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Exclusion Procedure

principles

The Headmaster is charged by the Governing Body in carrying out their Discipline Statement and in enforcing the School’s Managing Pupil Behaviour Policy.

The Governing Body regards the good order of the School as of primary importance in allowing pupils to develop fully their academic, religious, musical and sporting education.  Pupils who regularly infringe the good order of the School to the detriment of their fellow pupils can expect to be excluded.

The Governing Body is mindful that the School is regularly oversubscribed.  The impact of poor behaviour can, in the experience of the Governing Body and the School, be exacerbated in an overcrowded and busy school community.  The Governing Body and the School will take account, as an important and material factor in the exercise of the Exclusion Procedure, of the impact of poor behaviour in an overcrowded School community.

The Headmaster’s decision permanently to exclude a pupil will be considered by an Exclusion Review Committee of the Governing Body (“the Committee”).

The Committee will consider the interests and circumstances of the excluded pupil, the circumstances of the exclusion and have regard to the interests of other pupils and staff at the School.

The School will have regard to the public sector equality duty to eliminate unlawful discrimination and to advance equality of opportunity.  The Headmaster and Governing Body will take account of their statutory duties in relation to special educational needs (SEN) when administering the exclusion process.

Permanent Exclusion

Preventative measures; pupils vulnerable to exclusion

The School will take account of statutory and non-statutory guidance where appropriate in seeking to identify preventative measures which will reduce the instances of permanent exclusions.  The Headmaster should consider extra support where necessary to identify and address the needs of pupils from groups with disproportionately high rates of exclusion.

The School will assess whether appropriate provision is in place for pupils with SEN or disabilities in deciding whether to exclude.  The Headmaster may consider the use of a multi-agency for pupils who demonstrate persistent disruptive behaviour.  Where a pupil has received multiple exclusions or is approaching the legal limit of 45 school days of fixed period exclusion in an academic year, the Headmaster may consider whether exclusion is providing an effective sanction.

The School will – so far as it is able and without impacting upon the education of other pupils in the School – avoid excluding permanently pupils with statements of SEN or who are looked after children.  The School will engage proactively and in partnership with parents, foster parents, home workers and local authorities as appropriate in supporting the behaviour of pupils with additional needs.  It may consider additional support, alternative placements and early, interim or emergency reviews of SEN.

Exclusion

The Headmaster will exclude a pupil permanently where:

  • the pupil has engaged in a serious breach or persistent breaches of the School’s Managing Pupil Behaviour Policy; and
  • allowing the pupil to remain in School would seriously harm the education or welfare of the pupil or other pupils or staff in the School

In deciding whether or not to exclude, the Headmaster may take account of any contributing factors such as bereavement or bullying which may have caused, wholly or partially, the incident(s) of poor behaviour.

The Headmaster is the sole person who is authorised permanently to exclude a pupil.  He will reflect carefully before deciding to do so.

Duty to inform parents

On excluding a pupil, the Headmaster will notify parents of the exclusion, its duration and the reason for it.  Parents may expect to receive a letter setting out:

  • the reason for the exclusion
  • if a fixed term exclusion, the duration of the fixed term
  • if a permanent exclusion, the fact that it is permanent
  • the parents’ rights to make representations to the Governing Body and the pupil’s right to appear before the Exclusion Review Committee of the Governing Body
  • how representations may be made
  • where there is a legal requirement for the Governing Body to consider the exclusion, that the parents are entitled to attend the meeting and to be represented, at their expense, at the meeting

Where an excluded pupil is of compulsory school age, the Headmaster will notify parents without delay, and by the end of the afternoon session that for the first five days of an exclusion (or until the start date of any alternative provision where this is earlier) parents are legally required to ensure that their child is not present in a public place during school hours without reasonable justification and that parents may be given a fixed penalty notice of prosecuted if they fail to do so.

If alternative provision is being arranged, the following information must be included with this notice, where it can be reasonably found out within the timescale: 

  • the start date for any provision of full-time education that has been arranged for the pupil during the exclusion;
  • the start and finish times of any such provision, including the times for morning and afternoon sessions where relevant;
  • the address at which the provision is made;
  • any information required by the pupil to identify the person to whom he should report on the first day

Where this information is no reasonably ascertainable at the time of the exclusion, it should be provided without delay and within 48 hours before the alternative provision is due to start.  Notice will not be invalid because it was not given by the required time.

