Browne Jacobson – Legal update for governance professionals
At our recent conference for governance professionals we were again delighted to be joined by Mark Blois, Partner and National Head of Education at Browne Jacobson.
Mark Blois
Partner and National Head of Education at Browne Jacobson
At our recent conference for governance professionals we were again delighted to be joined by Mark Blois, Partner and National Head of Education at Browne Jacobson. Mark’s legal update focussed on exclusions and complaints and there were many questions about both issues posted in the chat. There was not time to answer them all at the event so we have gathered them together here with Mark’s answers:
Exclusions
I have recently had to organise two independent review panels (IRP) for a permanent exclusion, and have used the LA legal team, which is very expensive etc can you use other people/sources to pull an IRP panel together? Also, as they have both gone against the school would you recommend the school getting their own legal representatives for the review panel?
Yes, there are some other organisations that include convening an IRP panel together as well as clerking but not very many and quality can vary. Some academy trusts choose to bring a panel together themselves and create a reciprocal arrangement with other local trusts. There can sometimes be value in taking legal advice in relation to an IRP, either to support the school’s representatives to prepare for the hearing or to represent the school at the hearing and provide advocacy. However, there is no one size fits all approach and cases should be considered individually in terms of the merits of legal advice or advocacy.
What happens if you just can't get the panel of governors together in the 15 days?
In accordance with paragraph 103 of the exclusions guidance, the governing board must make reasonable endeavours to arrange the meeting within the statutory time limits (i.e. 15 days) and must try to have it at a time which all the relevant parties can attend. However, the governing board decision will not be invalid simply on the grounds that it was not made within these time limits. Schools should make every attempt to adhere to the time limits and if they are unable to comply with the deadlines set, there should be good reasons for why this was the case.
The Department for Education Suspension and Permanent Exclusion guidance requires that the governing boards consider and decide on the reinstatement of a suspended or permanently excluded pupil (PEX) within 15 school days of receiving notice of a suspension or PEX from the headteacher if:
- It is a permanent exclusion
- It is a suspension which would bring the pupil’s total number of school days out of school to more than 15 in a term
- It would result in the pupil missing a public exam or national curriculum test
Please note that, if the pupil is suspended for more than 5 but less than 16 school days in a term, the governing board must consider within 50 school days of receiving the notice of suspension whether the suspended pupil should be reinstated. In the absence of any representations from the parents, the governing board is not required to meet and cannot direct the reinstatement of the pupil.
The guidance around knives has changed: can they exclude just for bringing a knife into school or do they now have to use or threaten to use a knife?
Headteachers must use their judgement based on the individual circumstances of the case when considering whether to exclude a pupil. That said, it is wise to consider any precedents the school may have already set (i.e if you have suspended / permanently excluded a pupil on a previous matter in similar circumstances).
‘Use, or threat of use, of an offensive weapon or prohibited item that has been prohibited by a school’s behaviour policy’ is noted in the exclusions guidance as a circumstance that may warrant a suspension or permanent exclusion.
However, the list provided by the exclusions guidance is non-exhaustive and is intended only to offer examples; it is not by any means definitive. Thus, in theory, you could exclude a pupil just for bringing a knife into school if this clearly contradicts the school’s behaviour policy and / or the school has grounds on which it believes it can properly exclude the pupil.
The school should bear in mind that a permanent exclusion should only be used: (i) in response to a serious breach or persistent breaches of the school’s behaviour policy; and (ii) where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school.
Our LA only ever seems to want to attend remotely now - so we are forced into hybrid meetings by them. Where do we stand on that?
Whilst the current legislation / exclusions guidance does not provide for remote meetings at present, this is not the same as thing as requiring that all meetings must be held in person.
As the aim should be to facilitate engagement by all parties, if the only way the LA is able / willing to attend is remotely, it would be better to accommodate their remote attendance rather than not allow for their attendance at all.
In the case of reviewing an individual whose number of days has gone over 15+ in a term, what would be the stance if, when you contact the parent to arrange the review meeting, the parent informs you that the child will be starting a new school. Does the governing board still have to meet to consider the suspension?
Yes, in accordance with paragraph 117 of the exclusions guidance, if a reinstatement meeting would make no practical difference because, for example, the pupil has already returned to school or the parents have made it clear that they do not want their child reinstated, the governing board must still meet to consider whether the pupil should or would have been officially allowed back into the school.
A further point to note, in the case of an Independent Review Panel, and in accordance with paragraph 223 of the exclusions guidance, is that the panel’s decision should also not be influenced by any stated intention of the parents or pupil not to return to school. The focus should be on whether there are sufficient grounds for the IRP to direct or recommend that the governing board reconsider its decision that the pupil should not be reinstated.
