Dealing with exclusion
Further information for schools and for parents is available from the Education Inclusion Service on the Devon County Council website: https://new.devon.gov.uk/educationandfamilies/school-information/education-inclusion-service
EARLY HELP CAN MAKE A DIFFERENCE
“Disruptive behaviour can be an indication of unmet needs. Where a school has concerns about a pupil’s behaviour, it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion. In this situation, schools should consider whether a multi-agency assessment that goes beyond the pupil’s educational needs is required.” Exclusion from maintained schools, academies and pupil referral units in England – Department for Education September 2017.
Following the publication of the updated Department for Education guidance for exclusion in September 2017, many governors, trustees and clerks have attended training on their role in the exclusion process. This article focuses on the difference that ‘Early Help’ can make where a pupil is experiencing difficulties which may lead to their exclusion and how governors and trustees can support the school to ensure that all pupils are given the best possible life chances.
Exclusions are rarely the result of an incident that comes completely out of the blue and exclusion is not an action which headteachers take lightly, but how can governors and trustees gain the information they need to understand whether or not everything has been done which could have been done to avoid an exclusion? Did the school involve partners to help with the behaviours that were causing concern at the earliest possible stage? Would you, as a governor or trustee know what appropriate Early Help could look like?
What is Early Help?
When a child or young person and their family needs additional support (for example with behaviours that could lead to exclusion) Early Help is the name given to the initial response offered by all services who have contact with children, young people and families when a child, young person and family needs something extra. Devon’s Early Help offer is there to support families from pre-birth to 19 years old (25 for young people with SEND). Early Help is not a designated team but is the way that everyone works together to support the needs of families. It is good practice, not a process, a service or a team. This builds an understanding to address extra needs and prevent situations from getting more difficult for children and young people.
The aim of Early Help is to build on people’s capacity and resources to manage their own dilemmas, resolve their own difficulties and prevent further problems in the future. For a school, this translates into putting in place whatever is required to address the behaviours that are causing concern and which could, if left unaddressed, result in exclusion. So what governors and trustees will wish to explore is if, with the families’ consent, a Multi-Agency Early Help Assessment and plan has been put in place and whether the school is working with partners to address the needs of the pupil and their family by calling upon whatever partner agencies have been identified as being able to help. It is likely that local authorities where Early Help support is available will expect schools to have accessed this network before permanently excluding a pupil.
What is The Early Help Assessment Tool?
The Early Help Assessment is the tool used by all practitioners in Devon to assess the needs of a family and individual family members. It enables information to be gathered about a family from a range of practitioners, so their needs can be understood, and the right support can be put in place. All practitioners involved complete the relevant sections of the assessment, in consultation with families and record this via the ‘Right for Children’ system.
What is the Right for Children System?
Right for Children is a secure online system, which enables practitioners from schools and a range of agencies, with the families’ consent, to input and share information about the families with whom they are working. It is available to a wide range of practitioners who use it every day in a number of different ways to support and secure information-sharing between agencies. It is also used by the
childrens social work team to ‘step down’ families into Early Help support, so no family who may still need help is left out.
There is a checklist available on the Devon County Council website for governors and trustees who are part of an exclusion panel to help them to ask questions relating to the background for the exclusion and the interventions and support which was given, both within the school and from outside agencies. https://new.devon.gov.uk/educationandfamilies/school-information/education-inclusion-service
Further information regarding Early Help can be found on the Devon Children and Families Partnership website (search ‘Early Help’). www.devonchildrenandfamiliespartnership.org.uk
Exclusion - what does the governor panel do?
Governors or trustees may need to form a panel to hear representations from parents relating to a pupil being excluded from school. The governing board must consider the reinstatement of an excluded pupil within 15 school days of receiving notice of the exclusion, regardless of whether parents make a representation if:
- The exclusion is permanent
- It is a fixed-period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term
- It would result in a pupil missing a public examination or national curriculum test.
If the board need to form a panel to consider an exclusion think about where the hearing will be held, ensuring that the room will be free of interruptions and the seating arrangements are ‘friendly’ – perhaps in a circle, rather than each side of a desk, for example. Have water and tissues available and if possible a break out room, where parents can go if they become upset or need some time out.
If the hearing is for a permanent exclusion the panel will need to decide whether or not the child should be reinstated (rather than if they uphold the decision of the headteacher) and any conditions which may apply to the reinstatement. The panel will need to follow the DfE statutory guidance (available to download below). At the end of the guidance there are two useful annexes, one for parents (which you may wish to send to the parents) and one for the headteacher, which governors will also find useful.
The purpose of this procedure is to ensure that everyone present at the meeting has the opportunity to ask questions and that the panel obtains sufficient and appropriate information to enable it to make a decision about reinstatement. In reaching a decision on whether or not a pupil should be reinstated, the panel should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the head teacher’s legal duties and any evidence that is presented to the panel in relation to the decision to exclude.
When establishing the facts in relation to an exclusion the panel must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ (it is more likely than not that a fact is true) rather than the criminal standard of ‘beyond reasonable doubt’.
The exclusion rates for certain groups of pupils are consistently higher than average. This includes: pupils with SEN; pupils eligible for free school meals; looked after children; and pupils from certain ethnic groups. The headteacher should consider what extra support might be needed to identify and address the needs of pupils from these groups in order to reduce their risk of exclusion. There are certain groups of pupils with additional needs who are particularly vulnerable to the impacts of exclusion. This includes pupils with Education and Health Care Plans (EHCP) and looked after children. The headteacher should, as far as possible, avoid permanently excluding any pupil with an EHC plan or a looked after child. Where a school has concerns about the behaviour, or risk of exclusion, of a child with additional needs, a pupil with an EHC plan or a looked after child, it should, in partnership with others (including the local authority as necessary), consider what additional support or alternative placement may be required. This should involve assessing the suitability of provision for a pupil’s SEN.
