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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S & Ors v London Borough of Brent & Ors. Oxfordshire County Council Head Teacher of Elliott School & Ors  EWCA Civ 693 (17th May, 2002)
Cite as:  EWCA Civ 693,  ELR 556
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR. JUSTICE SCOTT-BAKER
MR. JUSTICE NEWMAN
MR JUSTICE TURNER
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
MR. JUSTICE CHARLES
| “S” |
|LONDON BOROUGH OF BRENT & ORS.|
OXFORDSHIRE COUNTY COUNCIL
HEAD TEACHER OF ELLIOTT SCHOOL & ORS.
SECRETARY OF STATE FOR EDUCATION and SKILLS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Murray HUNT and Oliver HYAMS (instructed by Ashok Patel & Co.) for “T”
David WOLFE (instructed by Levenes) for “P”
Peter OLDHAM (instructed by Legal Services, London Borough of Brent) for “S”
Oliver HYAMS (instructed by Legal Services London Borough of Brent) for “T”
Nigel GIFFIN (instructed by Legal Services, Oxfordshire County Council)
Clive LEWIS (instructed by Treasury Solicitor) for the Secretary of State.
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann:
2. The Queen (S) v The LB Brent  ELR 57, which we shall refer to as Re S, concerns a 16 year old boy (S) with a troubled background who lived with his grandparents. He was permanently excluded after a serious fight with another boy C. The fight took place on 2 October 2000. C was excluded for three days. S does not, and did not, dispute that a serious fight took place. The contentions which relate to the individual facts of this case are that:
(a) the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of Guidance issued by the Secretary of State (“the Guidance”),
(b) having regard to the overall role of the local education authority (“LEA”) the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper,
(c) the Appeal Panel failed to give proper regard to S’s mitigating circumstances (which is both a freestanding point and part of the argument relating to (a)), and
(d) the Appeal Panel failed to comply properly with paragraph 16 of the Guidance when considering and comparing the position of the other pupil involved in the fight.
(a) the Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance,
(b) having regard to the overall role of the LEA the written and oral representations of the Exclusions Officer of the LEA (Easter Russell) to the Appeal Panel give rise to an appearance of bias, or are otherwise improper, and
(c) the Appeal Panel failed to allow questioning of the teachers involved in the incident.
(a) the contention that an Appeal Panel treated its discretion as being fettered by paragraphs 17 and 18 of the Guidance is raised in each appeal;
(b) the issue of whether improper representations were made by the Exclusions Officer of the LEA is raised in both Re S and Re T (no representations were made by an Exclusions Officer in Re P); and
(c) further specific points are taken in Re S and Re T.
The statutory Background
The Law : The Appeal Panels
The Law : The Guidance
“3………Responsibility for tribunals and their administration should not lie with those whose policies or decisions it is the tribunals’ duty to consider. Otherwise for users, as has been said, ‘Every appeal is an away game’.”
“11. It has been suggested that there is virtue in keeping the policy of a department and the administration of the tribunal through which it is implemented under the control of the department. The contrary is true. The very fact that a department is responsible for the policy and the legislation under which cases are brought in the tribunal it sponsors leads users to suppose that the tribunal is part of the same enterprise as its sponsoring department…..[T]he apparent dependence of a tribunal on its sponsoring department is indefensible.”
Where, as in the case of exclusion appeals, Parliament has taken care to create an arm’s-length relationship between the department, the LEA and the panel, it is doubly unacceptable to use the power to give guidance in a way which collapses the constitutional distinction – none the less real for the absence of a bright line - between the administrative (i.e. policy-making) and the adjudicative (i.e. quasi-judicial) functions of the state. The question is whether that is what has happened here.
