EXCLUSION APPEALS

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EXCLUSION APPEALS Roger Butterfield Butterfield
Consultancy Ltd
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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

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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
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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

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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

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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 (17th May 2002))
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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

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Disability Discrimination

• Factors that can be taken into account in
  considering whether or not reasonable adjustments
  have been considered include
• The need to maintain academic, musical, sporting
  and other standards
• Money available
• Cost

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Disability Discrimination

• The availability of provisions through the
  Special Educational Needs Law
• The practicalities of making a particular
  adjustment
• The health and safety of the disabled pupil and
  others
• The interest of other pupils

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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

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Disability discrimination Eg. (cont)

• Is it less favourable treatment
• - For reason related to childs disability?
• - than someone gets if that reason does not
  apply to them?
• - that can be justified?

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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

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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

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Permanent Exclusion

• The decision to exclude a pupil should be taken
  only
• a) in response to serious breaches of the
  schools 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

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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

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Permanent Exclusion

• There will, however, be exceptional circumstances
  where, in the head teachers judgement, it is
  appropriate to permanently exclude for a first or
  one-off offence. These might include
• serious actual or threatened violence against
  another pupil or a member of staff
• sexual abuse or assault

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Permanent Exclusion

• supplying an illegal drug
• carrying an offensive weapon
• 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

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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

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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

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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
  schools policy
• c) allow and encourage the pupil to give his or
  her version of events

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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 teachers decision
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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

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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

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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)

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The Police Are Investigating

• Incident of arson
• Police investigated
• Head teacher did not interview the pupil before
  excluding him for a fixed period

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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 (27th June 2003))
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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

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When Should Exclusion Not Be Used

• Minor incidents such as failure to do homework or
  to bring dinner money
• Poor academic performance
• Lateness or truancy
• Pregnancy

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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) Punish
ing pupils for the behaviour of their parents,
for example where parents refuse or are unable to
attend a meeting
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Activities Outside School

• Behaviour outside school on school business e.g.
  school trips, sports fixtures or work experience
  placements are subject to the schools 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

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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

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Appeal to Independent Appeal Panel

• No appeal may be made after the 15th 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

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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

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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

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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

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Appeal to Independent Appeal Panel

• The following are entitled to attend and be
  legally represented
• The parent or, if aged over 18 the pupil
• The head teacher
• The governing body
• The local authority

The Council on Tribunals should be notified of
all hearings
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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 (13th March 2002))
• The LEA must maintain a completely objective
  stance. (S and others v London Borough of Brent
  and others 17th May 2002)

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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

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Decisions the Appeal Panel Can Make

• Uphold the exclusion
• Direct that the pupil is to be reinstated either
  immediately or at a date specified by the panel
  or
• 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

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What Must the Panel Decide

• Whether the head teacher and the governors
  complied with the law and had regard to the
  Guidance
• The schools published behaviour policy
• The fairness of the exclusion in relation to the
  treatment of any other pupils involved in the
  same incident

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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 governors findings. Satisfied
  on all these points, it would be unusual for the
  panel to vary the governing bodys 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

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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

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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

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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
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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

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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 parents consent

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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
pupils anonymity (but then should still be
dated) - General principle remains that accused
person entitled to know substance of
accusation
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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
• Was the person who made the statement a well
  known liar or a person with a biased motive
• 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

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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 panels 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
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Independent Panel Procedure (cont)
- If IAP upholds permanent exclusion Clerk
should - immediately inform LA (including home
LA) If pupil of compulsory school age,
pupils 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 childs continuing
education Head should remove pupils name
from school roll day after conclusion of
appeal
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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 pupils record even if
reinstatement directed - GB must comply with
parental request to append appeal statement
to pupils record - GB decides what details of
exclusion to include in pupils school record
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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

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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

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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

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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 (27th June 2003))

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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
• Relevant and sufficient reasons for the decision
• Has the panel considered all the options
  available
• Has there been a fair hearing
• Is there a right of challenge to the decision