1. 1 EXCLUSION APPEALS Roger Butterfield Butterfield Consultancy Ltd

2. 2 Duties of the Governing Body Must make and from time to time review a statement of discipline and good behaviour must ensure the policies are pursued Must consult the head teacher and parents of pupils before making or revising the statement Can direct the head teacher to draw up specific policies

3. 3 Duties of the Head Teacher The measures determined by the head teacher regarding discipline and good behaviour must be publicised in a written document and brought to the attention of parents of pupils and must be brought to the attention of all pupils, parents and persons employed at the school at least once in every school year

4. 4 Who can exclude and how long? Only the head teacher can exclude Head teacher includes “an acting head teacher.” If the head is absent from school then the person acting in their position can exclude It would be good practice for the person acting for the head teacher to be authorised in writing

5. 5 The Head has excluded Where a head teacher has permanently excluded a pupil they must take reasonable steps to inform the parents of a) the decision b) the reasons for the permanent exclusion c) that the parent may make representation about the exclusion to the governing body d) the means by which representations may be made

6. 6 Guidance “Appeal panels, and schools too, must keep in mind that guidance is no more than that.. It is not direction and certainly not rules.” (Lord Justice Schiemann – S v London Borough of Brent and others (17 th May 2002))

7. 7 Disability Discrimination It must be shown: a) the pupil had a disability b) the school was aware of the disability c) the pupil was treated less favourably than a child who did not have a disability d) the school has failed to make reasonable adjustments

8. 8 Disability Discrimination Factors that can be taken into account in considering whether or not reasonable adjustments have been considered include: 1)The need to maintain academic, musical, sporting and other standards 2)Money available 3)Cost

9. 9 Disability Discrimination 4)The availability of provisions through the Special Educational Needs Law 5)The practicalities of making a particular adjustment 6)The health and safety of the disabled pupil and others 7)The interest of other pupils

10. 10 Disability discrimination Example - The pupil with hearing impairment is rude to classroom assistant - Assistant speaks & signs to her not to be rude - Pupil swears at her - Given 6 day fixed period exclusion - Assume = ‘disabled pupil’

11. 11 Disability discrimination – Eg. (cont) Is it less favourable treatment - For reason related to child’s disability? - than someone gets if that reason does not apply to them? - that can be justified?

12. 12 Disability discrimination – Eg (cont) What is less favourable treatment? - Being excluded What is reason for less favourable treatment? - Swearing Does reason for less favourable treatment relate to her disability? - Disability (hearing impairment) involves poor hearing - Swearing is NOT directly related to her disability - Thus reason (swearing) for less favourable treatment (exclusion) does NOT relate directly to her disability Thus NOT unlawful

13. 13 Permanent Exclusion Decision to exclude a child permanently is a serious one Usually the final step An acknowledgement that the school has exhausted all available strategies

14. 14 Permanent Exclusion The decision to exclude a pupil should be taken only a) in response to serious breaches of the school’s behaviour policy and b) if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

15. 15 Permanent Exclusion A one-off offence should not normally lead to permanent exclusion however in exceptional circumstances it may be appropriate to permanently exclude for a first or one- off offence

16. 16 Permanent Exclusion There will, however, be exceptional circumstances where, in the head teacher’s judgement, it is appropriate to permanently exclude for a first or one-off offence. These might include: a)serious actual or threatened violence against another pupil or a member of staff b)sexual abuse or assault

17. 17 Permanent Exclusion c)supplying an illegal drug d)carrying an offensive weapon d)use or threatened use of an offensive weapon (Wales) These instances are not exhaustive, but indicate the severity of such offences and the fact that such behaviour can affect discipline and the wellbeing of the school community

18. 18 Permanent Exclusion Where a head teacher has permanently excluded a pupil for a) one of the above offences or b) persistent and defiant misbehaviour including bullying or repeated possession and/or use of an illegal drug on school premises The Secretary of State would not normally expect the governing body or an independent appeal panel to reinstate the pupil

19. 19 When to exclude Any penalty imposed must be proportionate to the offence (R v London Borough of Newham ex parte X(1995) ELR 303) Exclusion should not be imposed in the heat of the moment unless there is an immediate threat to the safety of others in the school or the pupil concerned

20. 20 When to exclude Before deciding whether to exclude a pupil either permanently or for a fixed period the head teacher should a) ensure that a thorough investigation has been carried out b) consider all the evidence available to support the allegations taking into account the school’s policy c) allow and encourage the pupil to give his or her version of events

21. 21 When to exclude d) check whether the incident may have been provoked e.g. by bullying or by racial or sexual harassment e) if necessary consult others but not anyone who may have a role in reviewing the head teacher’s decision

22. 22 Burden of Proof Balance of probabilities i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, the head teacher may exclude the pupil The more serious the allegation the more convincing the evidence substantiating the allegation needs to be

23. 23 Burden of Proof This is not the criminal standard of proof i.e. beyond reasonable doubt When investigating more serious allegations head teachers will need to gather and take account of a wider range of evidence extending in some instances to evidence of a pupils past behaviour

