Education Bill

MEMORANDUM SUBMITTED BY THE EDUCATION LAW PRACTITIONERS’ GROUP (E 117)

Response to the call for evidence by the House of Commons Public Bill Committee in respect of The Education Bill 2011

School Exclusions

Introduction

1. The Education Law Practitioners’ Group was established in 2000. It comprises lawyers, advisors and organisations which represent and advocate for parents and young people in education disputes.

2. In this response, we are focusing on the proposals of school discipline and in particular, the likely impact of the proposals in respect of exclusions on young people and their parents. We are concerned that the proposals will prohibit our client group from obtaining a meaningful and effective remedy against decisions of head teachers and governing bodies to exclude permanently.

Our expertise

3. The Association comprises practitioners who have represented parents and young people for over 20 years on exclusions matters. Many of us participated in previous consultations in respect of changes to the Secretary of States guidance on school exclusions. Angela Jackman and Eleanor Wright, Secretary and Treasurer of the Association, are cited in UK Chambers and Partners: "Guide to the Legal Profession 2011" as Claimant category 1 leaders in education law. They are also ranked in Legal 500. Should it assist the Public Bill Committee, they are willing to provide joint oral evidence on the issues set out in this submission.

4. Between us, Association members have represented and assisted hundreds of young people and their parents through the stressful experience of permanent exclusion. We have litigated in the area and obtained landmark decisions in the High Court which serve to demonstrate the complex issues involved in school exclusion and the fundamental need for the process to provide a fair and effective remedy for parents and young people. Our case law stretches to as early as 1994 with the reported matter of R v Board of Governors of Stoke Newington School ex party M (1994) ELR131 which confirmed the fundamental principal that rules of natural justice apply to proceedings before school governing bodies when they conduct exclusion hearings.

5. Our more recent cases include (R) A v Independent School Panel for London Borough of Sutton and others [2009] EWHC1233 in which the High Court accepted, inter alia, that an governing body erred in law by determining a permanent exclusion matter on different grounds to those which were the basis of the head teacher’s original decision.

Impact of exclusions on parents and young people

6. It is our experience that exclusions have a devastating and potential life-long impact upon our clients when a child is unfairly excluded from school and denied the opportunity to return to that school.

7. We appreciate the pressures on teaching staff caused by limited resources and, in some circumstances challenging conditions. Equally, as advocates, we feel it is essential to strive for a level playing field so there are fair and transparent procedures in place to enable teaching staff to operate effectively whilst at the same time ensuring that where disciplinary issues arise, determination of disputes between young people and schools are conducted fairly and with no presumption that the school is always right.

8. As practitioners in the field, it has generally been our experience that young people are at a disadvantage in school exclusion disputes by the mere fact that they are children and the evidence of professionals tends automatically to carry more weight. We seek in no way to undermine the authority and integrity of teaching staff however we feel it is necessary to speak openly about our experiences and those of our client group.

9. As lawyers, we have an overriding duty to act in our clients’ best interest but also to advise responsibly and objectively. In situations where we are of the view that a challenge lacks merit, we are under a duty to advise our clients accordingly. Equally, where we feel the decision of a head teacher or their teaching staff’s actions are unsound, in a democratic society it is only fair that the young person’s view should be advocated as strongly as possible and that they should be in a position to put their case and defend their position in exactly the same way as an adult who is defending their position in quasi-legal circumstances.

10. By way of analogy, we have frequently made submissions in which we compared the position of a child undergoing a permanent exclusion to that of an adult defending themselves in regulatory proceedings.

Currently, a pupil who is the subject of 2 permanent exclusions is at increased risk of not returning to a mainstream environment. This is because section 87 of the School Standards and Framework Act 1998 removes a parent’s right of appeal in respect of school admissions for a period of 2 years when their child has been permanently excluded twice.