18. One factor which may become relevant in answering the question is the form and context in which the Guidance has been promulgated. The well-presented and coherent Circular 10/99 sets a chosen tone by its title: “Social Inclusion: Pupil Support”, in contrast to the predecessor Circular 10/94, “Exclusions from School”, and situates exclusion within inclusion as a final resort. The amendment with which these appeals are principally concerned represents a modification of that Guidance which was announced by the minister, Ms Jacqui Smith, in a speech to one of the teaching trade unions, the Professional Association of Teachers, on 1 August 2000. Both its presentation and the press release which accompanied it (“Schools minister reinforces powers of heads to exclude pupils”) make it evident that the changes were in part intended to satisfy or mollify a particular constituency and a particular segment of public opinion. We say “in part” because the announcement also had the purpose of altering the statutory guidance given to Appeal Panels. We will come to the question whether it went beyond the statutory power in this regard, but it is relevant to bear in mind that the legitimate purpose of statutory guidance to Appeal Panels under this Act will inevitably be narrower than the legitimate range of government policy. The Secretary of State is empowered by statute to publish her guidance “in such manner as she thinks fit” (s.142(8) of the 1998 Act and s.571(1) of the 1996 Act); but to liberate her from the need to lay a statutory instrument before Parliament is not the same thing as making the manner of promulgation immaterial. If ministers decide to exercise statutory powers of great importance to the legal position of individuals (and not only pupils) by announcing them in a manner or in a context suggestive of a search for political gain, the courts are likely construe the announced changes cautiously. In Porter v Magill  2 WLR 37 (the Westminster surcharge case) Lord Hope endorsed the Divisional Court’s view that:
“the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself and perhaps also to his firm.”
He went on, as did the House, to acquit the auditor of apparent bias; but it is clear that the auditor would have done better not to have taken the risk. We note in the present case that the Council on Tribunals itself in mid-August 2000 wrote a strong letter to the Department expressing concern that the first the Council had known about the changes was the press report of the minister’s speech; asking why there had been no prior consultation with the Council; and pointing out a number of serious concerns about the revision. We have not been shown the Department’s reply.
The Law : The Local Education Authority
The Law : The Conduct of the Appeal Panel hearing
The validity of paragraphs 17 and 18 of the Guidance
“1. This case concerns the exclusion from school of S. S is 16. He has a sad background. His parents separated early in his life, and both of them ended up serving prison sentences. S was taken into the care of the London Borough of Camden. At the age of 2, he was placed with his maternal grandparents under a residence order. He did well at primary school and in September 1996 started at Wembley High School. Matters were satisfactory to start with, but then he became unhappy. He was involved in fights and he was bullied.
2. In October 1999, S’s mother died at the age of 32, of a heart attack. He was devastated. His grandmother discussed the situation with Ms Easter Russell, the exclusions officer for the London Borough of Brent. They agreed that it would be a good plan if S moved schools, and he moved in January 2000 to the John Kelly Technology College for Boys. At first this resulted in a big improvement for S, but the improvement did not last. He was the subject of two temporary exclusion orders, the first from 10-16 May 2000, for verbally and physically threatening a teacher and a student; the second between 14 and 19 September 2000, for similar conduct.
3. Then on 2 October 2000 occurred the incident that led to the permanent exclusion which is the subject matter of this case. The incident involved a boy called C. It began with paper darts being thrown and, apparently, the claimant being threatened with a lighter. The next thing that happened was that C stabbed S, the claimant, with a pencil, and this drew blood from his stomach region. There followed a fight, in the course of which S stabbed C with a screwdriver. Teachers intervened to try and get the boys to stop. S would not stop, but the other boy did. As a result of this incident, the other boy, C, was given a fixed-term exclusion of 3 days, and S was excluded permanently.
4. The headmaster made that decision in S’s case on 9 October last year, and the decision was upheld on 1 November by the governing body. S appealed to the independent appeal panel of the Brent Council. His appeal was dismissed on 23 November last year. It is that decision that gives rise to this application for judicial review.
5. For some time S has been supported by a charity called Turnaround, and indeed representatives of that charity helped him with the appeal.”
“The exclusion appeal will be heard by an independent appeals panel made up of a LEA appointee who is somebody with knowledge of education conditions in the area and two lay members. John Kelly Boys Technology College will be represented by the head teacher and the chair of the governing body of the school. The Clerk to the Appeals Panel (myself) will be present to take a record of the meeting and also a legal adviser to ensure that the procedure is followed correctly.
