Challenges to School Exclusion

Exclusion, Appeals and the Law

and Ann Blair, Karen Eden, Neville Harris

• Publisher: Routledge
• Year: 2002
• Topic: Law
• eBook ISBN:
  9781134580545
• Subtopic: Education General
• Index: Law

Permanent exclusion is the most severe sanction a school can impose on a child and the number of permanently excluded children is rising. Based on systematic observation of exclusion appeal panel hearings.Challenges to School Exclusion offers a unique insight into the appeal process. It focuses on:

*mechanisms by which parents and children can challenge permanent exclusion
*the law and current practice
*the social context of exclusion
*reforms of the appeal system made by the School Standards and Framework Act
*the DfEEs latest guidance on pupil inclusion.

Challenges to School Exclusion is the first study to examine permanent exclusion. The findings reveal serious deficiencies in the appeal system, including a frequent failure to deal fairly with excluded children. The text will be of particular interest to head teachers, local education authorities, school governors, education lawyers and education charities.

1 Introduction

Background

In the light of the other, wide-ranging, reforms to the education system of England and Wales over the past two decades it is easy to underestimate the importance of the development of statutory appeal rights in respect of various forms of decision. Yet without effective mechanisms for redress of grievance, notions of parental ‘empowerment’, partnership or participation, which have become a feature of education policy in recent years, would have little meaning. It would be much more difficult, or in some cases impossible, to enforce the individual rights which governments have conferred on users of the education system as a means of reducing the dominance of education providers and contributing to their greater accountability. The only redress mechanism provided by the Education Act 1944, on which the modern education system was founded, namely the right of complaint to the Secretary of State, would have proved inadequate to meet parents’ expectations of effective remedies to infringements of individual rights—rights whose increasing assertion formed part of the emergent consumer culture in the education system under the post-1979 years of Conservative government (see Harris 1993).

One of the new redress mechanisms to be introduced post-1979, which are discussed more fully in Chapter 2, is the statutory appeal system in respect of permanent exclusion from school, which is the subject of this book. It commenced in September 1987, exactly five years after the introduction of the school admissions appeal system on which it was modelled. It was and remains confined to cases of permanent exclusion ‘in recognition of the fact that permanent exclusion is a very different order of action from temporary exclusion’ (DES 1987: para. 5.12.13). The rationale for the new appeal right for parents (and pupils aged 18 or over) was stated in basic terms by the minister, when proposing the amendment to the Education Bill in 1986 introducing the new clause on exclusion appeals:

[A] parent may genuinely feel that an authority has taken insufficient notice of the pupil’s point of view or the difficulties arising through its endorsementof a decision to expel. The parent may continue to feel that expulsion is unjustified, or the expelled pupil may be at a critical stage of preparation for school-leaving examinations. An alternative school may pose problems of accessibility, or the parent may be unhappy about the curriculum offered by that school. We therefore propose that…[w]hen an authority confirms an expulsion the parent would have a…right of appeal.¹

Appeals against a refusal to reinstate an excluded primary, secondary or special school pupil may be brought by the parents or, if aged 18 or over, the pupil him/ herself. Now that the relevant provisions of the SSFA 1998 are in force, the power of LEAs to direct the reinstatement of an excluded child and the governors’ right of appeal against this decision, which were also introduced under the 1986 legislation, have terminated (subject to transitional arrangements in respect of cases where exclusion occurred before 1 September 1999).²

Initially, very few parents made use of the right of appeal. The monitoring system for permanent exclusions (the National Exclusion Reporting System) set up in 1990 on the recommendation of the Elton Committee on school discipline (Elton 1989) revealed that there had been only 92 appeals by parents in England in 1990–91. The following years saw a dramatic increase, which has now levelled out, in both the number of appeals—with over 1,000 appeals in each of the past four years—and the proportion of parents who appeal: see Table 1.1.

The appeal figures in Table 1.1 demonstrate that utilization of the right of appeal has become well established even if only a minority of parents appeal.
The reasons for under-utilization of appeal right are explored in Chapter 8. The figures also show the increasing use made by schools of the power of permanent exclusion: 1997/98 was the first year since systematic national monitoring began in which the numbers of permanent exclusions fell. (Note, however, the doubts about the accuracy of the official statistics expressed by Hyams-Parish (1996:6).)

Table 1.1 Numbers of permanent exclusions from schools and numbers of appeals against permanent exclusion in England, 1990–91 to 1997–98

Within the education system few other decisions taken at school level are subject to statutory appeal arrangements. It is therefore surprising that there is so little published information about the operation of the exclusion appeal system. This book offers the first detailed account and evaluation of the work of the exclusion appeal panels. As noted in the preface, it is based on a study of their operation in seven LEA areas, conducted between 1997–1999. It covers all aspects of the appeal process and explores the reasons why parents who could appeal do not do so. It sets the discussion within the broader context of the legal and policy framework to the exercise of discipline within schools, focusing in particular on the respective roles of head teachers and governing bodies. The aims of the research project and the methodologies employed are outlined in the final section of this chapter.