11. Many pupils face enormous difficulty returning to a mainstream environment following a permanent exclusion. This is particularly the case if they have commenced their GCSE course of study as it can be difficult to ensure continuity of their studies if they are transferring, for example, a significant way into their GCSE coursework or if they are in year 11. This will generally have a prejudicial impact upon the young person and limit their opportunities in terms of socialisation with peer groups and the breadth of their schooling experience.

12. The record of a school exclusion remains on a pupil’s school file and will impact upon references which they require for future school placements or post-16 provision. The courts have recognised that it is legitimate for pupils to pursue challenges to exclusions for reputation purposes; this is because of the adverse and long-term impact upon future education or employment if they are not permitted to challenge unfair decisions.

Teaching staff

13. We reiterate that we acknowledge the pressures that teachers sometimes face. As advocates for young people and parents, however, we also have direct experience of the fact that teaching staff sometimes make wrong decisions for various reasons, including genuine human error and lack of adequate training. We recognise that we take a different view to that of the government which has, for a number of years, made its view clear that the authority and power of head teachers and teaching staff is paramount and should override, in our view, pupils’ legal protection.

14. We are concerned that the underlying presumption is that it is undesirable to undermine the head teacher’s authority by ordering reinstatement.  Clearly that is not in itself a good enough reason potentially to ruin a child's education and reputation. We believe there is an assumption of infallibility which is incorrect and it is notable that this assumption does not apply in relation to, for example, employment cases. We believe it would be highly undesirable for a culture to develop under which head teachers know that they have the ultimate power to remove children and there are no effective safeguards for pupils who inherently face a power imbalance in this process.

15. Arguably it may undermine a head teacher’s authority even more if s/he is seen to be getting away with unreasonable decisions. Eleanor Wright currently chairs both admissions and exclusion independent appeal panels for her home local authority. It is her experience that head teachers who know their jobs and who want to act professionally accept the decision if an exclusion is overturned. Mrs Wright recollects one occasion when a panel which she chaired overturned an exclusion but was concerned about the effect on the school. During the course of their deliberations, the head teacher panel member noted that the clerk sitting on the Town Hall reception desk where the hearing was taking place was in fact an ex-pupil of hers who had been excluded and reinstated.   She had not relished the decision at the time, but had simply got on with making the best of things; the pupil in question subsequently went on to achieve very well at the school.

16. By way of anecdotal evidence, we attach at Appendix 1 an article from the Mail Online dated 25 February 2011 concerning a head teacher, Craig Tunstall, who clearly acted unreasonably and beyond his remit. Under the proposed new regime, a head teacher who acts in this matter will be left unchecked if the governing body simply rubber-stamps his or her decisions and if the local authority is not prepared to intervene due to the extremity of the situation.

17. In a democratic society where education is a fundamental and basis right, we believe measures must be in place to provide as level a playing field as possible in education disputes between pupils and teachers. The future prospects of a young person is determined by their educational achievements and school exclusion prevents young people from achieving their full potential, particularly permanent exclusion.

18. We therefore view with dismay the proposed legislation which will prevent review panels from making any binding decisions upon governing bodies or reinstating pupils.

The current law

19. Currently, the Independent Appeal Panel (IAP) which determines appeals from governing bodies in respect of permanent exclusions, has a range of decisions which it can make, by virtue of statutory provisions.

We refer to section 6 (6) of Statutory Instrument 2002/3178 – The Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulation 2002 and section 7 (6) of Statutory Instrument 2002/3179 – The Education (Pupil Exclusions and Appeals) (Pupil Referral Unit) (England) Regulation 2002. These provide that

an appeal panel may:

i. uphold a decision to exclude or

ii. direct immediately reinstatement or reinstatement at some future date or

iii. Decide that because of exceptional circumstances or other reasons it is not practical to give a direction requiring reinstatement, but that it would otherwise have been appropriate to give such a direction.

20. We submit the IAP provides genuinely independent scrutiny of decisions made by head teachers and governing bodies. It is independent as it is appointed by the local authority. Furthermore, the Secretary of State’s guidance on school exclusions: "Improving behaviour and attendance: guidance on exclusion from schools and pupil referral units" September 2008, places an emphasis upon the requirement for IAP members to undertake training so they are appropriately equipped to determine appeals. We submit that the current range of decisions available to IAPs is crucial to ensure that they are properly equipped to provide an effective remedy for parents and young people after independently considering the evidence and the case stated by both parties.

