FREE CHAPTER from ‘A Practical Guide to the Law in Relation to School Exclusions’ by Charlotte Hadfield & Alice de Coverley

INTRODUCTION

It is incidental to the authority of a headmaster to expel from the school over which he presides any scholar or student whose conduct is such that he cannot any longer be permitted to remain without danger to the school. This is not a power to be exercised arbitrarily—it may be questioned; and although, no doubt, a large discretion must be allowed, it must not be exercised wantonly or capriciously.”

Fitzgerald v Northcote (1865) 4 F&F 856

In 1865, David Fitzgerald, a 17-year-old schoolboy, and his father, a reputable Irish Judge, brought a claim for damages against Rev. S. Northcote, and the Rev. W. Stone, the headmasters of a school, for assault and false imprisonment, on the occasion of David’s permanent exclusion.

David was a pupil at a school which had a cohort of both lay students and clerical students. It was alleged that David, a lay student, had set up a secret society against the clerical students – the “Anti-Bunker Confederacy” – and had “entered into, and engaged in, mischievous and invidious inquiries as to the birth and parentage of [the clerical students], such as might lead to bad and injurious consequences, and might endanger the peace and harmony of the school”. Consequently, David was permanently excluded for his “mischievous disposition”, after being locked in his room. His pocketbook, allegedly containing all his notes on these clerical pupils, was forced from him.

In a letter explaining the exclusion decision to David’s father, Rev. Northcote wrote:

Anything more ungentlemanly in itself, or more mischievous in its public consequences I have rarely, I may say never, met with since my connexion with the College. Even if it had been his first offence, I should have felt it my duty to mark my sense of such conduct by some very serious penalty; but, after all his antecedents of this half-year, I had no alternative but to dismiss him immediately. I need not say how much it has cost me to have recourse to so extreme a measure with a boy of his promise, and after so many years’ residence among us.”

In those days, claims for damages were heard by juries. The jury was asked to consider the following questions:

1. Was the plaintiff a pupil under the care and governance of the defendants, and subject to the rules and discipline of the school? If not, of course he could not be expelled for breach of that discipline. 2. Was a secret society formed or originated among the students injurious to a certain class of them? 3. Was the plaintiff a member and promoter of that society? 4. Had the defendants’ reasonable grounds to believe, that such a society existed, and that the plaintiff was a member of it? 5. Was it necessary, with a view to maintain the good order and discipline of the school, that the defendants should be acquainted with the constitution of the society, and that, with that view, they should demand and take the book? 6. If so, did they use more violence than necessary? 7. Were the circumstances such as to justify the defendants in the reasonable exercise of their authority in expelling the plaintiff? 8. If so, was it necessary, for the purpose of preserving the discipline of the school, to prevent him from communicating with the other students? 9. If so, was it necessary for that purpose to lock him in his room? 10. If it was not so necessary, had the defendants’ reasonable grounds for believing that the course pursued was necessary to preserve the’ maintenance of discipline?”

The jury found in favour of David and awarded him damages of £5 (approximately £632 in today’s money).

It is evident from this Victorian case, even prior to the introduction of any statutory framework for exclusions through subsequent Education Acts, that the principle of reasonableness has been central to exclusion decisions for some time. Exclusion was well within the headmasters’ discretion, but evidently “not a power to be exercised arbitrarily” and only when there was “reasonable cause”1. Exclusion was, and remains, something capable of being scrutinised.

Nowadays, exclusion of pupils from a maintained school, academy, or pupil referral unit, for a fixed period or permanently, is permitted under the Education Act 2002. Under s 52, several sets of regulations have been issued, governing how and when such decisions are to be made.2 These regulations must be observed by head teachers, governing bodies, local authorities and Independent Review Panels as appropriate. These parties must also have regard to statutory government guidance issued under s 52.3

In England, a decision to exclude a pupil permanently from a maintained school, academy or pupil referral unit should only be taken where there has been a serious breach, or persistent breaches, of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. Pupils cannot lawfully be excluded if they have not breached the school’s behaviour policy. The decision to exclude a pupil must be lawful, reasonable, procedurally fair and proportionate.