Exclusion Appeals: A Controversial Subject?

Despite their increased independence following the SSFA 1998, and the continuing supervisory role of the Council on Tribunals over their operation,³ the exclusion appeal panels are clearly perceived by many educators and local administrators to lie within the education system, rather than the judicial system. This perception stems from the fact that the appeal system is administered by LEAs, who also appoint members of panels, and is subject to the jurisdiction of the local government ombudsman (see Chapter 2). Nevertheless, as we shall see in the next chapter, it takes its place alongside the other redress mechanisms that bring access to potential legal remedies to ordinary citizens—in this case parents and (although only indirectly) children—when they question the actions of, and are in dispute with, public bodies such as local education authorities and schools. In this sense, despite its obvious connection with disciplinary aspects of education, the appeal system has a distinctly judicial function (with an associated welfare function, as one sees in family courts) and should not be seen as having a disciplinary role. However, it is one of the contentions of this book that, in relation to their specific role, many appeal panel members in practice fail to appreciate this distinction.

Although the appeal system gives rise to a complex series of issues, explored in this book, the system itself is a relatively straightforward one. As will be explained in more detail in later chapters, parents of children at all state-maintained schools have a statutory right of appeal to a locally constituted appeal panel⁴in any case where their child has been permanently excluded from school—whether as a result of a fixed-term exclusion being made permanent by the head teacher or as a result of permanent exclusion from the outset. This right arises only after the governing body or its discipline committee has met to consider the exclusion, which meeting must normally occur within 15 school days of the decision to exclude permanently. Various parties, including the parent, have a right to attend this meeting and make representations. If the governing body or its discipline committee refuses to reinstate the excluded child, it must inform the parent of their right of appeal and the parent then has 15 school days within which to give notice (in writing) of appeal to the LEA. The appeal panel must convene and hear the appeal within 15 days of the date the appeal was lodged.⁵ The relevant parties (they do not include the pupil unless aged 18 or over) have a right to attend the hearing and make representations. The procedure at the hearing is a matter for the panel but it must have regard to the Secretary of State’s guidance and to general principles of fair procedure, especially the rules of natural justice.

This kind of procedure is relatively easy to understand and accept. Indeed, as This kind of procedure is relatively easy to understand and accept. Indeed, as shall be shown, most of those who contribute to the work of the appeal system or whose decisions are at times considered by it agree with the principle that the availability of a right of appeal in cases of school exclusion is fair and appropriate. Only the major teaching unions, most notably the NASUWT, NUT and NAHT, have challenged it. Their opposition stems from a false perception that the appeal system poses a serious threat to the authority and professional autonomy of the education professionals whose interests these unions represent. In October 1996 the NASUWT responded to a government announcement of steps to improve school discipline (which followed a previous announcement in March 1996 of an £18 million programme of pilot projects to identify and promote best practice in managing pupil behaviour). The union noted the improvements that were to be made to exclusion appeal panels, but argued that these were a poor substitute for abolishing them completely, which the union preferred. The panels

achieve nothing except to turn education into a quasi-judicial procedure in which the parents of violent/disruptive youngsters can exercise their right to insist that their children return to the school of their first choice regardless of their behaviour…. When they exercise independence and force reinstatement they fatally undermine the authority of the school and Governing Body.

(NASUWT 1996)

At its annual conference in Bournemouth in 1997 the union passed a resolution instructing its National Executive to continue to ‘campaign for the abolition of so-called “independent” appeal panels’ (NASUWT 1997:4). Yet not only does the evidence suggest that the appeal system is supported by most head teachers and governors (see below), but it is also clear that panels only infrequently overturn the governing body’s decision. In 1997–98 only one in five of the 1,000 appeals brought in England succeeded.⁶ This means that schools were ordered to reinstate only 200 of the 12,300 pupils who were permanently excluded in that year.

Such controversy as has attended the operation of the appeal committees has been fuelled by a number of causes célèbres in the 1990s. In each of the cases there was an angry reaction from teachers and/or parents to the decision of the appeal panel to reinstate an excluded child. In the first of these cases, in 1993, a boy excluded from a school in Birmingham for fighting and injuring a teacher was reinstated following an appeal. Teachers refused to teach the boy and some parents protested over their decision. The school had to be closed for a two-day ‘cooling-off period’ (McCarthy 1993). In 1996 a 10-year-boy who had been excluded from Manton junior school in Worksop was reinstated on appeal. Following this decision the NAHT called on the Secretary of State to abolish the parental right of appeal where the school’s head teacher, the governors and the LEA agreed that a child was unduly disruptive. The General Secretary of the NUT wrote in the TES that the union would sanction industrial action by teachers where appeal panels or governing bodies reinstated pupils against the professional judgement of teaching staff (McAvoy 1996). Local opposition to the reinstatement intensified as a result of the decision to arrange for a personal tutor to teach the child in isolation from other pupils at the school, at an annual cost of £14,000 per annum (Carvel 1996a).