21. The proposed section 51A, set out at clause 4 of the Education Bill 2011 is, in our submission, of grave concern. The provision replaces the IAP with a Review Panel which has wholly limited powers to simply:

i. Uphold the decision of a responsible body ( presumably the governing body or its equivalent) or

ii. recommend that the responsible body reconsiders the matter or

iii. where it considers the responsible body’s decision to be flawed "in the light of principles applicable on an application for judicial review" the review panel can quash the decision of the responsible body and direct it to reconsider the matter.

Recommendations of the review panel

22. We are concerned that the review panel, in circumstances which it does not view as giving rise to judicial review claim, is limited merely to recommending that the responsible body reconsiders the matter. This places no obligation whatsoever upon the governing body to follow the recommendation of a review panel or to overturn its earlier decision. One assumes that if the review panel is requesting the responsible body to reconsider the matter, the review panel is of the view that the decision of the responsible body was wrong, yet it has no powers of compulsion. This has the result that parents will not have an effective remedy.

23. In our experience, in circumstances such as these, it is more likely than not that a responsible body will not willingly overturn its decision. Our experience, as practitioners, is that most decision-making bodies are reluctant to overturn a decision if only because this would result in an admission that they did not carry out their original deliberations adequately.

24. It is our experience that training needs are sometimes an issue for decision makers in schools. We have no reason to believe that this will not continue into the future yet young people will be denied an effective remedy where adverse decisions have been made against them as a result of poor training and poor practices.

25. We do not seek to argue that this is the norm within the school exclusion process however the reality is that schools sometimes make mistakes and unfair decisions. The only fair process open to the parent and young person is if there can be unrestricted independent review of the school’s decision-making process with effective remedies available to the appellate bodies.

Circumstances giving rise to judicial review cases

26. The third available decision suggests that where the review panel feels the governing body decision is flawed on potential judicial review grounds, the review panel can quash the decision and direct the governing body to reconsider. We have a number of concerns with this clause and the intention behind it.

27. Judicial review raises a range of complex issues. An expectation that a lay panel should consider appeals with the knowledge and experience of lawyers is, in our view, flawed.

28. It appears that the intention is to provide for circumstances where a pupil has a potential judicial review claim against the governing body. We interpret this section as seeking to pre-empt a claim by placing the onus on the review panel to identify the issues and address them by quashing the governing body decision and directing it to reconsider. Again, this is a remedy which is of little effect as there is no power for the review panel to make any substantive directions.

29. In our many years of experience, we have come across many situations where head teachers and the governing bodies have failed to reach decisions compliant with due process and adequate weighing of evidence. We have numerous cases where adverse decisions have been upheld by governing bodies despite, for example, reliance upon head teachers on unconvincing hearsay evidence, conflicting statements between witnesses, a failure for the young person who is the subject of the exclusion to give their version of events, unfair processes including unfair interviewing practices. We have had situations where head teachers and governing bodies have plainly acted unlawfully such as acting in breach of the law and Secretary of State guidance by, for example, the governing body imposing a harsher decision than that originally imposed by the head teacher. Under the proposals, the review panel cannot direct reinstatement or any particular decision; a restriction to a mere reconsideration by the governing body is not, in our view, an effective remedy in light of the nature of flaws which arise.

30. Additionally, situations arise where a current IAP will quash a decision of the governing body in circumstances which cannot be described as equivalent to those which give rise to a potential judicial review claim. Please refer to the attached case studies.

Reinstatement

31. Not all parents and young people seek reinstatement to the school in question. Furthermore, IAPs currently do not always direct reinstatement. There is power, set out in the aforementioned statutory instruments which enable IAPs to decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring reinstatement. Further guidance on this provision is set out in the Secretary of State’s guidance referred to above.

