Education Bill

Memorandum submitted by Administrative Justice and Tribunals Council (E 88)

Introduction

 

1. This memorandum is submitted by the Administrative Justice and Tribunals Council (AJTC) to the Public Bill Committee considering the Education Bill. It sets out the AJTC’s concerns about the Bill’s provisions relating to school exclusion appeal panels.

Executive Summary

2. The key points that the AJTC wishes to make include:

· The Bill’s provisions, to replace the existing exclusion appeal panels with independent review panels represent an unacceptable erosion of appeal rights.

· The proposed powers of the new review panels fail to provide an effective remedy, which could lead to injustice.

· There is no case for believing that the existence of the current appeal mechanisms has a materially inhibiting effect on the ability of schools to deal effectively with serious trouble makers.

· In the light of the clear evidence of a direct link between exclusion and SEN, with 70% of exclusions affecting children with SEN, all appeals against permanent exclusion should be heard by the First-tier Tribunal (SEND).

· These provisions are a further erosion of the rights of parents of vulnerable children, on top of other recent government proposals to remove legally-aided advice and support to parents wishing to bring an exclusion appeal.

The role of the AJTC

3. The AJTC is an advisory Non-Departmental Public Body (NDPB), established by the Tribunals, Courts and Enforcement Act 2007 (TCE) as the successor body to the Council on Tribunals (CoT). The current AJTC Chairman is Richard Thomas CBE.

4. The TCE Act gave the AJTC a wider remit than that of the CoT, namely to:

· keep the administrative justice system under review;

· keep under review and report on the constitution and working of tribunals designated as being under its oversight, which include exclusion appeal panels in England established under section 52 of the Education Act 2002;

· keep under review and report on the constitution and working of statutory inquiries.

5. The TCE Act defines "the administrative justice system" as

"…the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including:

(a) the procedures for making such decisions,

(b) the law under which such decisions are made, and

(c) the systems for resolving disputes and airing grievances in relation to such decisions." [TCE Act 2007, Schedule 7, para 14].

6. One of the ways in which the AJTC oversees decision making and appeals processes is through attending tribunal hearings to observe the proceedings in order to ensure that they are open, fair and impartial from the perspective of tribunal users. This enables members to take a view of the effectiveness of tribunal systems, measured against the Framework of Standards for Tribunals, a copy of which is attached.

Exclusion Appeal Panels

7. Of all the tribunal systems under the AJTC and former CoT’s oversight the operation of admission and exclusion appeals panels under the sponsorship of the Department for Education have continued to give cause for concern, largely because of the widely held perception that they are not sufficiently independent. In 2003 the CoT published a Special Report [1] on the operation of school admission and exclusion panels, the recommendations of which included:

· Exclusion appeal panels should always have a legally qualified Chair

· Exclusion appeals should be heard by the Special Educational Needs and Disability Tribunal (SENDIST).

8. Neither of these recommendations was taken up by the Department, although since then there have been some positive developments through the introduction of mandatory training for panel members and the requirement for panels to be chaired by the lay member of the panel, i.e. the member without a background in education. Whilst these welcome developments have led to improvements in the operation of the panels compared to the position in 2003, fundamental concerns still remain with regard to their independence, both actual and perceived.

9. In his 2001 Review of Tribunals [2] , Sir Andrew Leggatt also highlighted serious concerns about the lack of independence of admission and exclusion panels because of their close links with LEAs and the Department (i.e. the panels must act in accordance with guidance issued by the Secretary of State); the lack of proper arrangements for appointing panel members; the lack of training for panel members; and the fact that panels are clerked by LEA staff. Again, there is no evidence to suggest that the Department had any regard to the recommendations made in Sir Andrew’s report.

The Bill’s provisions

10. Turning to the Bill’s provisions, whilst the AJTC fully supports the government’s aim of strengthening discipline in schools in order to restore the authority of teachers in the classroom it has considerable concerns about the provisions relating to exclusion appeal panels.