The School will inform parents where a fixed period exclusion has been extended or converted into a permanent exclusion.  In those circumstances, the Headmaster will write again to the parents setting out the reasons for the change.

Notification of an exclusion will include the following:

  • alternative arrangements for enabling the pupil to continue his education;
  • details of sources of free and impartial information

Duty to inform the Governing Body

The Headmaster will notify the Governing Body and the relevant local authority (this may be the “home authority” of the pupil if he lives outside Hammersmith and Fulham) of the following:

  • a permanent exclusion, including where a fixed period exclusion is made permanent
  • exclusions which would result in a pupil being excluded for more than five school days or more than ten lunchtimes in a term
  • exclusions which would result in the pupil missing a public examination or national curriculum test

For all other exclusions, the Headmaster will notify the Governing Body and relevant local authorities once a term.  His notifications will include the reasons for the exclusion and the duration of any fixed period exclusions.

Duty to inform the Secretary of State

If the Secretary of State requests information, the Governing Body will provide information about any exclusions within the last 12 months.

The Governing Body’s duties to arrange education for excluded pupils

Where a pupil is excluded for more than five school days, the Governing Body must arrange suitable full-time education, beginning no later than the sixth day of the exclusion, if not beforehand where possible.  The School will take reasonable steps to set and mark work during the first five days.

Where a pupil is excluded permanently, the duty to arrange suitable full-time education falls upon the local or home authority.

There is no duty to arrange provision where they pupil is in his final year of education and has completed his public examinations.

“Exclusion from maintained schools, Academies and pupil referral units in England” – Department for Education

In 2013, these include pupils with SEN, those eligible for free school meals, looked after children and pupils from certain ethnic groups, including gypsy/Roma, travellers of Irish heritage and Black Caribbean communities

Exclusion Review Committee

An Exclusion Review Committee of the Governing Body will review the decision to exclude.

The Committee will be made up of three Governors.  The School will normally not ask parent governors to sit on Exclusion Review Committees.  Staff Governors who know the pupil or who know of the circumstances of the exclusion will be asked to recuse themselves from the Committee.

The Committee will meet within 15 school days of the exclusion in the following circumstances:

  • the exclusion is permanent
  • the fixed period of exclusion will bring the number of school days of exclusion to more than 15 in a term
  • it will result in the pupil missing a public examination or national curriculum test

Parents may ask the Committee to review exclusions of between 5 and 15 school days in a single term.  Such a hearing must take place within 50 school days.

The Committee, or if it is not reasonably practicable to convene it, the Chairman of the Governing Body, may consider an exclusion where it would result in the pupil missing a public examination or national curriculum test.

The Committee will invite the Headmaster and the parents of the excluded pupil to its meeting.  The Committee will make reasonable endeavours to meet at a convenient date and time for all parties.

The Committee’s decision will not be rendered invalid if it meets outside the time limits.

 In cases of fixed period exclusions which do not bring the pupil’s total number of days of exclusion to more than five per term, the Committee cannot direct reinstatement and need not arrange a meeting with the parents.

The Committee will be one of inquiry: it will not be adversarial.  Parties who attend are required to do so in order to assist the Committee to establish those facts that it needs in order to review the Headmaster’s decision to exclude.

The Clerk to the Committee will circulate written evidence in advance of the meeting, including any witness statements and other relevant information held by the School.

Parents are entitled to attend the hearing and to be represented at the Committee.  The excluded pupil is entitled to and encouraged to attend.  Where other pupils are asked to attend, parental consent is required and the parents may attend.

The Committee has a discretion to allow an excluded pupil onto School premises to take a public examination or national curriculum.

The Committee will consider representations from     

  • the Headmaster
  • the parents of the excluded pupil

The Committee has the power to:

  • uphold the exclusion
  • direct reinstatement of the pupil immediately or on a particular date

The Committee’s findings will be made on the burden of proof of the balance of probabilities.

Where reinstatement is not practical the Committee will consider whether the Headmaster’s decision to exclude was justified on the evidence.

The normal procedure to be followed at the hearing will be:

  • the Headmaster will explain the reasoning behind his decision to exclude the pupil
  • any witnesses of fact that are required by the Committee will be heard
  • the parents will make submissions as to why the exclusion should be overturned
  • the Committee will ask the parents or their representative for questions which they wish to put to the Headmaster through the Chair of the Committee
  • the Committee will ask the Headmaster for questions which he may wish to put to parents or their representative through the Chair of the Committee
  • the Committee may ask questions of any party at any point

Minutes will be taken by the Clerk to the Committee.  They may be made available to all parties on request.  They are not a public document and should not be disclosed under the School’s FOIA Policy.

