Exclusion Appeals by nyut545e2



       Roger Butterfield
  Butterfield Consultancy Ltd

  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

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

  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

  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


“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))

  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

  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

  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

 Disability discrimination

• Example
  - The pupil with hearing impairment is rude to classroom
  - Assistant speaks & signs to her not to be rude
  - Pupil swears at her
  - Given 6 day fixed period exclusion

  - Assume = ‘disabled pupil’
 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?

  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 (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                                              12
  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

  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

  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

  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

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

  Permanent Exclusion

• Where a head teacher has permanently excluded a pupil
  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

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

 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
  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

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

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

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

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)

The Police Are Investigating

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

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))

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

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

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

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

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

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

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

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

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

Appeal to Independent Appeal Panel

The following are entitled to attend and be legally
     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

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)

Procedure at the Hearing by an Appeal

• 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
• 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

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

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

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

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

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

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

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

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

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

  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

  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

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

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

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

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

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
    b) all parties must be given an opportunity to put their
    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
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))

Human Rights Act 1998

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

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