an update

‐ current position

‐ key documents

‐ what has stayed the same?

‐ what can we change?

‐ questions…

• DfE introduced new exclusions guidance on 9

December 2014 for implementation on 5

January 2015

• DfE withdrew guidance on 2 February to

address “some issues with process”

• threat of legal challenge by childrens’

charity – failure to consult and have regard

to PSED and guidance took away safeguards

and made it easier to exclude.

• section 51A Education Act 2002 &

Education (Pupil Exclusion & Reviews)

(England) Regulations 2012

• exclusion from Maintained Schools,

Academies and PRUs in England (DfE

June 2012)

• caselaw on exclusions – R(CR) v IRP for

LB Lambeth (2014)

• must have regard to DfE guidance i.e.

follow unless you have a good reason

to depart

Framework provides for 3 stage process:

• principal’s decision to exclude

• governing body review of decision

• independent review panel decision

but may be 4th if IRP directs/recommends

reconsideration by GB. Will be based on flaws

in original GB decision.

exclusion is a sanction of last resort and

decision must be lawful, rational,

reasonable, fair and proportionate

HT decision to permanently exclude still

based on two limbed test – serious

breach/persistent breaches of behaviour

policy and where allowing the pupil to

remain in school would seriously harm the

education/welfare of pupil or others in

school.

tests for GB review and IRP review remain

based on key criteria – lawful, reasonable

and procedurally fair

must invite

• parent (and a representative)

• headteacher

• LA representative (as an observer at

academies)

must allow parents and headteacher to

make representations. LA can only make

representations with GB consent

• withdrawn guidance set out a role for the LA

- based on caselaw from 2002 (S v LBC Brent)

• if allowed to make representations - be fair

and impartial

• must not press for school or parent’s case

• not there to prevent lawful, reasonable &

fair use of exclusion

• provide advice on wider issues and what

other schools do etc…

• when considering whether to quash

the GB decision, IRP should only take

account of evidence that was

considered by GB at that hearing or

evidence that would have been

available if GB acted reasonably

• IRP may consider new evidence to

quash decision only when satisfied that

new evidence shows that the GB made

a material error – misunderstood or

ignored a relevant fact – which gave

rise to unfairness (based on CR)

• stage 1 – IRP to consider whether it should

quash GB’s decision and direct

reconsideration by GB

• a decision to quash can only be made where

the GB decision was flawed “in light of the

principles applicable to judicial review”

• where the panel directs reconsideration, GB

must do so within 10 school days

• if GB do not reconsider within 10 school days

or decide not to reinstate, IRP should order

fine of £4,000 to be paid direct to LA

• paragraphs 148-151 guidance

• 3 main tests

‐ illegality

‐ irrationality

‐ procedural impropriety

• R(CR) v IRP for LBC Lambeth (2014) –

“…is a statement of the requirements

of judicial review which is often given

in textbooks, but it is not necessarily

up to date.”

• January 2015 guidance based on

caselaw

• did the principal or GB act outside the

scope of their legal powers in taking

the decision to exclude?

• was the statutory procedure followed?

• was exclusion used for a different

“non-disciplinary reason”

• unlawful delegation or fettering of

discretion?

• was the decision of the GB not to reinstate

so outrageous in its defiance of logic or

moral standards that it was not one a

sensible person could have made

• was decision proportionate?

• did GB act in bad faith or take account of

irrelevant factors and/or ignore relevant

factors (CR 2014 and guidance)

• unreasonable is perverse/irrational - not

unfair!

• does not mean decision has to be absolutely

correct or that IRP would agree with

decision, but must be based on logical

presumptions

• was the process of exclusion and GB

consideration so unfair or flawed that

justice was clearly not done?

• relates to practice or procedures

which raise expectations that it would

be unreasonable to dishonor

• not breach of minor points – something

that goes to the heart of the process

• examples: opportunity to be heard,

bias, adequate reasons given for

decision and equal disclosure of

evidence

• stage 2 – IRP to consider whether to

recommend that the GB reconsider the

decision not to reinstate

• applies where evidence/procedural

flaws have been identified which do

not meet the criteria for quashing the

GB’s decision (grounds for JR not made

out) but which the panel believe

justify reconsideration of the GB’s

decision

• IRP can take new evidence into

account when making a decision to

recommend

• question likelihood of GB reaching a

different conclusion on

reconsideration if their original

decision has not been deemed

unlawful by the IRP

• withdrawn guidance add valuable

information to the approach to be

taken – consider it as good practice.

• must reconsider within 10 school days

following notification of direction or

recommendation

• “CR” - “a bold step for the governing

body to fail to follow a

recommendation”

• after decision, notify parents,

Principal and LA

• key issue – reconsideration must be

conscientiously undertaken

• decision must be lawful, reasonable

and fair

• must look afresh at decision in light of

IRP findings

• whether pupil wants to return to

school is irrelevant

• which governors should take part –

same panel, fresh panel, mixture?

• no need for further representations

from parents

• may not need to meet parents again

• suggest

‐ quashed – re-run full hearing

‐ recommendation – governor panel

undertake a paper exercise

Richard Freeth | 0121 237 3961

richard.freeth@brownejacobson.com