When a panel is reviewing a 15+ suspension of a student, are they reviewing every suspension that makes up those 15+ days or just the suspension that has taken the total over the 15 days?
The panel are just reviewing the suspension which has taken the total over the 15 days.
How much info do the governors need for over 15 days - a full up to date pack?
Yes, an up to date pack containing relevant written evidence, witness statements and other relevant information held by the school pertaining to the exclusion. In accordance with paragraph 110 of the exclusions guidance, where the Governing Board is legally required to consider the reinstatement of a suspended or PEX pupil they should (inter alia) ask for any written evidence in advance of the meeting.
Any guidance on what should be included in an evidence pack? I have followed LA guidance and have been commended on the extensive information provided, then for another told that there has been too much. I assume the remit is with the school as to what information they feel is relevant to support their decision for suspension or PEX?
The school should provide all relevant information to the Governing Board ahead of a meeting to consider a suspension and/or PEX. Examples of relevant information would include:
- Relevant school policies
- Headteacher’s report
- Suspension/Exclusion letters
- Reintegration strategies
- Meeting notes
- Behaviour Logs
- Behaviour support plans
- Details of any SEND support
- Details of referrals to external agencies and records from those agencies
Ultimately, it is a matter of judgment for the school as to what information they feel is relevant and should be provided to the governing board. However, it is our position that it would be better to over disclose information than be seen to under disclose / not allow the governing board the chance to consider all relevant information.
How would you suggest that we manage a situation where a parent has completely refused to engage either with the headteacher or with the governance professional?
When faced with a parent who is refusing to engage, I would ensure that all the relevant correspondence is sent out, and that the parent is made aware of all possible avenues of recourse (complaints process, asking for governing board / IRP review, ombudsmen etc).
I would also highlight in your communication with the parent that, by refusing to engage with the process, they are missing the opportunity to present their / their child’s side of the relevant story, which may be crucial in determining how the matter proceeds.
In accordance with paragraph 62 of the exclusions guidance, whenever a headteacher suspends or permanently excludes a pupil they must, without delay, notify parents of the period of the suspension or permanent exclusion and the reason(s) for it.
What is the legal implication of strike days, if any, on counting the 15 school days please?
Unless the school has policy documentation to the contrary, a school day should be viewed as those days the school is open to children for learning purposes (and not inset days).
I.E. for a school, a ‘school day’ will not include those days which fall within the published holiday periods.
That a strike is planned for a day within the 15 school days, whilst unfortunate timing-wise, does not mean that that day is no longer viewed as a school day for the purposes of arranging a governing board meeting.
However, as mentioned above, a governing board’s decision is not invalidated by the fact it has taken more than 15 school days after the governing board is first notified of the permanent exclusion. Moreover, the fact that there has been strike action may well be viewed as a genuine and unavoidable reason why the meeting was delayed, if the decision was brought before an Independent Review Panel.
The guidance seems a little woolly where a student is from out of area, clear that both LAs need to be notified but in terms of invitation, is that both/just one/if so which?
It is good practice for both local authorities to receive an invitation and be kept updated as to any developments in a PEX case.
In accordance with paragraph 82 of the exclusions guidance, a headteacher must notify the local authority in which the school in question is located, as well as the pupil’s ‘home authority’ when a pupil is excluded. The governing body must also notify both authorities – in accordance with para 129 of the exclusions guidance - when the governing body is to consider reinstating a suspended or permanently excluded pupil.
In my experience the LA representatives rarely attend and also often do not provide a statement despite being invited to the panel hearing/to provide a LA statement. What is the Clerk's duty here to do/document this?
In accordance with paragraph 120 of the exclusions guidance, the governing board should ensure clear minutes are taken of the meeting as a record of the evidence that was considered by the governing board.
The Clerk may, therefore, wish to read out which parties are in attendance and have provided evidence, which are not in attendance but have still provided evidence, and which have neither attended nor provided evidence. This would be good practice and would ensure the LA’s absence is properly noted.
For more information on exclusions see NGA’s guidance and Learning Link module.
Complaints
Does Browne Jacobson offer complaint training? Mark delivered a really excellent exclusions training session for my trust earlier this year and it would be good to know if there was something similar for governors who might be needed for a complaints panel
Yes they do, please see below and feel free to contact Mark Blois for further information:
Complaints management support pack (brownejacobson.com)
What if a complaint is upheld - might a panel make a Trust liable?
Upholding a complaint, including with an apology and/or admission that things could have been done better, is not an admission of liability in a legal sense. This reflects the fact that complaints panels are not a formal legal process and panels are not required to engage with legal arguments. The whole process is simply a mechanism for resolution and reconciliation.
For more information on complaints see NGA’s guidance and Learning Link module.