There were similar concerns the same year, following an appeal panel’s decision that a 14-year-old boy who had been excluded from a school in the north-east the previous year should be reinstated with a view to reintegration into mainstream schooling, a decision subsequently upheld by the Secretary of State in December 1996.⁷ The teachers threatened to take industrial action if the boy should cease to be educated separately and be returned to mainstream classes, but the court refused an order requiring the child’s reintegration.⁸ There were other local controversies over appeal panel decisions elsewhere: for example, in Oldbury, near Birmingham, 16 NASUWT members agreed to take strike action when a boy who had been excluded for temporarily blinding a science teacher with a laser pen was reinstated by the appeal panel (Charter 1998).

Confrontation between parents/pupils and schools, and attendant publicity, were in fact predicted at the time the Education Bill was before Parliament in 1986. In response to the proposed government amendment introducing the appeal right an opposition spokesperson commented: ‘There are likely to be reports in the newspapers and the pupil will be seen as taking on the school or local education authority. We need to design a more effective way of avoiding a high profile confrontation and aim for co-operation’.⁹

Over the past couple of years the high incidence of school exclusion and the growing awareness of its social effects have formed the basis for a number of government initiatives feeding into a broader policy programme aimed at improving levels of social inclusion. These are discussed in Chapter 4. As political and professional attention has focused more closely on the need to reduce the incidence of school exclusion per se, the controversy surrounding the exclusion appeal panels has largely disappeared. We found very little opposition to the current right of appeal in our survey of head teachers: despite the NAHT’s disparaging views a few years ago (above), 93 per cent of the 106 head teachers in our survey supported the right of appeal and 62 per cent said it did not undermine their authority (only 23 per cent said that it did). Governing bodies were similarly in favour of the current appeal right: 88 per cent supported it and 61 per cent said it did not undermine their authority as governors, although 29 per cent said that it did.

Yet there are several respects in which the appeal system, while intrinsically so important (see below), ought to attract controversy, for reasons which are explored in this book. In particular, the authors’ independent research over a two-year period has revealed serious flaws in the way the appeal system operates. We contend that the reforms to the exclusion appeal system under the 1998 Act, which form part of a more general reform of the law governing school exclusion, do not address many of the key difficulties with the present system. Moreover, we argue that the government’s recently published revised guidance on exclusion appeals, which is incorporated into the general guidance on ‘pupil inclusion’ (DFEE 1999a and 1999b), will not overcome the deficiencies in procedural fairness which we have observed in the course of our research. As one possible option for reform, we support the call by the Council on Tribunals for exclusion appeals to be transferred to the jurisdiction of the Special Educational Needs Tribunal (e.g. Council on Tribunals 1993: paras 2.15 and 2.17), a recommendation based on the Council’s perception of the panels derived from their visits to hearings as part of their supervisory and monitoring role (noted above). We discuss this and other reform options in later chapters.

Why the Exclusion Appeal System is Important

Exclusion and its Consequences

The appeal system is important because permanent exclusion from a school is a serious matter. In particular, exclusion has potentially adverse consequences for many of the children subjected to it, given the likely disruption to their education and the possibility that, unless and until a suitable school place can be found, an excluded child could remain outside the schools system for some time. In Chapter 4 we cite some of the now considerable evidence that children excluded from school can often spend many months deprived of suitable provision despite the existence of, in the words of Lord Browne-Wilkinson in the Tandy case discussed in Chapter 3, ‘an immediate obligation [on LEAs] to make arrangements to provide suitable education’¹⁰ (under s. 19 of the Education Act 1996) for any child of compulsory school age who is not attending school due to exclusion or certain other reasons. Despite this duty, the quality of the education that is provided for excluded children varies considerably (Parsons et al. 1996:8). Both the denial of suitable education and the reduced social contact that result from school exclusion contribute to the alienation and reduced educational attainment of some young people. School exclusion is also associated with problems in relationships, securing employment and avoiding criminality in the transition to adulthood or in later life. There is also a link with entry into child prostitution (Melrose et al. 1999). The association between exclusion and these various problems forms part of the underlying basis to recent government, or government-backed, educational initiatives, such as the development of Education Action Zones to provide flexible patterns of curricular provision in areas of educational under-achievement and above-average levels of truancy or a high incidence of exclusion. The Government’s Social Exclusion Unit, in recommending a number of changes in practice aimed at reducing the rate of exclusion, reported that some children receive only three or fou...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Tables
• Preface
• List of Cases
• Abbreviations
• 1: Introduction
• 2: Education and Redress of Grievance
• 3: Discipline in Schools
• 4: Exclusion in Practice: The Social Context to School Exclusion
• 5: School Exclusion: The Legal Framework
• 6: The Governing Body’s (Discipline Committee’s) Reinstatement Meeting
• 7: The Exclusion Appeal Panels
• 8: Bringing Appeals: Access to the Arrangements
• 9: Exclusion Appeal Hearings
• 10: Conclusion
• Appendix
• Notes
• References