The Facts of the Case
The parents of pupils at a highly selective school issued judicial review proceedings after pupils who had not achieved B in their mock exams were told that they could not continue to study at the school for the upper sixth year.
In some cases, pupils were asked to sign a contract where they agreed that if they did not get a B, the school could refuse to enter them for their public exams the following year.
When is Exclusion Lawful?
The statutory guidance on exclusions ('the Guidance') sets out that pupils can only be permanently excluded as a last resort, where allowing the pupil to remain would seriously harm the education or welfare of others in the school.
It goes on to say that it is unlawful to exclude for a non-disciplinary reason and lists that exclusion on the grounds of academic attainment and or ability is unlawful.
The DfE recently commented that: "Students enrolled in a sixth form cannot be removed because of academic ability. The law is clear on this and we expect all schools to follow it".
Fine Line Between Advice and Informal Exclusion
When pupils are underperforming, schools need to discuss this with the student as part of appropriate pastoral care, to work together on how to move forward. It can be the case that sometimes A-levels are not the right choice for the pupil and they may wish to withdraw from the course. In other situations the pupil may wish to re-sit the year or take different subjects or pursue different qualifications.
Schools need to ensure that when they are giving this type of advice, they do not open themselves up to a challenge of unlawful exclusion. Schools should clearly record that the pupil has made the decision to withdraw by themselves, with appropriate guidance and support from the school.
Are Your Admissions Policies or 6th Form Prospectuses Falling Foul of the Law?
If your prospectus or admissions policies make any reference to admission to year 13 or expected progress for pupils in year 13, you may wish to consider re-drafting them. Schools should look at revising references to minimum grades being necessary to continuing study or making reference to attendance and attitude to learning.
We anticipate that there will be an increase in parental complaints to the Office of the Schools Adjudicator (OSA) following the press coverage. If the OSA finds that your policies are not compliant, it can require changes to be made. OSA complaints and judgements are published on the OSA website.
What Do You Do Now?
Now would be a good time to review your policies so that any changes can be consulted on in line with the Code's mandatory 6 week consultation period (between 1 October and 31 January). However, any consultation will only cover proposals for admission in September 2019, therefore schools who have issues in their determined arrangements for 2018 entry are advised to apply for a variation in accordance with the provisions of paragraph 3.6 of the Code, and seek the consent of the Secretary of State.
We have recently uploaded a 'Admissions Consultations Guide' to our academies portal Onstream which you may find useful.