24. 24 Same Incident Same Penalty? Pupil had fireworks in his bag Previous incidents involving fireworks had let to some fixed term exclusions and some permanent exclusions Pupil was permanently excluded for being in possession of the fireworks The High Court said there was no evidence that, because the pupil was permanently excluded that decision was excessive (R (A) v Head Teacher and Governing Body of North Westminster Community School and the City of Westminster Exclusion Appeal Panel 2003 ELR 378)

25. 25 The Police Are Investigating Incident of arson Police investigated Head teacher did not interview the pupil before excluding him for a fixed period

26. 26 The Police Are Investigating In the High Court the judge said that the Legislation and the Guidance does not require a head teacher to interview a pupil suspected of a serious crime before deciding on a temporary exclusion but stressed that very different considerations apply to a permanent exclusion. (Ali v The Head Teacher and Governors of The Lord Grey School (27 th June 2003))

27. 27 Alternatives to Exclusion Has the head teacher considered all the alternatives to exclusion including: a) restorative justice b) mediation c) internal exclusion d) managed move

28. 28 When Should Exclusion Not Be Used a)Minor incidents such as failure to do homework or to bring dinner money b)Poor academic performance c)Lateness or truancy d)Pregnancy

29. 29 When Should Exclusion Not Be Used e)Breaches of school uniform rules on appearance (including jewellery and hairstyle) except where these are persistent and in open defiance of such rules (and where all other avenues for resolving the uniform dispute have been exhausted) f)Punishing pupils for the behaviour of their parents, for example where parents refuse or are unable to attend a meeting

30. 30 Activities Outside School Behaviour outside school on school business e.g. school trips, sports fixtures or work experience placements are subject to the school’s behaviour policy Behaviour in such circumstances can be dealt with as if it had taken place in school Behaviour outside school, not on school business, if there is a link between that behaviour and maintaining good behaviour and discipline among the pupils of the school the head teacher may exclude the pupil

31. 31 Governors in Action Role = to review exclusions imposed by head (who alone has power to exclude) - Cannot increase severity of exclusion e.g. by extending period of Fixed Period Exclusion or imposing Permanent Exclusion for Fixed Period Exclusion Can - Uphold exclusion - direct reinstatement immediately or by particular date

32. 32 Appeal to Independent Appeal Panel No appeal may be made after the 15 th school day after the day in which notice in writing is given of the decision Notice stating that the parents do not intend to appeal against the decision not to reinstate a pupil is final

33. 33 Appeal to Independent Appeal Panel An appeal panel shall consist of 3 or 5 members appointed by the authority from: a) persons who are eligible to be lay members b) persons who are, or have been within the previous 5 years, head teachers of maintained schools, and c) persons who are or have been governors of maintained schools provided they have served as a governor for at least 12 consecutive months within the last 6 years and who are not teachers or head teachers The appeal panel must be chaired by the lay member

34. 34 Appeal to Independent Appeal Panel The appeal hearing must take place within 15 school days of the day on which the appeal is lodged If the parents request a hearing later than 15 school days the clerk can contact the panel members ask if they are in agreement to this and if they are minute that a meeting took place within the 15 school days and agree to the adjournment

35. 35 Appeal to Independent Appeal Panel Steps should be taken to ascertain any dates which are inconvenient for the parents or any other person who wishes and would be entitled to appear The clerk should circulate all written evidence to all parties 5 working days before the hearing

36. 36 Appeal to Independent Appeal Panel The following are entitled to attend and be legally represented a)The parent or, if aged over 18 the pupil b)The head teacher c)The governing body d)The local authority The Council on Tribunals should be notified of all hearings

37. 37 The Role of the Local Authority “The role of the local education authority in any exclusion hearing is a very sensitive one. The representations which it can properly make must be calculated to assist the committee or panel must bear the hallmark of clinical objectivity.” (R (A) v The Governing Body of Kingsmead School and another (13 th March 2002)) “The LEA must maintain a completely objective stance.” (S and others v London Borough of Brent and others 17 th May 2002)

38. 38 Procedure at the Hearing by an Appeal Panel It is for the appeal panel to decide how to conduct the proceedings which should be reasonably informal so all parties can present their case effectively Sufficient time must be allowed for each party to put their case A pupil is not to be reinstated merely because of a failure to comply with any procedural requirement by the governing body or the head teacher

39. 39 Decisions the Appeal Panel Can Make a)Uphold the exclusion b)Direct that the pupil is to be reinstated either immediately or at a date specified by the panel or c)Decide that because of exceptional circumstances or for other reasons it is not practicable to give a direction requiring his reinstatement but would otherwise have been appropriate to give such a direction In Wales b) reads “overturn the decision to exclude and direct reinstatement

40. 40 What Must the Panel Decide 1)Whether the head teacher and the governors complied with the law and had regard to the Guidance 2)The schools published behaviour policy 3)The fairness of the exclusion in relation to the treatment of any other pupils involved in the same incident