In deciding to exclude the headteacher should ask themselves if they considered factors that could have contributed to the pupil’s behaviour (e.g. SEND or bereavement) and sufficiently taken these factors account? And if exclusion was the most appropriate and reasonable sanction, and consistent with the school’s behaviour policy?
Suggested agenda for the panel meeting
The procedure for the panel meeting is under the direction of the Chair of the Committee, who should ensure the meeting is carried out in ‘Part 2’ procedure (which is used for confidential business). The Committee may ask questions, through the Chair, of anybody at any stage in this procedure; the governors/trustees do not have to wait until stage 12.
- The Chair invites the Headteacher to make a statement to the Committee to expand on, or summarise, the points in his/her written report
- The Chair invites the parents/carers (or representative speaking on their behalf) to ask the Headteacher questions about the report and statement
- If the Headteacher has called any person to provide information, the Chair should now invite that person to make a statement to the Committee
- The Chair invites the parents/carers (or their representative) to ask this person questions
- The Chair invites the parents/carers to make their statement to the Committee
- The Chair invites the Headteacher to ask the parents/carers questions
- If the parents/carers have called any person to provide information, the Chair should now ask that person to make a statement to the Committee
- The Chair invites the Headteacher to ask this person questions
- The Chair invites the local authority officer to make a statement to the Committee
- The Chair invites the Headteacher to ask the LA officer questions
- The Chair invites the parents/carers (or their representative) to ask the LA officer questions
- The Chair invites members of the Discipline Committee to question the Headteacher, parents/carers and LA officer. In considering whether to direct reinstatement, the Committee should seek the LA Officer’s views as to what support could be made available to assist with reintegrating the pupil.
- The Chair asks the Headteacher to make a closing statement to summarise his/her position
- The Chair asks the parents/carers (or their representative) to make a closing statement
- The Chair asks the LA officer to make a closing statement
- The Chair asks the Headteacher, the parents/carers (or their representative), the LA officer and anyone called to give evidence to leave the room, while the Discipline Committee makes its formal resolution which will be minuted by the Clerk. (The clerk does not need to minute the discussion leading to the decision, but will minute the decision reached and the reasons for that decision).
- The Clerk asks all parties to return to the meeting for the Chair to notify them all of the decision. This decision must be confirmed in writing, detailing the appeal process if the decision was not to reinstate the pupil. (A model letter is available below.)
The role of the external Independent Review Panel (IRP)
A governing board should appoint at least three of its members as a permanent Disciplinary Committee ready to react to any exclusion; they should receive training in the role and it is essential that they understand the detail of, and follow, the DfE guidance. Governors and trustees on the Disciplinary Committee need to decide, in the case of permanent exclusions, whether or not to reinstate the excluded pupil. In arriving at their decision, they need to be satisfied that the decision taken by the headteacher was lawful, reasonable and procedurally fair; taking account of his/her legal duties and any evidence presented to the Disciplinary Committee.
Where parents dispute the decision of the governors or trustees not to reinstate a permanently excluded pupil, they have a right of appeal for this to be reviewed by the Independent Review Panel (IRP). This is not a panel constituted from members of the board in school, but is an external group. In maintained schools any parental appeal is directed to the IRP co-ordinated by the Local Authority; many academy schools choose to direct appeals to this IRP to avoid having to find and train appropriate individuals to form an independent panel. At this review meeting a governor or trustee from the Disciplinary Committee will be asked to explain how and why the committee reached their conclusion and the IRP will apply the following tests:
- Illegality - did the headteacher and/or governing board act outside the scope of their legal powers in taking the decision to exclude?
- Irrationality - was the decision of the governing board not to reinstate the pupil so unreasonable that it was not one a sensible person could have made?
- Procedural impropriety – was the process of exclusion and the governing board’s consideration so unfair or flawed that clearly justice was not done?
Role of the Independent Review Panel (IRP)
The role of the IRP is to review the governing board’s decision not to reinstate a permanently excluded pupil and to ensure this decision was impartial and independent. To do that the IRP must consider the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded and have regard to the interests of other pupils and people working at the school.
An Independent Review Panel has the power to:
- Uphold the governing board's decision
- Recommend that the governing board reconsiders reinstatement
- Quash the decision and direct that the governing board reconsiders reinstatement.
Whilst the IRP does not have the power to reinstate an excluded pupil, if it recommends that the board reconsiders reinstatement an appropriate committee with delegated responsibility would then have to meet to reconsider the original decision within 10 days. If the IRP decides that the exclusion was unfair or illegal and directs the board to reconsider, a financial budget share adjustment of £4000 can be levied on the school if it refuses to offer to readmit the excluded child.
Prior to the IRP meeting, the school must provide relevant paperwork to the clerk of the IRP in order to circulate to all parties; along with any information provided by the parent. At the Panel, all parties have the right to be represented and the Panel will ask to hear from those involved in the incidents leading to the permanent exclusion. The governor or trustee attending to represent the board will be asked to explain the reasons why the Discipline Committee decided to uphold the exclusion and will need to be prepared to answer questions from both the Panel and the parent to clarify any points raised.
It will be a judgement for the Panel about the quality of the Disciplinary Committee’s decision-making process and whether or not there has been a breach of points of procedure or something more substantive.