Pupil exclusions – is your school getting it right?

Whilst suspensions and permanent exclusions are to be used as a last resort for schools, the Department for Education (“DfE”) is clear that they are an important behaviour management tool. Both the DfE and Ofsted agree that schools must be prepared to use their powers to exclude pupils where necessary.

The legal position regarding exclusions is codified in detailed statutory guidance issued by the DfE. This places significant obligations on schools, and in particular on Headteachers and governors when it comes to pupil suspensions and exclusions.

Only Headteachers have the power to suspend or exclude pupils. Permanent exclusions can only be issued in circumstances where there has been a serious or persistent breach of the school’s behaviour policy, and allowing the pupil to remain in school would seriously harm the education or welfare of others (whether staff or students). In certain cases – including all permanent exclusions – governors (or an appropriate committee of governors or academy trustees) must meet within 15 school days to review the decision, and decide whether to uphold the exclusion or to reinstate the pupil. Governors must consider whether the decision to exclude was reasonable, fair, lawful and proportionate.

In permanent exclusions which are upheld by governors, parents have the right to request that an independent review panel (“IRP”) hearing is arranged to consider the governors’ decision to uphold the exclusion. Parents can also request the attendance of a SEN expert, whether their child has diagnosed needs or not. Whilst the statutory guidance is strict on the composition of an IRP, in multi-academy trusts these may be comprised of governors and a Headteacher from other schools within the trust. All IRP members must have undertaken relevant training in the past two years.

IRPs do not have the legal power to reinstate a pupil – if they disagree with the governors’ decision, they can go as far as ‘quashing’ the decision and directing the governors to reconsider their decision. The governor panel must then meet to reconsider their decision, and decide whether to uphold the exclusion or reinstate the pupil. Upholding the exclusion in these circumstances may trigger an obligation to pay £4,000 to the local authority.

If an IRP decides to uphold an exclusion or governors decide to uphold the exclusion upon reconsideration, the options for further legal challenge from the parents are limited. Perhaps the most common method of challenge is a disability discrimination claim in the SEND Tribunal where the pupil has special educational needs (whether they have an Education and Healthcare Plan (“EHCP”) or not). The number of these claims is increasing significantly year-on-year. The SEND Tribunal cannot award compensation but may order reinstatement of a permanently excluded pupil, with these claims being fast-tracked and granted an urgent hearing.

The other main avenue of challenge is through a judicial review claim to the High Court. These claims are generally complex and expensive to bring, and are therefore relatively uncommon. This case provides a rare and valuable insight into the approach which a High Court will typically take in reviewing a permanent exclusion.

This was a complex permanent exclusion involving allegations of sexual misconduct towards fellow male and female pupils. Schools will be acutely aware that peer-on-peer abuse – particularly of a sexual nature – has been an increasing focus for Ofsted in recent years, reflected by detailed statutory guidance set out in Keeping Children Safe in Education.

The parents instructed a barrister to represent them at both the governor panel hearing (where the exclusion was upheld) and the subsequent IRP. After a lengthy process and careful consideration, by majority the IRP decided to quash the exclusion. They expressed concerns over various points, including:

• Not allowing parents to view CCTV of the incident prior to the hearing.
• Inadequate notes taken of the governors’ deliberations.
• Insufficient reasons provided by the governors to explain their decision to uphold the exclusion.
• Failure to put in place a risk assessment following previous concerns regarding the pupil’s behaviour.
• Too many parent governors sitting on the panel.
• Lack of scrutiny from governors on the extent to which alternative provision was considered.

Seemingly harsher criticisms were made by the IRP of the Headteacher’s extensive role in both investigating the allegations and making a decision on the exclusion.

The pupil’s parents lodged a judicial review based largely around these issues, in addition to procedural criticisms such as the governors not inviting the parents to submit further representations at the reconsideration stage (despite the notable absence of any requirement in the statutory guidance to do so). Concerns were also raised regarding the Headteacher’s apparent reliance on both the ‘persistent’ and ‘serious’ breach elements of the legal test.

In a decision which may provide some comfort and confidence to schools, the High Court rejected all of the arguments advanced on behalf of the parents. Applying the relatively high judicial review thresholds, the High Court found that the governors had reached permissible findings in an appropriate fashion. In particular, they noted that there was no requirement in the statutory guidance on exclusions for a formal risk assessment to be documented, and that the governors had been entitled to find that a ‘dynamic’ risk assessment had been conducted and was satisfactory. The judgment also suggested that a clear delineation between relying on serious or persistent breach was not necessarily required.