41. 41 What Must the Panel Decide Where panels accept the individual committed the offence in question they must consider whether the response is proportionate and also be satisfied that the disciplinary process has been carried out without any procedural irregularities of the kind that affect the fairness of the procedure or the governor’s findings. Satisfied on all these points, it would be unusual for the panel to vary the governing body’s decision. In reaching their decision the panel must balance the interest of the excluded pupil against the interests of all the other members of the school community

42. 42 Independent Panel Procedure Combined appeals If same/connected issues raised by 2 or more appeals Should check no-one objects Should be aware of possible conflicts between parties

43. 43 Independent Panel Procedure (cont) In advance of hearing - Clerk must take reasonable steps to ascertain when parties available arrange suitable (neutral, accessible & private) venue -Ascertain if any alleged victim wishes to have a voice at the hearing in person, by being represented or submitting a written statement

44. 44 Independent Panel Procedure (cont) - Excluded pupil under 18 should be encouraged to attend & speak if they want to & parent agrees - Cannot compel witnesses to attend - no automatic right to cross examine witnesses

45. 45 Independent Panel Procedure (cont) Conduct of appeal hearing - Reasonably informal - Tape-recording should be avoided - Chair outlines procedure & explains that panel independent of school & LEA - No party attending hearing must be alone with panel in absence of any other party

46. 46 Independent Panel Procedure (cont) Evidence & witnesses - Physical evidence should be retained & available - All parties may put forward new evidence Should have opportunity to respond - School may NOT introduce new reasons for exclusion - Pupils of school Normally rely on written statements May appear as witnesses if do so voluntarily & with parent’s consent

47. 47 Independent Panel Procedure (cont) - Should be sensitive to needs of child witnesses - Written witness statements must be attributed, signed and dated unless school has good reason to wish to protect pupil’s anonymity (but then should still be dated) - General principle remains that accused person entitled to know substance of accusation

48. 48 Anonymous Statements In R (T) v Head Teacher of Elliot School and others (2003) ELR 160 the Court of Appeal held that appeal panels can consider anonymous statements and decide how much weight to attach to them. However before doing so they should consider: 1) Was the person who made the statement a well known liar or a person with a biased motive 2) The fact that the person making the statement was not known to the other side may possibly prevent the other side calling evidence which would cast doubt on the reliability of the statement

49. 49 Anonymous Statements 3)Has the panel been told anything which might qualify or cast doubt upon the anonymised statement 4)Can the excluded pupil be expected to deal with the issues raised in the anonymous statement without knowing the identity of the maker of 5)Is the injustice of using them greater than the injustice of not using the anonymous statement? The principle is fairness and the panel’s task is to find the least unfair course 6)If the panel decide to allow the anonymous statement to be used they must decide how much weight to attach to it

50. 50 Independent Panel Procedure (cont) - If IAP upholds permanent exclusion Clerk should - immediately inform LA (including home LA) ≫ If pupil of compulsory school age, pupil’s home LA to make arrangements as quickly as possible for pupil to continue in suitable full time education - advise parent to contact appropriate person at home LA about arrangements for child’s continuing education Head should remove pupil’s name from school roll day after conclusion of appeal

51. 51 Independent Panel Procedure (cont) - If IAP reinstates Should immediately inform head & specify date on which pupil must be readmitted - Details of exclusion may NOT be deleted from pupil’s record even if reinstatement directed - GB must comply with parental request to append appeal statement to pupil’s record - GB decides what details of exclusion to include in pupil’s school record

52. 52 Reasons for Decisions The appeal panel must explain, however briefly why the exclusion has been upheld The reasons for the exclusion must be supported by evidence

53. 53 Do You Know Anyone? Any member of a committee who had any involvement with either party must withdraw unless they were satisfied there could not be a reasonable doubt about their ability to act impartially

54. 54 Rules of Natural Justice Independent appeal panels must comply with the rules of natural justice:- a) details of the conduct complained of must have been provided b) all parties must be given an opportunity to put their case c) no person who has any involvement in the matter should be involved in the decision making process d) the proceedings must be conducted in such a way that no outsider could consider there was any unfairness or bias on the part of anyone involved

55. 55 Human Rights Act 1998 Independent appeal panels are public authorities within the Human Rights Act 1998 Article 2 of the First Protocol provides that no person shall be denied the right to education Expulsion from a school does not automatically breach Article 2 of the First Protocol but there is then a duty on the local education authority to arrange suitable education for the child/pupil (Ali v the Head Teacher and Governors of Lord Grey School (27 th June 2003))

56. 56 Human Rights Act 1998 THE PRINCIPLE OF PROPORTIONALITY All appeal panel decisions must be proportionate i.e. a fair balance between the protection of individual rights and the interests of the community at large. Are there: a)Relevant and sufficient reasons for the decision b)Has the panel considered all the options available c)Has there been a fair hearing d)Is there a right of challenge to the decision