32. There is already power for IAPs to determine that whilst the decision to exclude permanently was unfair and non- compliant with the Secretary of State’s guidance, due to the particular circumstances existing between the pupil and the school, it would not be reasonable to direct reinstatement. We submit that the current process whereby it is within the remit of IAP to hear submissions from the school and parent as to whether it is appropriate to direct reinstatement or not direct reinstatement, is the fairest process for determining whether or not this vital remedy is at least an option available to the pupil.

33. Litigation in this area has specified that before an IAP can make a decision, it has to give the parties an opportunity to make representations during the course of a hearing. Indeed, the Secretary of State guidance was specifically amended in 2008 to incorporate at paragraph 166 the reference for the Court of Appeal judgments in X v Bromley 2007. That case specified that when dealing with permanent exclusions, IAPs have to made 2 decisions; firstly, whether to uphold the decision and secondly whether to direct reinstatements. It is necessary for the IAP to hear evidence on both separate and distinct issues.

34. The Court of Appeal have provided authority on the process required to ensure fair and due consideration of these vital issues. We take the view this is indicative of the fundamental importance of the remedy and the current power which lies with the IAP to either direct or not direct reinstatement following a fair process.

35. Where parents and pupils seek reinstatement, this is usually because they feel the relationship with the school is not beyond repair. There can be other crucial considerations such as a pupil having undertaken the bulk of their GCSE coursework or it may be the case that the pupil is in year 11 hence moving to another school or an alternative provision will be detrimental to that pupil and severely restrict their likely achievements in public examinations.

36. There may be a range of other reasons why the parent and young person seek reinstatement, including siblings at the school and a genuine wish to continue benefiting from the school’s resources. Removal of the right to seek reinstatement is a gross infringement and attack on the pupil’s remedy.

Vulnerable pupils

37. The sweeping proposals of the Education Bill 2011 take no account of the disadvantage suffered by pupils with special educational needs who are 7 times more likely to be excluded from school. It also has no regard to the longstanding problem that disproportionate numbers are African Caribbean boys continue to be excluded from school. Furthermore, it also take no account of the fact that disproportionately high numbers of vulnerable looked after children are excluded.

38. These vulnerable groups are less likely to achieve academic success and future opportunities due to their circumstances. This will be exacerbated by removal of the power to reinstate.

Disability discrimination/ Race discrimination

39. Currently, where a parent raises allegations that disability discrimination or race discrimination occurred during the exclusion process, the IAP has to determine whether the discrimination took place. Under the proposals, if a review panel determines that discrimination took place, it will have no power to compel the governing to reinstate despite the fact that the pupil has been determined as receiving unfavourable treatment on grounds of their disability or race. We submit this flies in the face of equalities legislation and the equalities impact assessment fails to address this fundamental shortcoming.

Conclusion

 

40. We cannot emphasise enough the extremely prejudicial impact of the above proposals . We are of the view it is essential that the review panel should provide a full and effective remedy for parents. The power to make binding decisions upon the governing body is an integral requirement for an effective appeal panel. The power to direct reinstatement where it is considered appropriate after consideration of submissions from all the parties is equally essential where there is otherwise likely detriment to the pupil for the range of reasons set out above.

41. We accordingly urge the public scrutiny committee to consider the above submissions favourably and accept that these proposals will inevitably result in circumstances where unfair and unreasonable decisions of governing bodies will remain in force. A child’s educational provision and the doors which it potentially opens should not be treated as a lesser right than other areas of law which are safeguarded with effective remedies.

42. We attach case studies to highlight some of our above points.

CASE STUDIES

1. A was a 4 year old boy in a faith school. His school suggested that he had psychological problems but the psychologist could not understand the basis for this suggestion. A fixed term exclusion was imposed on him and, on reviewing this, the Governing Body unlawfully increased it to a permanent exclusion – only head teachers have power to impose permanent exclusions. Despite the unlawful nature of their action being forcibly pointed out to them by ourselves and the local authority, they refused to rescind their decision. The Independent Appeal Panel overturned it without difficulty, and also found that the fixed term exclusion had been wholly unjustified.