The Committee may adjourn to consider its decision.  The Committee will decide whether the decision to exclude was lawful, reasonable and procedurally fair, taking account of the Headmaster’s legal responsibilities.   A written decision will be sent to the parents as soon as practicable and normally within 10 School days.  The Headmaster and the home authority will also be informed.

Information for the parents

The letter to the parents will include the following:

  • the parents’ right to have the Committee’s decision reviewed by an independent review panel
    • the date by which an application for a review must be made ie 15 school days from the date on which notice of the Committee’s decision was given to the parents
    • the name and address to whom an application for a review together with supporting evidence should be submitted; this will usually be the clerk to the independent review panel
    • information that any application should set out the grounds on which it is being made and where appropriate a reference to how the pupil’s special educational needs are considered to be relevant to the exclusion
    • information that regardless of whether the excluded pupil has recognised educational needs, parents have a right to require the School to appoint an SEN expert to attend the review, together with details of the role of the SEN expert and that there would be no cost to parents for their appointment; parents must make clear their wish for the SEN expert to be appointed
    • parents may appoint representatives at their own expense to accompany them to the review and to be accompanied by a friend at the review
  • that in addition, parents may make a claim under the Equality Act 2010 to the First-tier Tribunal or the County Court if they consider that the exclusion was a result of unlawful discrimination; and that any such claim must be lodged within six months of the day on which the pupil was excluded

Should the Committee uphold the exclusion, the School will draw the parents’ attention to relevant sources of free and impartial information that will allow them to make an informed decision on whether and how to seek a review of the decision.

The pupil’s name will be removed from the School’s admissions register 15 school days after the parents were informed of the Committee’s decision and provided that no application has been made for an independent review; or earlier if the parents have stated in writing that they do not intend to apply for an independent review.

The pupil’s name will remain on the register if an application for an independent review is made and it will be removed once the review is concluded.

The pupil may be reinstated if a successful application for unlawful discrimination is made.

independent review panel

The Committee’s decision may be considered by an independent review panel (IRP).

Parents must apply within 15 school days of notice being given to them of the Committee’s decision to uphold a permanent exclusion.  Any application made outside this time limit will not be heard.

The review process must begin within 15 school days of the receipt by the School of the parents’ application.  The IRP will take reasonable steps to identify a date when all parties are able to attend.  If all parties are not able to attend, the IRP may meet to identify the issues involved and to adjourn until the date when all parties can attend.

The IRP will normally conduct its hearing in private at a location which it will decide. 

Constitution of the IRP

The IRP will be made up of three members.

  • the Chair will be a lay member, who must not have worked in the School in a paid capacity.S/he may have been a school governor or volunteer
  • a school governor who has served for at least 12 months in the last five years (and who was not a head teacher in that time)
  • a head teacher or former head teacher in the last five years

The following are not eligible to sit on the IRP:

  • current Governors of the School
  • the Headmaster (or former Headmaster in the last five years)
  • employees of the School
  • anyone who has had any connection with the School which might reasonably be taken to cast doubts about their impartiality

There can be no substitution of IRP members once a review has begun.

Reasonable expenses of the IRP will be met by the School and the School will take steps to indemnify IRP members from any legal costs or expenses reasonably incurred as a result of any decisions or actions connected to the review which are taken in good faith.

Members of the IRP will declare any conflict of interest at the earliest opportunity.

The School will arrange training for members of the IRP.

Clerk

The School will appoint a clerk to advise the IRP.  He will make arrangements for the review hearing, circulate papers and take the minutes of the hearing.

The clerk will not be the clerk to the Committee.

Parties to the review

The following are entitled to attend or be represented at the IRP:

  • the parents of the excluded pupil and their representative
  • the Headmaster and his representative
  • the Governing Body and their representative
  • an SEN expert if requested by the parents

The excluded pupil may attend the IRP or make oral or written representations.

A victim of an incident which led to the exclusion of the excluded pupil may attend or make oral or written representations.

The IRP will make reasonable efforts to circulate relevant papers to the parties five school days before the review.  The papers will include:

  • the Committee’s decision
  • the application for a review
  • any policies or documents to which the Committee was required to have regard to in making their decision

The review hearing

The IRP will review the Committee’s decision not to reinstate the excluded pupil.

The IRP will consider the interests and circumstances of the excluded pupil, the circumstances of the exclusion and the interests of other pupils and staff.