11. So far as the exclusion appeals process is concerned, the Education White Paper said:

"We will legislate to reform independent appeals panels so that there is still an independent review of decision-making, but the review will not be able to compel reinstatement. If the review panel judges there were flaws in the exclusion process they can request that governors reconsider their decision and schools may be required to contribute towards the cost of additional support for the excluded pupil. But schools will not be forced to re-admit children who have been excluded."

12. This statement presupposes that appeal panels have been routinely overturning exclusion decisions, and presumably ordering the reinstatement of pupils, because of flaws in the exclusion process", (contrary to the Secretary of State’s guidance, which states that panels must not reinstate a pupil solely on the basis of technical defects in procedure). The AJTC believes that this misrepresents the true position, which is that the majority of appeals are overturned by panels because, on the basis of the evidence before them, the panel either did not accept that the pupil had done what he or she was alleged to have done, or considered that the decision to exclude was not proportionate. If there is any evidence to suggest that this is not the case, then the AJTC is not aware of it.

13. In recent years there have been one or two high profile cases reported in the media of panels reinstating violent pupils who had allegedly attacked teachers with a weapon. However, these are clearly exceptional cases, which do not provide a satisfactory basis for a wholesale revision of existing appeals arrangements in the manner proposed. It is also worth noting that out of 640 appeals against permanent exclusion in 2008-09 only 160 (25%) were successful, and of those only 62 (i.e. less than 10% of all appeals) included a direction to reinstate.

14. The Bill’s provisions, replacing the existing Independent Appeal Panels with Independent Review Panels, represent an erosion of existing appeal rights, which is entirely inappropriate given the serious consequences for pupils of being excluded from school. In addition, the proposed powers of the review panel in Clause 4 fail to provide an effective remedy, if the panels cannot direct reinstatement in the small minority of cases (see figures above) where they believe that the allegation is not proven or that the decision to exclude was disproportionate.

15. Whilst the panel may recommend that the governing body reconsiders the matter, this does not provide a sufficient degree of finality, particularly in the event that the reconsideration results in no change to the original decision to exclude. Moreover, the proposition that a review panel constituted entirely of lay members (i.e. without a legally-qualified Chair) should apply the principles of judicial review in its decision making is both unrealistic and inappropriate.

16. There are also serious reservations about the ability of governing bodies to re-consider impartially decisions which they have previously reviewed, particularly bearing in mind that many governors will have received very little by way of training in these matters.

17. The low proportion of appeals that are upheld, or lead to reinstatement, means that there is no case for believing that the existence of the current appeal mechanisms has a materially inhibiting effect on the ability of schools to deal effectively with serious trouble makers. The statistics show clearly, as one would expect, that panels are generally and rightly reluctant to overturn headteachers’ decisions, while at the same time providing an essential safety valve against error and unfairness. If there are any urban myths to the contrary, then they need to be dispelled.

18. Separately, these proposed new arrangements, including the absence of an effective remedy, raise concerns as to whether they are fully compliant with the European Convention on Human Rights, and in particular Articles 6 (right to a fair trial) and 13 (right to an effective remedy).

19. It is not entirely clear from either the White Paper or the provisions in the Bill what the position is regarding exclusion appeals which raise disability discrimination issues, although it is thought that the intention is that these cases will go to the First-tier Tribunal (SEND). It is unfortunate that the proposals on school exclusions have been taken forward ahead of the government’s proposals on Special Educational Needs and Disability, which have only recently been published. In 2010 the Lamb Inquiry Report "Special Educational Needs and Parental Confidence" highlighted the fact that children with SEN are eight times more likely than their peers to be permanently excluded from school, with around 70% of permanent exclusions affecting children with SEN. In the light of such clear evidence of the direct link between exclusion and SEN, and the apparent acceptance that disability discrimination cases should go to SEND, the AJTC has urged Ministers to re-consider the most obvious solution, that all appeals against permanent exclusion should be heard by the First-tier Tribunal (SEND).

