DEVELOPING EXCELLENCE TOGETHER Webinar Exclusions from schools – an update Richard Freeth Browne Jacobson Download the slides at

DEVELOPING EXCELLENCE TOGETHER Agenda Current position Key documents What has stayed the same? What can we change? Questions…

DEVELOPING EXCELLENCE TOGETHER Agenda DfE introduced new exclusions guidance on 9 December 2014 for implementation on 5 January DfE withdrew guidance on 2 February to address “some issues with process”. Threat of legal challenge by childrens’ charity – failure to consult and have regard to PSED and guidance took away safeguards and made it easier to exclude.

DEVELOPING EXCELLENCE TOGETHER Key documents Section 51A Education Act 2002 & Education (Pupil Exclusion & Reviews) (England) Regulations Exclusion from Maintained Schools, Academies and PRUs in England (DfE June 2012). Caselaw on exclusions – R(CR) v IRP for LB Lambeth (2014). Must have regard to DfE guidance i.e. follow unless you have a good reason to depart.

DEVELOPING EXCELLENCE TOGETHER Current position (1) Framework provides for 3 stage process: Principal’s decision to exclude Governing Body review of decision Independent Review Panel decision But may be 4 th if IRP directs/recommends reconsideration by GB. Will be based on flaws in original GB decision.

DEVELOPING EXCELLENCE TOGETHER Current position (2) Exclusion is a sanction of last resort and decision must be lawful, rational, reasonable, fair and proportionate. HT decision to permanently exclude still based on two limbed test – serious breach/persistent breaches of behaviour policy AND where allowing the pupil to remain in school would seriously harm the education/welfare of pupil or others in school. Tests for GB review and IRP review remain based on key criteria – lawful, reasonable and procedurally fair.

DEVELOPING EXCELLENCE TOGETHER Governing Body Hearing Must invite: Parent (and a representative) Headteacher LA representative (as an observer at academies) Must allow parents and headteacher to make representations. LA can only make representations with GB consent.

DEVELOPING EXCELLENCE TOGETHER LA role at GB and IRP hearings Withdrawn guidance set out a role for the LA – based on caselaw from 2002 (S v LBC Brent). If allowed to make representations must be fair and impartial. Must not press for school or parent’s case. Not there to prevent lawful, reasonable and fair use of exclusion. Provide advice on wider issues and what other schools do etc.

DEVELOPING EXCELLENCE TOGETHER IRP - Evidence When considering whether to quash the GB decision, IRP should only take account of evidence that was considered by GB at that hearing or evidence that would have been available if GB acted reasonably. IRP may consider new evidence to quash decision only when satisfied that new evidence shows that the GB made a material error – misunderstood or ignored a relevant fact – which gave rise to unfairness (based on CR).

DEVELOPING EXCELLENCE TOGETHER IRP decision Stage 1 – IRP to consider whether it should quash GB’s decision and direct reconsideration by GB. A decision to quash can only be made where the GB decision was flawed “in light of the principles applicable to judicial review”. Where the panel directs reconsideration, GB must do so within 10 school days. If GB do not reconsider within 10 school days or decide not to reinstate, IRP should order fine of £4,000 to be paid direct to LA.

DEVELOPING EXCELLENCE TOGETHER Judicial Review Principles Paragraph Guidance 3 main tests: Illegality Irrationality Procedural Impropriety R(CR) v IRP for LBC Lambeth (2014) – “…is a statement of the requirements of judicial review which is often given in textbooks, but it is not necessarily up to date.” January 2015 guidance based on caselaw.

DEVELOPING EXCELLENCE TOGETHER Illegality Did the Principal or GB act outside the scope of their legal powers in taking the decision to exclude? Was the statutory procedure followed? Was exclusion used for a different “non-disciplinary reason”? Unlawful delegation or fettering of discretion?

DEVELOPING EXCELLENCE TOGETHER Irrationality Was the decision of the GB not to reinstate so outrageous in its defiance of logic or moral standards that it was not one a sensible person could have made? Was decision proportionate? Did GB act in bad faith or take account of irrelevant factors and/or ignore relevant factors (CR 2014 and guidance)? Unreasonable is perverse/irrational – not unfair! Does not mean decision has to be absolutely correct or that IRP would agree with decision, but must be based on logical presumptions.

DEVELOPING EXCELLENCE TOGETHER Procedural Impropriety Was the process of exclusion and GB consideration so unfair or flawed that justice was clearly not done? Relates to practice or procedures which raise expectations that it would be unreasonable to dishonour. Not breach of minor points – something that goes to the heart of the process. Examples: opportunity to be heard, bias, adequate reasons given for decision and equal disclosure of evidence.

DEVELOPING EXCELLENCE TOGETHER IRP decision Stage 2 – IRP to consider whether to recommend that the GB reconsider the decision not to reinstate. Applies where evidence/procedural flaws have been identified which do not meet the criteria for quashing the GB’s decision (grounds for JR not made out) but which the panel believe justify reconsideration of the GB’s decision. IRP can take new evidence into account when making a decision to recommend. Question likelihood of GB reaching a different conclusion on reconsideration if their original decision has not been deemed unlawful by the IRP.

DEVELOPING EXCELLENCE TOGETHER Reconsideration (1) Withdrawn guidance add valuable information to the approach to be taken – consider it as good practice. Must reconsider within 10 school days following notification of direction or recommendation. “CR” – “a bold step for the governing body to fail to follow a recommendation”. After decision, notify parents, Principal and LA.

DEVELOPING EXCELLENCE TOGETHER Reconsideration (2) Key issue – reconsideration must be conscientiously undertaken. Decision must be lawful, reasonable and fair. Must look afresh at decision in light of IRP findings. Whether pupil wants to return to school is irrelevant.

DEVELOPING EXCELLENCE TOGETHER Reconsideration (3) Which governors should take part – same panel, fresh panel, mixture? No need for further representations from parents. May not need to meet parents again. Suggest: quashed – re-run full hearing recommendation – governor panel undertake a paper exercise

DEVELOPING EXCELLENCE TOGETHER What will you get on the day?  Pay policy reform: Lessons learnt and legal pitfalls to avoid  Legal guidance for fairly implementing Family Friendly policies  Step-by-step help to address absence and capability proceedings  Bespoke employment law advice from leading education experts And much more…. Find out more at: For further training opportunities, take a look at our Employment Law in Education conference Taking place on the 6 th May in London

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