The IRP will make its findings on the balance of probabilities.  Its decision may be made by a majority vote.

The IRP has the following powers:

  • to uphold the exclusion decision
  • to recommend that the Committee reconsiders its decision
  • tooverturn the decision and to direct that the Committee considers the exclusion again

In the case of the second power – to recommend reconsideration – the School is not obliged to follow the recommendation.  The IRP is not bound to consider making a recommendation as a default to quashing the decision.  It should be used where the panel believes that evidence or procedural flaws justify a reconsideration of the Committee’s decision.

In the case of the third power – to overturn the decision and to direct reconsideration – the IRP may only exercise it if it is satisfied that the decision was flawed in the light of the application of principles of judicial review (“JR principles”):

  • illegality – has the Headmaster and/or the Committee acted outside the scope of their legal powers in deciding to exclude
  • irrationality – was the decision of the Committee not to reinstate the pupil so unreasonable that no sensible Committee would have made it
  • procedural impropriety – was the process of exclusion and/or the Committee’s subsequent consideration of it so flawed that it impacted significantly upon the decision to exclude.

If the IRP is satisfied that the decision to exclude was reasonable, it should uphold the exclusion.

If the IRP is satisfied that the decision to exclude should be not overturned on JR principles, it may uphold the exclusion.

If the IRP is satisfied that it should not overturn the decision to exclude, it may consider whether it would be appropriate to recommend that the Committee reconsiders its decision not to reinstate the former pupil.

If the IRP is satisfied that it should not overturn the decision to exclude and that it should not recommend that the Committee reconsiders its decision not to reinstate the former pupil, it should uphold the exclusion.

Procedure

The IRP hearing is an inquisitorial hearing not an adversarial one.  Parties are required to attend in order to assist the IRP in making its decision.

The Chair of the IRP should ensure that the hearing is conducted in an accessible, non-threatening manner.  S/he should explain that the IRP is independent of the School and Academy Trust. 

Evidence may be given by witness statements.

  • A representative of the Committee will explain the decision to uphold the exclusion.
  • A representative of the School will explain the decision to exclude.
  • The parents or their representative will set out their grounds for overturning the decision to uphold the exclusion.

Questions may be asked of all parties by the IRP.

Witnesses may be called.

The IRP may wish to have evidence from those involved in the incident or incidents which led to the exclusion.  Where those witnesses are pupils at the School, it is preferable that witness statements should be used.

The IRP will adjourn to consider its decision in the absence of the parties.   

New evidence

The IRP has to take account of different evidence in exercising its powers as set out above.

In considering whether to overturn the decision to exclude on the grounds that the Committee’s decision was flawed, the IRP will only take account of the evidence that was available to the Committee at the time of its decision. 

In deciding whether to recommend the Committee should reconsider its decision, the IRP may take account of new evidence, where the IRP considers it to have been unreasonable to have expected the Committee to have been aware of it at the time of its decision.

SEN

If an SEN expert has been requested, the IRP must have regard to their view on how SEN may be relevant to the former pupil’s exclusion.

If an SEN expert has not been requested, the IRP should make parents aware of their right to request an expert and the hearing should be adjourned until the expert can attend.

Readjustment to the School’s Budget

Should the IRP direct that the Committee reconsider an exclusion, it may order that, if the School does not reinstate the former pupil with 10 school days of receiving the IRP’s decision, the School should pay a sum of £4,000 to the local authority (being Hammersmith & Fulham). 

If the School offers reinstatement, but the parents decline it, no budgetary readjustment need be made.

Should the IRP recommend that the Committee reconsider its decision, it has no power to order a payment.

The Decision

The decision should be sent without delay.  It will include:

  • the IRP’s decision and the reasons for it
  • where relevant details of any financial readjustment
  • any information that must be recorded on the former pupil’s educational record to reflect the decision

The decision should be sent to the home authority.

Records

The Clerk will take minutes of the hearing, detailing attendance, the voting of the IRP and the decision.

The minutes of the hearing are not public documents and should not be disclosed under the School’s FOIA Policy.  They should be retained for at least five years.

Reconsideration of an exclusion decision

Where the IRP directs or recommends that the Exclusion Review Committee reconsiders its decision, the Committee will reconvene within 10 school days after receiving the IRP’s decision. 

The Committee will consider whether to accept the direction or recommendation of the IRP.

Once it has made its decision, the Committee will inform the parents, the Headmaster and the local and home authorities.