In Wales, a decision to exclude a learner should be taken only in response to serious breaches of the school’s behaviour policy and where allowing the learner to remain in school would seriously harm the education or welfare of the learner or others in the school. This means that first or one-off offences should only exceptionally lead to permanent exclusion in Wales.

Independent schools, unlike maintained schools and academies, do not have to follow the statutory school exclusion guidance. Decisions relating to exclusions are largely subject to contract law principles. The preliminary mechanism for formal challenge is generally the school’s complaints procedure; any subsequent court remedy would most likely be via a claim in contract or under the Equality Act 2010.

Any decision of a maintained school, including exclusion, must be made in line with the principles of administrative law, i.e. that it is: lawful (that is, in accordance with the law relating specifically to exclusion, and also with a school’s wider legal duties under, for example, the Human Rights Act and the Equality Act); rational; reasonable; procedurally fair; and proportionate.

In other jurisdictions, decisions to permanently exclude pupils from schools similarly require additional oversight and approval by school boards (such as in various US and Canadian states). In New Zealand, the exclusion decision must be taken by the school’s board – it cannot be carried out directly by the principal. In mainland China, exclusions of pupils of compulsory education schools are completely prohibited.4 

Focus on school exclusions has intensified in recent years, following an increased emphasis on behaviour and attitudes in schools and rising levels of permanent and fixed-period exclusions5. Exclusion from school can be a life-changing event for a pupil with profoundly negative consequences for their future. Pupils who have been excluded are unlikely to reach the same levels of academic achievement as their peers, making it more difficult for them to progress to further study and work.6 Exclusion negatively impacts upon children’s mental health, reinforcing their sense of rejection and negative self-image.7 It can also increase their vulnerability to criminal exploitation.8

In May 2019, Edward Timpson published his landmark school exclusions review, commissioned by the Secretary of State for Education.9 The Timpson review explored the use of exclusion by head teachers in practice, children’s personal experiences of exclusion, and why some children are more likely to be excluded than others. These include those who have been identified by their local authority as children in need10, those with special educational needs (“SEN”), and children who have been supported by social care, who are eligible for free school meals, or are from particular ethnic groups. The findings from this report highlighted the ways in which exclusion can disproportionately affect those from particular social groups:

The analysis produced for this review shows that 78% of permanent exclusions issued were to pupils who either had SEN, were classified as in need or were eligible for free school meals. 11% of permanent exclusions were to pupils who had all three characteristics.”

Timpson made various recommendations for improvements to the school exclusion system, including that:

DfE should update statutory guidance on exclusion to provide more clarity on the use of exclusion. DfE should also ensure all relevant, overlapping guidance (including behaviour management, exclusion, mental health and behaviour, guidance on the role of the designated teacher for looked after and previously looked after children and the SEND Code of Practice) is clear, accessible and consistent in its messages to help schools manage additional needs, create positive behaviour cultures, make reasonable adjustments under the Equality Act 2010 and use exclusion only as a last resort, when nothing else will do. Guidance should also include information on robust and well-evidenced strategies that will support schools embedding this in practice.”

As at 31st August 2020, the DfE has yet to launch a consultation or update its statutory school exclusion guidance as a consequence of the Timpson review.

Much additional work has been done, and more is currently being done, to analyse the factors that give rise to disproportionate rates of exclusion for children with different protected characteristics. In November 2019, JUSTICE launched its working party report, ‘Challenging School Exclusions’ which called for significant overhaul of the current system.11 This included suggestions for better training for schools on excluding pupils, an entirely new Independent Reviewer of individual exclusion decisions, and the possibility of appealing to a judge-led tribunal.

There has also been greater recognition of the effect of increasingly challenging working conditions upon teachers, some of whom can face unacceptable levels of violence from their students.12

There has also been greater awareness and scrutiny of ‘off-rolling’ practices by schools. This followed high-profile legal proceedings in 2017 involving St Olave’s, a grammar school in Orpington, London. This school had a policy that restricted access to the upper sixth form (Year 13) to those who achieved top grades. The result was that a number of students were pushed out at the end of Year 12, and left struggling to find places elsewhere to finish their two-year A Level course. Following allegations that this practice amounted to unlawful exclusion13, the school reversed the policy.