The procedure that will be followed at the appeals hearing is listed below:
- the case for the school;
- questioning of the school by the parent or pupil;
- representations by the governing body;
- questioning of the governing body by the parent or pupil;
- representations by the LEA;
- questioning of the LEA by the parent or pupil;
- the case for the parent or pupil;
- questioning of the parent or pupil by the school, governing body and LEA;
- summing up by the school;
- summing up by the governing body;
- summing up by the LEA;
- summing up by the parent or pupil.
Finally when the case has been heard, all parties, except for the legal adviser and the Clerk will leave the meeting and the panel will make a decision. I will contact you the following day to inform you of that decision, and confirm this in writing the same day. A letter will also outline any further action that you need to/and take.”
“Here we have a bright student that was in the top ten in his school and due to a fight between two students S could stand to lose everything that he has struggled against all the odds to achieve MEANING TO BE A SUCCESS, TO SHOW HIS FATHER WHO IS A JAILBIRD THAT HE HAS CHOSEN A BETTER LIFE FREE FROM CRIME AND OTHER DEVICES.
I am not saying that S should not have been excluded, the two boys were guilty equally the other boy held a fire to S’s face and then stabbed him in his stomach where he also sustained an injury. It was at this point that S retaliated, (S then left the school grounds because he was always told by Mr Ball if he is not around it is best to walk away and cool down) BUT THE SANCTION OF PERMANENT EXCLUSION IS TOO HARSH A PUNISHMENT IN COMPARISON TO WHAT THE OTHER PUPIL RECEIVED. He only got a fixed term exclusion and is long back in school? This is not in line with DFEE circular 10/99 laid down by the Secretary of State guidelines.
S has lived with his gran since he was a toddler because his mum was a drug user. He has had a lot of back and forth episodes between different households. A few months before his mother passed away she wrote to him asking to see him, he refused this visit. UNFORTUNATELY SHE DIED OF A HEART ATTACK LAST OCTOBER S went to pieces.
The date of this last incident was the first anniversary of his mother’s death.........
When I asked him if he wanted to return to school and sit his exams he stated “MORE THAN ANYTHING ELSE IN THE WHOLE WORLD IT MEANS EVERYTHING TO ME”.
I hope the Panel find it in their heart to give this young man a chance to be a real success and move on to repair the setbacks that he has had.”
“The LEA officer, Ms Russell was invited to make her representation:
ER: Ms Russell stated that she had initially met S at Wembley High School and that his move to John Kelly Boys had not been a technically managed one because S had not been permanently excluded. It was explained that S had been involved in an incident with his Head of Year, which could not be resolved, and therefore admittance to John Kelly College was perceived as the best course of action to follow.
The meeting was informed that S had experienced many emotional difficulties and was presently living with his grandparents. She also confirmed that S had refused any form of Counselling sessions and therefore, the option of referral to Mentoring Plus was seen as the best possible course of action.
Ms Russell expressed her concerns of S being excluded during the period leading up to his mock exam, especially as S had been very eager to sit all of his eight GCSEs. She pointed out, that the other alternatives available for S were five GCSEs at the PRU or a vocational course at NW London College.
Ms Russell stated that she recognised the difficulties imposed upon the college in trying to balance the needs of the school community with what was right for S.”
“Background information regarding S’s emotional circumstances was stated about his parents and facts relating to the anniversary of S’s mother’s death coinciding with the date that S was involved in the exclusion incident were highlighted. Character reference provided by the Sergeant of the Cadet Group was also distributed to the Panel which reflected the hard working honest and determined attitude that S displays. S attends the cadet group on a voluntary basis at least once a week.”
“S had been making good progress at Mentoring Plus and regularly attended the project where he had formed good relations with others.”
“The panel considered first the evidence of the alleged incident for which S was permanently excluded. The assistant head teacher of John Kelly Boys Technology College, Mr Lynnes, presented evidence that S had shown serious actual violence towards another student of the college, causing injury. The Panel also heard evidence from S stating his version of the events. The Panel found that S had behaved in the way set out in the exclusion document and its attachments. Misbehaviour was seriously disruptive and a danger to S, other students and staff of the college. The Panel felt that the college had taken measures to avoid the need of permanent exclusion, especially with regard to the short period of time that S had been a pupil at the college, but the nature and outcome of the behaviour displayed by S was serious enough to warrant permanent exclusion. In arriving at this conclusion, the Panel had particular regard to the duty of care held by the college towards other students and staff in accordance with the guidelines stated in circular 10/99 Annexe D (paragraphs 17 & 18) from the Secretary of State.
