Exclusions from schools an update Richard Freeth Browne Jacobson Download the slides at httpbitlyExclusionUpdate Agenda Current position Key documents What has stayed the same ID: 329094
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Slide1
Webinar
Exclusions from schools – an update
Richard Freeth
Browne Jacobson
Download the slides at
http://bit.ly/ExclusionUpdate
Slide2
Agenda
Current position
Key documents
What has stayed the same?
What can we change?
Questions…Slide3
Agenda
DfE
introduced new exclusions guidance on 9 December 2014 for implementation on 5 January 2015.
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.Slide4
Key documents
Section 51A Education Act 2002 & Education (Pupil Exclusion & Reviews) (England) Regulations 2012.
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.Slide5
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.Slide6
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.Slide7
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.Slide8
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Withdrawn guidance set out a role for the LA – based on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.Slide9
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).Slide10
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.Slide11
Judicial Review Principles
Paragraph 148-151 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.Slide12
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?Slide13
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.Slide14
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.Slide15
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.Slide16
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.Slide17
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.Slide18
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 exerciseSlide19
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