Ofsted inspectors now look for evidence of off-rolling as part of their inspection. Ofsted’s working definition of off-rolling is currently:

the practice of removing a pupil from the school roll without using a permanent exclusion, when the removal is primarily in the best interests of the school, rather than the best interests of the pupil. This includes pressuring a parent to remove their child from the school roll.” 14

Exclusions and Covid-19

Of particular concern to us is the educational disruption that has been caused by the Covid-19 pandemic, both generally and specifically in relation to school exclusions. This has produced potential new and heightened risks for pupils, according to research from the University of Oxford (released on 22 June 2020).15 Ian Thompson, Associate Professor of Education at Oxford said:

The social and emotional disruption caused by the pandemic and the subsequent school closures is highly likely to have increased or exacerbated student anxiety and other mental health issues. There is also a concern with school connectedness for vulnerable students, whose patterns of school attendance have been disrupted. These concerns raise issues around transitions back to school settings”

Professor Harry Daniels added, ‘All children will have experienced some adverse effects from the Covid-19 pandemic, but for some these will be traumatic and long lasting and this may impact negatively on whether and how they return to school, and the likelihood of formal, informal and self-exclusion.’

Between 1 June 2020 and 24 September 2020, new arrangements have been put in place for the school exclusion process, due to Covid-19. The relevant regulations are the School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) Regulations 2020.

The DfE’s statutory guidance remains in place, save for changes to the timescales for meeting of governing boards, for applications for review, and to arrange meetings of Independent Review Panels. Remote access hearings are also being made available. This is because governing boards and independent review panels are not currently permitted to conduct paper-based hearings. Exclusion decisions made during this period must still be lawful, fair, proportionate, and non-discriminatory. Readers consulting this book whilst Covid-19 continues to affect schools and education are advised to check the Government’s website for the most up-to-date guidance.16

What this book is about

In this book we have tried to offer a practical legal guide to the current school exclusion regime in England as it stands at 31st August 2020. We aim to make this book as helpful as possible to parents, young people, school staff, and specialist representatives. We hope that it may be a useful resource for those who appear on behalf of children and young people, or schools, or governing bodies, before Independent Review Panels and the First-tier Tribunal.

In Chapter 1, we look at school discipline, exclusion being the most serious disciplinary sanction that a school can impose. This chapter summarises the rules and regulations relating to behaviour policies (which all schools must have in place); the power to sanction pupils for bad behaviour and the range of sanctions (short of permanent exclusion) generally available to schools, including detentions, seclusion/isolation and fixed-period exclusions; the powers to screen, search and confiscate in schools; misconduct outside of school; the power to use reasonable force; social media, internet and “cyberbullying”; and the power to direct pupils off-site to improve behaviour.

Chapters 2 and 3 focus on permanent exclusion in maintained schools and academies. In Chapter 2 we focus upon the first instance decision to exclude taken by the head teacher, including the importance of early intervention; investigation of the circumstances giving rise to the decision whether or not to permanently exclude; when permanent exclusion is lawful; alternatives to permanent exclusion, such as managed moves; and administrative concerns such as the rules around recording a permanent exclusion and the local authority’s duties following exclusion. We also provide a (non-exhaustive) list of factors that may potentially be relevant to a decision to exclude.

In Chapter 3, staying with permanent exclusion in maintained schools and academies, we examine the statutory scheme for review of decisions to exclude. We start by flagging the current temporary extended timescales that are in place due to COVID-19. Then we look at the governing board’s duty to review a permanent exclusion, and the remit of the Independent Review Panel. Where the pupil facing exclusion has or may have a disability, this chapter should be read in conjunction with Chapter 6.