20. To proceed with the Bill’s provisions as they stand simply runs the risk of well-advised parents framing their exclusion appeals in terms of disability discrimination, thereby enabling them to access the First-tier Tribunal (SEND) rather than the independent review panel; whereas the disadvantaged and less well-advised will suffer disproportionately.

21. In addition, these proposals come on top of the Government’s recent consultation on reform of legal aid in England, which included proposals to remove legally-aided advice and support for parents wishing to bring an exclusion appeal. Given the serious consequences to a child of being excluded from school, which are as important as any issues coming before any of the other tribunals under the AJTC’s oversight, we responded expressing the most serious concerns. An extract from the response is annexed for information.

22. It is regrettable, given our statutory role in overseeing the wider administrative justice system and our specific oversight of exclusion appeal panels, that officials in the Department for Education did not seek our views on these proposals at an early stage. It is clearly preferable that we should have the opportunity to offer our expert advice at an early stage rather than having to highlight in this way the Department’s failure to consult properly.


Annex A

Extract from the AJTC’s Response to the Ministry of Justice’s Consultation on Proposals for Reform of Legal Aid in England and Wales (CP 12/10)

Exclusion

1. Before addressing the arguments on Education, the AJTC wishes to register a strong objection to the language used in this section of the consultation document. The vast majority of students excluded from school have special educational needs. The Lamb Inquiry found that:

"About 70% of permanent exclusions are of children with SEN. There is massive variation in SEN exclusion rates. In different local authorities SEN exclusions vary between 43% to 92% of all permanent exclusions in that authority."

In this context, it is alarming that a government consultation document should refer to "personal choices, such as the conduct of children at school" and the Council hopes that the government will desist from this use of language and false characterisation of the situation. It is also hard to see how the consultation document can conclude that "it does not consider that the class of individuals (sic) bringing these cases is in general likely to be particularly vulnerable".

2. The consultation document acknowledges that education issues "may affect a child’s educational attainment and future life choices". It appears not to regard this with the same level of importance as safety, liberty or homelessness. In contrast, in the Foreword to the Education White Paper The importance of teaching the Secretary of State for Education states that:

"Throughout history, most individuals have been the victims of forces beyond their control…. But education provides a route to liberation from these imposed constraints. Education allows individuals to choose a fulfilling job, to shape the society around them, to enrich their inner life. It allows us all to become authors of our own life stories."

3. Low attainment, persistent truancy, exclusion and Special Educational Needs are some of the most prevalent risk factors associated with offending behaviour. Excluded young people commit twice as many crimes as their peers in mainstream education. In a 2002 survey for the Youth Justice Board, 55% of excluded pupils admitted carrying a weapon in the past year, 49% admitted shoplifting and 25% admitted stealing a mobile phone. Research has shown that three quarters of young offenders and almost half of the adult prison population have been excluded from school at some stage. The average excluded child costs an additional £64,000 to society or £650m per annum.

4. On average, one in four permanent exclusions is overturned on appeal. Given the large percentage of cases that involve special educational needs, these appeals will often deal with complex matters relating to the nature of these needs, the potential impact of bullying and the possibility of disability discrimination by the school. It is unrealistic to expect parents already under significant stress to be able to present a legally sophisticated case without legal help, advice and representation.

5. Given the current bleak outlook for children who are permanently excluded, the cost to the children and their families in terms of life chances and the potential cost to the state of increased future offending, incarceration and reliance on benefits, it is an entirely false economy to try and save on relatively minor legal aid costs in the face of potentially far-reaching consequential social and economic costs.

6. The link between school exclusion and future offending and entry into the criminal justice system is obvious. These proposals run entirely counter to the Secretary of State’s principled approach to restorative justice and the prevention of recidivism. For these reasons, the AJTC strongly opposes the removal of legal aid for exclusion appeals.

March 2011


[1] School Admission and Exclusion Appeal Panels Special Report May 2003 Cm 5788

[2] Tribunals for Users, One System One Service – Report of the Review of Tribunals by Sir Andrew Leggatt March 2001