of making their decision or is evidence which “would or should” have been available to the governing body if they had had been acting reasonably. This could be an abstract and difficult exercise. Presumably, the Panel may sometimes need to review the minutes of the governing body carefully to compare what evidence was before them. Remember, the SEN Expert’s contribution will almost certainly not have been heard in advance of the IRP hearing, as SEN Experts have no role at the original governing body meeting. It is quite possible that the pupil themselves may not have attended the governing body meeting but chooses to give oral evidence at the IRP.

More confusingly, if the IRB decide not to quash wearing their “no new evidence” hat on, when they move on to Option 2, i.e. whether there should be a simple request to the GB to reconsider, they are allowed to have regard to such new evidence, even though it was “unreasonable to have expected the governing body to have regard to it.”

Local authorities (and their legal departments) will want to ensure that the first IRPs are comfortable with performing their judicial review type analysis, as this is quite different and less instinctive than the merits re-hearing approach they will have been used to carrying out as IAP Panellists. Where clerks are themselves not legally qualified, they may also need some re-training. Such clerks who have experience of clerking infant class size appeals may already have some familiarity with Wednesbury type arguments.

Panellists (and parents) may be confused at the idea that they can “quash” a decision because it is so bad as to be unlawful but that it will not therefore definitely be reversed.

Where the decision is not upheld by the IRP, the GB will then have to reconsider the exclusion. They are not required to follow the IRP’s recommendation. Clearly decision letters will need to be drafted carefully and, on occasion, with a view to trying to persuade the governing body to reinstate the pupil. Failure to reinstate the pupil after re-consideration, following a quashing order however, will lead to the budget adjustment of £4,000. However, it is difficult to see what visible benefit the pupil or parent will receive from such a transfer of funds from the school to the local authority. Governing Bodies who unreasonably refuse to reinstate a pupil despite a “quashing” order, in effect a declaration of unlawfulness, by the IRP, could be susceptible to High Court judicial review challenges. Governing Bodies themselves, aggrieved by the IRP decision and the £4000 penalty may even decide to judicially review the IRP.

It will be interesting to see how the new IRPs fare in the next academic school year.

Satnam Virdi is Principal of SV Law, Solicitors. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..