Chapter 4 examines the role of judicial review in school exclusions. The majority of challenges to exclusion decisions are resolved via the Independent Review Panel process. However, judicial review remains a valuable if somewhat limited means of challenging unlawful decisions by the Independent Review Panel, and reconsiderations by governing boards where the Independent Review Panel has so ordered, in respect of which there is no statutory right of review. Judicial review’s main relevance is to exclusions in maintained schools and academies; it has little if any application in the independent sector (as to which see Chapter 5). In this chapter we provide a broad summary of principles and procedure in relation to judicial review claims, and review some of the public law decisions that have been made in the area of school exclusion.

Chapter 5 provides a guide to permanent exclusion decisions in independent schools. Independent schools, unlike maintained schools and academies, do not have to follow the statutory school exclusion guidance. Parents can invoke the complaints procedure as a means of triggering a review of an exclusion by the school’s governing board, but their decisions are not subject to review by the Independent Review Panel. Public law principles have very little application in what is essentially a private law relationship between parents and independent schools, regulated largely by the terms of the contract between them, and so the legality of any exclusion from an independent school is likely to turn upon principles of commercial contract law. However, independent schools are subject to the Equality Act 2010, just as maintained schools and academies are, and so Chapter 6 (discrimination) will be of relevance to parents and pupils of independent schools who believe that they or their child has been the subject of a discriminatory exclusion.

Chapter 6 of this book provides an overview of the Equality Act 2010, which applies to all schools including independent schools. In this chapter we summarise some key concepts in the Equality Act, including protected characteristics, prohibited conduct, some common defences, and liability of responsible bodies of schools. We offer an overview of bringing claims for discrimination in the First-tier Tribunal and the County Court; the burden and standard of proof in Equality Act claims; the remedies available in each jurisdiction; and the Public Sector Equality Duty.

In the Appendix, we have listed some information about support and advocacy groups for excluded children and their parents.

We would like to thank Rose and Jos, and our education team and clerks at 3PB.

Charlotte Hadfield
Alice de Coverley
September 2020

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1Such discretion not being absolute. See Hutt v Governors of Haileybury College (1888) 4 TLR 623

2The current provisions are, in England, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007, as amended by the Education (Provision of Full-Time Education for Excluded Pupils) (England) (Amendment) Regulations 2014 (amending the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007). In Wales the current provisions are the Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003, and the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003, as amended by the Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004. See also the Education (Reintegration Interview) (Wales) Regulations 2010.

3See Education Act 2002, section 52(4)(b). The relevant statutory guidance in England is the DfE publication Exclusion from maintained schools, academies and pupil referral units in England, the DfE’s statutory guidance on school exclusions, most recently updated in 2017. For Wales, see Exclusion from schools and pupil referral units, updated in April 2015.

4Under Article 27 of the Compulsory Education Act 2006: For a student who violates the school management rules, the school shall criticize and educate him/her, but shall not expel him/her from school.”

5Following many years of decline in use, rates of both fixed period and permanent exclusion have risen since 2013/14. However, exclusion rates are not exceptionally high by historic standards – the rate and number of permanent exclusion is lower than in 2006/07, when comparable records began, and have not reached the levels reported in the late 1990s and early-mid 2000s.

6Gill, Quilter-Pinner and Swift, ‘Making the Difference: Breaking the Link between School Exclusion and Social Exclusion’ Institute for Public Policy Research (2017) p. 21, available at https://www.ippr.org/files/2017-10/making-the-difference-report-october-2017.pdf

7Ford at al., ‘The Relationship between Exclusion from School and Mental Health: A Secondary Analysis of the British Child and Adolescent Mental Health Surveys 2004 and 2007’ Psychological Medicine (25 August 2017) available at https://ore.exeter.ac.uk/repository/handle/10871/28337

8School Exclusions “Fuelling Gang Violence”‘ BBC News (30 October 2018) available at https://www.bbc.com/news/uk-46027265; House of Commons Home Affairs Committee, ‘Serious Youth Violence: Sixteenth Report of Session 2017-19’ (2019) paras 163-171, available at https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1016/1016.pdf; Timpson p. 8.

10Children Act 1989, section 17

11Joanna Williams, “It Just Grinds You Down”, 17th December 2018, Policy Exchange (available at https://justice.org.uk/wp-content/uploads/2019/11/Challenging-Report.pdf)

12Ibid.