Education Bill

Memorandum submitted by Department for Education (E 45)

To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in clause 2.

It is for Academies to decide whether they wish to use the powers in Clause 2 to search for items banned by "school rules". If they do, regulations will set out the process Academies must follow to define and publicise items for which a pupil may be searched without consent. The processes set out mirror those defined for maintained schools and non-maintained special schools under section 89 of the Education and Inspections Act 2006.

Application of these Regulations

1.  Regulations 2, 3, and 4 apply where an Academy has, or is to have, measures relating to discipline which identify items for which a search of a pupil may be made.

Responsibilities of the governing body

2. - The Proprietor of the Academy-

(a) must make, and from time to time review, a written statement of general principles to which the principal of the Academy is to have regard in determining any measures relating to discipline which identify items for which a search of a pupil may be made, and

(b) where they consider it desirable that any particular measures should be so determined by the principal, that the measures should identify particular items, or that the principal should have regard to particular matters-

(i) shall notify the principal of those measures, items or matters, and

(ii) may give the principal such guidance as they consider appropriate.

(2) Before making or revising the statement required by paragraph (1)(a), the governing body must consult (in such manner as appears to them appropriate)-

(a) the principal of the Academy,

(b) such other persons who work at the Academy (whether or not for payment) as it appears to the governing body to be appropriate to consult,

(c) parents of registered pupils at the Academy, and

(d) registered pupils at the Academy.

(3) In exercising their functions under paragraph (1), the governing body must have regard to any guidance given from time to time by the Secretary of State.

Determination of measures relating to discipline which identify items for which a search of a pupil may be made

3. - The principal of an Academy must determine any measures relating to discipline which identify items for which a search of a pupil may be made.

(2) The principal must, in determining such measures-

(a) act in accordance with the current statement made by the governing body under regulation 2(1)(a), and

(b) have regard to any notification of guidance given under regulation 2(1)(b).

Publication of measures relating to discipline which identify items for which a search of a pupil may be made

4. The measures determined by the principal under regulation 3 must be published by the principal in the form of a written document as follows-

(a) the principal must make the measures generally known within the Academy and to parents of registered pupils at the Academy, and

(b) the principal must in particular, at least once in every school year, take steps to bring them to the attention of all such pupils and parents and all persons who work at the Academy (whether or not for payment).

EDUCATION BILL: CLAUSE 4

To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in clause 4.

Introduction

1. This clause will establish review panels to consider the cases of pupils permanently excluded from schools in England. These review panels will replace the current independent appeal panels.

2. The aim of this reform of the exclusion system in England is to stop schools from being forced by panels to re-admit excluded pupils, in order to strengthen the authority of school leaders and help them to prevent indiscipline. Although the number of exclusions overturned by independent appeal panels is very small, the negative effect that the reinstatement of an excluded pupil can have on schools is very significant. It can demoralise staff, undermine the authority of the head teacher and make pupils feel less safe in their classrooms.

3. We want to help school leaders to maintain classroom discipline. Excluding disruptive pupils as a last resort can improve the attainment of both students remaining in the class (who suffer fewer distractions) and those who are excluded (who are placed in more appropriate educational settings).

4. Of course schools should continue to make robust, fair, defensible and legal exclusion decisions. Independent review panels (IRPs) will be able to direct that a school pays a financial penalty where it excludes unreasonably.

5. Regulation making powers currently exist for the exclusion process because they cover detailed procedures that are complex and not appropriate for the primary legislation. The new regulations will establish independent review panels and set out their procedures and powers. The main changes will be that schools will no longer be forced to reinstate disruptive pupils but may have to pay a financial penalty if their decisions are considered flawed. Parents will also be able to request that an SEN expert attends the panel where it is relevant to the exclusion.

Summary

Clause 4 of this Bill inserts a new section 51A into the Education Act 2002. It includes powers to make regulations in relation to:

· the procedures to be followed in relation to exclusions by head teachers or teachers in charge of a pupil referral unit (PRU), governing bodies of maintained school, the management committee of a pupil referral unit and local authorities;

· establishing review panels, their constitution and powers, and the procedure that they will follow;

· applying these provisions to Academies.

In this document ‘head teacher’ should be read to include the teacher in charge of a PRU and, similarly, governing body should be read to include the management committee of a PRU.

We intend to consult on the detail of these regulations soon after Royal Assent and for the regulations to come into force in September 2012.

Procedure to be followed on exclusion

It is the government’s intention that regulations made under both 51A (3) (a) and (b) will broadly replicate the existing processes and obligations around exclusions. Currently regulations set out that the head teacher must inform the parents (or pupil if he is 18 or over) of the details of an exclusion. The head teacher must also inform the local authority and governing body if the exclusion is permanent ; will result in the pupil missing a public examination ; or takes the total fixed term exclusions for that pupil over five days in a term .

They also set out that the governing body must consider (with a view to whether to reinstate) all permanent exclusions, the exclusions of any pupils that would result in a pupil being excluded for more than 15 days in any one term (or 5 days in one term if a parent makes representations to the governing body) or exclusions that result in the pupil missing a public examination. They also set out who needs to be informed of the governing body’s decisions.

