The DfE has launched a consultation on revised statutory guidance and regulations for exclusions from schools and Pupil Referral Units (PRU's) in England, which closes on 17 February 2012. The new exclusion process will start in September 2012. There are a number of key points in the consultation.
The draft guidance provides that the decision to exclude needs to be robust, fair and defensible; it is explicitly stated that this is the test to be applied by the governing body taking account of the legislative duties of the Head Teacher, the guidance and any relevant information about a pupil's special educational needs (SEN) when the matter comes before them.
The previous system of Independent Appeal Panels (IAPs) has been replaced. Where a parent disputes the decision of the governing body to uphold the Head Teacher's decision to permanently exclude a pupil, they can ask for the decision to be reviewed by an Independent Review Panel (IRP). In addition, where there are allegations of disability discrimination, parents can now take a case to the First Tier Tribunal (HESC). Cases involving allegations of other discrimination grounds can be taken to the County Court. There is a requirement placed on the governing body to expressly inform parents of these rights in the decision letter following the governors' consideration of the exclusion.
An IRP does not have the power to reinstate an excluded pupil. Where a panel decides that a governing body's decision is flawed on the judicial review principles of illegality, irrationality, procedural improprietary or proportionality, for example where an error has been made in law or in the procedures followed, it can direct a governing body to reconsider its decision. If the governing body does not offer to reinstate the excluded pupil the panel will be expected to direct that the school makes a payment of £4,000 to the Local Authority towards the cost of alternative provision, in addition to the funding that would normally follow the excluded pupil.
Whether or not a school recognises that a pupil has SEN, it is proposed that all parents have the right to request that a SEN expert to attend an IRP at no cost to the parents. The expert's role is to provide impartial advice to the panel about how SEN could be relevant to the exclusion and whether the school met its legal duties in relation to SEN when excluding the pupil.
It is recognised within the consultation that parents and the excluded pupil have a right to be legally represented both before the governing body and the IRP.
Whilst the IRP cannot order reinstatement, both the First Tier Tribunal and the County Court can do so when discrimination claims have been successful, and in the County Court it is possible for both damages and costs to also be awarded, thus schools will need to ensure that decisions to exclude are indeed robust, fair and defensible.
For further information, please contact Tracey Eldridge-Hinmers on 020 7665 0802.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