Under the Education Bill provisions, all that the IAP could have done would be to find that the original decision was wholly unlawful and direct the governors to reconsider. However, given that this panel was well aware that it was acting unlawfully but categorically refused to change its mind, clearly under the new provisions they would have refused to reconsider. The child would have been left with no option but to apply for the Judicial Review which could only have succeeded, costing the school in the region of £30,000 and seriously harming future relationships between the school and the family.

2. B was an academically able boy in a secondary school with high public examination results. He suffered gross neglect, whilst younger, in the care of his mother, as a result of which he had mild behavioural problems primarily involving disruptiveness in some classes. The school did not place him on the special needs register or take other advice as to how to help him, and made it clear that they were worried that B might adversely affect their exam statistics. They dealt with him mainly by taking him out of class to be supervised by the school Special Educational Needs Co-ordinator who took him with her when teaching other classes, so that he was isolated from his peers and humiliated. The school pressurised his father to remove him from the school, and also tried to pressurise his local authority into placing him in a residential special school despite the fact that he did not even have a Statement of SEN. Ultimately he was permanently excluded, his father being told that he had thrown a full 2 litre bottle of liquid at the front of an underground train, causing a major security alert and disruption throughout the underground network. The school said a member of staff had viewed CCTV footage demonstrating this.

The school was very reluctant to allow B’s father to see the CCTV footage, but when he managed to do so it showed that B had kicked a pebble onto the line. B’s father made representations to the governors that the incident did not merit permanent exclusion and referring to the school’s lack of support for B. The governors upheld the exclusion, again citing the non-existent disruption to London Transport.

We were instructed and made further investigations with London Transport, who said that they had no record of the alleged incident and that obviously they would have if they had viewed B’s conduct as being in any way dangerous or if he had caused difficulties of the type alleged. B’s father appealed to the IAP who had no hesitation in overturning the exclusion, being highly critical both of the head teacher and the governors. In fact, in view of the school’s attitude to B, he moved to another academically selective school where subsequently he did very well.

Under the current proposals all that the IAP could have done would be to make a finding that the governors’ decision was irrational given the lack of evidence. However, that lack of evidence must have been apparent to the governors from the outset and it is difficult to believe that they would have reversed their decision if directed to reconsider. Again, B’s only potential remedy would have been by way of Judicial Review.

3. C and D were permanently excluded for allegedly taking part in smoking cannabis on a playing field near their school. The school also cited academic performance issues which under DfE guidance is not a valid reason for exclusion and which had not been raised previously. The boys said they had been smoking ordinary cigarettes. The only evidence the school produced was CCTV footage showing a group of boys rolling up cigarettes and smoking them, and in fact the footage did not show C smoking at all. The head teacher’s justification for her decision was simply that she thought it was likely that what they were smoking was cannabis. She did not find any cannabis and took swabs of the boys’ hands which, on testing, were all negative for cannabis or any other drug. The exclusions were upheld by the governors.

The school arranged the IAP hearings, assigning only 30 minutes per child despite strong representations from ourselves and the local authority that such hearings usually take longer. They were very reluctant to release the CCTV footage and simply said it would be available on the day of the hearing, which was in breach of fundamental principles of natural justice. In the event the IAP agreed there was insufficient time to deal with the hearings and directed adjournments and the release of the CCTV footage. The IAP ultimately overturned the exclusions with no hesitation.

Under the Education Bill the most the IAP could have done would have been to make a finding that the exclusions were irrational or unlawful and directed reconsideration. However, these were governors who were prepared to close their eyes to the fact that there was no evidence at all of the matters alleged and that the exclusion was in part based on impermissible grounds. It is therefore difficult to believe that the governors would have changed their minds simply on the basis of a recommendation from the review panel.