Establishing review panels, their constitution and procedure

Independent Review Panels (IRPs)

Regulation making powers at new section 51A (3) (c), (3)(d) and (3)(e) are to be used to provide for the setting up of review panels, their constitution, and procedure.

It is intended that regulations will replicate the existing position in that they will provide for a review to be available in the same circumstances that an appeal is currently available – that is, to a parent (or pupil if he is 18 or over) in any case where a governing body has made a decision to uphold a permanent exclusion .

Regulations will provide for t he constitution of the new review panels, how they will operate and that the procedure that they will follow will be broadly the same as for existing appeal panels. The main change is that parents will be able to request that an SEN expert be present at the review panel meeting , where it is a factor in the exclusion. It is intended that t he SEN expert will only attend in an advisory capacity and will not be a full member of the panel with voting power; however he or she will be paid to attend the panel.

The powers of the review panel will be different from those of the existing appeal panel and are set out at new section 51A (4). We are not setting up a judicial body and we expect the panel to operate sensibly and robustly. All public bodies, including the panel, have to conduct their decision making in a way that is lawful in the light of the principles applicable in an application for judicial review. We are asking the panel to look at the school’s decision in this light. The principles are:

· legality – the body must act within the scope of its powers and for a proper purpose;

· procedural fairness – for example, giving the individual a right to be heard;

· reasonableness and rationality – taking into account relevant factors and not irrelevant ones, not making a decision that no reasonable person could have made;

· compatibility with European Convention on Human Rights (ECHR) and EU law.

The review panel must also comply with the new public sector equality duty. The general duty on public authorities will be to have due regard to the need to:

o eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act,

o advance equality of opportunity between people who share a protected characteristic and those who do not,

o foster good relations between people who share a protected characteristic and those who do not.

The protected characteristics which will be relevant for review panels to consider are: disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

We intend that regulations made in relation to the procedure to be followed by a review panel will provide that t he review panel shall have regard to both the interests of the excluded pupil and those of other pupils and persons working at the school . The decision of the review panel is binding.

We will provide guidance for panels, and local authorities must provide training.

Powers of the review panel

Regulation making powers at new section 51A (5), (6) and (7) will be used to make regulations in relation to the new powers of the review panel. A review panel may make a decision as set out at new 51A (4).

The power at new 51A (5) provides that regulations may provide for the panel to have supplementary powers where it recommends that a governing body reconsiders a decision to uphold an exclusion or where it directs the governing body to reconsider the matter. The Government intends that this power will be used to set out the circumstances when a panel, having heard a review, may decide to mark a pupil’s record to note the outcome of the review in cases where reinstatement is not the eventual outcome for the pupil. This will ensure that the exclusion does not count towards the rule that if a pupil has two exclusions they and their parents lose the right to choose their next school.

The power at new 51A (6) will be used to make regulations to set out the circumstances in which the panel may direct an adjustment of the schools’ budget share. It is intended to regulate to provide that those circumstances are where:

· the school’s decision has been quashed by the panel, the governing body reconsiders its decision and does not offer reinstatement or

· the governing body refuses to reconsider a decision which has been quashed by the panel

The power at new section 51A ( 7 ) will be used to make regulations to set the amount of the financial penalty .

In all cases of permanent exclusion the Average Weighted Pupil Unit (AWPU) will, as now, transfer to the receiving school. The financial penalty to be defined through these regulations will be in addition to this. We expect it to be in the region of £4k (which is the approximate value of AWPU).

We intend to make provision through these regulations as to what the receiving local authority should do with the money. Where the school is in a different local authority area, the excluding school’s local authority will transfer the money to the pupil’s home local authority.

Regulation making powers at new section 51A (8) (a), (8)(b), (8)(c),(8)(d) and at (9) are to be used to provide for the financial allowances to be paid by local authorities to IRP members; to require heads, governing bodies and local authorities to follow guidance from the Secretary of State; and to provide that local authorities give data as required to the Secretary of State. These will broadly replicate the existing processes and obligations of independent appeal panels, the only change being that the SEN expert will be treated as a member of the panel for the purposes of allowances.

There are regulation making powers specifically in relation to pupil referral units at 51A (10) and (11). These are to cater for the particular arrangements in relation to pupil referral units. They are to provide for who is to be the "responsible body" – normally the management committee - in relation to a pupil referral unit and to provide for the eventuality that no one has been prescribed.

3 Applying these provisions to Academies

The regulation making power at 51A (12) will be used to make regulations which will apply these provisions to Academies. Academies will be required to replicate the procedures for the establishment, constitution and procedures of IRPs and will have the same duties and obligations as maintained schools. It will be for Academies to decide whether they appoint third-party providers, such as voluntary organisations, to set up and run IRPs as set out in regulation or, in some instances, they may decide to contract with a local authority to provide the service. The powers of IRPs will be the same. However, in circumstances where an academy must pay a financial penalty it would be directly to the local authority of the excluded pupil. During consultation on the regulations we will explore the mechanism for this further.

March 2011