4. E was a boy accused of leading a mob to attack another group of pupils. The evidence consisted of a statement from a member of the public about the events in question but it did not identify E as a ringleader. He admitted that he was in the crowd but said that he was protecting his sister who had got caught up in it. The head teacher was about to retire and did not undertake any investigation: she left it to her successor to make a decision. By the time the successor was able to investigate, the evidence was three months old and there had been every opportunity for it to be tainted by discussions amongst the pupils, including some who were known to be antagonistic to E. E was permanently excluded, the head teacher producing anonymised witness statements in direct breach of DfE guidance, and despite the fact that she did not suggest that the witnesses were at any risk from E. However, the only two statements which came close to implicating E were directly contradictory of each other and the witnesses claimed to have seen events that they could not possibly have seen. Once the names of the witnesses were reluctantly revealed, it emerged that the children responsible for these statements had a known history of bullying E.

The IAP overturned the exclusion. Again, it is difficult to believe that governors who were prepared to uphold an exclusion in the face of no adequate investigation, at the clear risk of tainting of evidence, and the lack of credible evidence would have reversed this on direction from the review panel.

5. F was a boy in year 11, due to take GCSEs in the summer. Early in the spring term, he and few other boys who were regarded as potentially disruptive were sent on what the school described as study leave. However, they were forbidden from coming back into the school except for their exams, and were offered no support from staff to assist with revision. The majority of year 11 continued lessons and preparation for their exams in school, going through an extensive revision programme. They went on study leave in May and even then had free access to the school’s library and computer network, and to the staff for any queries.

During this period F went into school to collect some belongings and he was excluded for this and for what was described as "suspected gang membership" although no evidence of such membership was ever produced, nor did the school give any reason for its suspicions. The governors upheld the decision.

The school instructed a barrister for the IAP hearing. He did not seek to rely on the gang membership issue at all due to the total lack of evidence. The IAP overturned the exclusion and were very critical of the school, finding that the purported "study leave" was a wholly unlawful exclusion.

The governors here were prepared to uphold what was a blatantly unlawful exclusion followed by permanent exclusion for which there was no evidence or justification. It is highly unlikely that in those circumstances they would have been persuaded to change their minds if direct to reconsider by a review panel.

6. G and H were twins who were academically able but with a history of some disruptiveness. During the approach to GCSEs the head teacher imposed separate 30 day fixed term exclusions on both for separate but trivial offences for which other pupils involved in the same incidents received detentions. The school made no effort to provided education to the twins during this period. On expiry of the 30 days the head was only prepared to readmit them to school on the basis that they worked on their own in a small room with work being set for them but little actual subject teaching. They were filmed whilst working, and were permanently excluded when they found and blocked off the camera.

The governors upheld both the fixed term exclusion and the subsequent permanent exclusions. The IAP overturned the latter, finding that the 30 day exclusions were wholly disproportionate and unlawful. They directed immediate reinstatement. The school, supported by the governors, did not comply with the direction and only did so after a court order was made with a threat of contempt to court proceedings.

In this case the governors had so little respect either for the law or the IAP findings that they were prepared to break the law. Clearly the Education Bill provisions would not have provided any effective remedy against them.

7. We were instructed in a succession of cases involving a school which was regularly failing in providing support to children to SEN and was permanently excluding a wholly disproportionate number of them. The local authority was so concerned about the position that they were regularly referring parents to us. In each case the exclusion decision was reviewed by the same panel of governors who in effect rubber-stamped the decision even when grounds for the exclusions were wholly inadequate and there was serious evidence of lack of support by the school.

Under the Education Bill, it is entirely clear that this panel of governors would not have changed their practice on direction from the IAP because they would have been aware of the extremely limited nature of the remedy available to the child and, if anything, would have been encouraged thereby.

Whilst these were cases of people who were legally represented and who therefore had recourse to Judicial Review, it has to be borne in mind that the vast majority of families in this situation are not and will not be aware of this remedy. Further, the fact that such cases have to be taken to Judicial Review repeatedly would be very expensive for schools and would be extremely damaging to the relationship between the schools and the pupils in question.

April 2011