The Panel made a number of points about the evidence presented:-
(a) The Panel took the view that the college had tried to implement an appropriate Pastoral Support Plan, but had found it difficult to do so to the full, due it seemed to S’s lack of co-operation. More significantly, the short period of time that S was in college, hindered the college from adhering to and implementing effective Pastoral Support guidelines. However, the Panel felt that further effort by the school to pursue this strategy may have proven beneficial to all parties concerned.
(b) The Panel also considered the other strategies implemented by the college to support S in response to his previous misconduct and decided that a range of strategies had in fact been tried, including mentoring, report monitoring to control behaviour, support sessions, case conferencing, referral to the Exclusions Officer and temporary exclusions. Counselling sessions offered by Mr Young to control temper outbursts and bereavement counselling offered by Ms Russell were declined by S. The Panel were satisfied with this response.
(c) It was stated by your representative, Ms Townsend, that the behaviour displayed by S deteriorated upon his personal mentor taking sick leave, and no other alternative support was provided. Mr Young replied that it was at this stage that the Pastoral Support Plan was suggested and in addition both himself and Mr Lynnes, (who was also S’s form tutor) had offered an “open door walk in policy” whenever S felt the need to talk to someone or to have someone listen. The Panel agreed this was sufficient provision.
(d) Ms Townsend also expressed concern that the college had not maintained regular contact with the Mentor Support Group, to review the progress made by S. The Head responded that as Ms Russell was responsible for the referral, progress regarding S’s case was discussed during meetings held between himself and Ms Russell which the Panel accepted.
(e) The Panel considered whether there was any issue of unfairness arising out of the way the other pupil involved in the incident was dealt with, especially as the other pupil had used a cigarette lighter during the incident . The Panel heard evidence from Mr Young that during the incident, the other pupil had responded to the teacher’s request of stopping the dispute and had walked away from the scene. However S had continued with his disruptive behaviour. Mr Young advised that the other pupils mitigating circumstances, inappropriate for discussion, at the hearing were taken into consideration. The Panel were satisfied with the evidence presented by the college.
(f) Concern was also expressed by S at not being allowed to sit his mock exams, especially when another pupil who had also been excluded had been allowed admittance. However this particular pupil had only been temporarily excluded and had previously made arrangements to sit the mock exams. The Panel accepted that the rules governing permanent exclusion prevent permanently excluded pupils from having any access to the college.”
Taking into account all the above factors, the Panel concluded that permanent exclusion was the most appropriate sanction given the very serious nature of this incident. In view of the facts presented at the hearing, the Panel wished to convey their sympathies towards S’s personal circumstances and wish him every success for the future.”
Mr Young is the head teacher and Mr Lynnes is a teacher.
“I work closely with schools and families with regard to children who are at risk of permanent exclusion, attempt to promote good practice in schools and help liaise with the external agencies where requested to do so by School. After a permanent exclusion has taken place, I endeavour to work closely with the child and his/her carers to try and secure a smooth transition into suitable alternative education. I also attend Independent Appeal Panels (i.e. IAPs) to convey any comments that the LEA may have. I am one of three Exclusions officers currently employed by the Brent Council, although at the time of the IAP in this case, I was working alone in that role.”
“That S was not offered a Pastoral Support Programme with targets
That S was not placed on report
No adequate therapeutic support was offered
A lack of appropriate and consistent support from Senior Management/Year Co-ordinator/Form Tutor.”
Re T : Background
 T was excluded from school following a warning for misbehaviour on 5 December 1999 and for misconduct on 24 January 2000 in that it was alleged that he had attempted to attack a fellow pupil and had punched and pulled the hair of a teacher who had intervened in the situation. Two other teachers were present for all or part of the incident, as were the pupils. The pupil alleged to have been attacked by the claimant was a pupil who had special needs and no statement was taken from that pupil, but statements were taken from the teachers and from other pupils and from the claimant. It is not in dispute that very serious misconduct being in case, the standard of proof which was required was not that of the ordinary balance of probabilities. It had to be shown that it was distinctly more probable than not that the claimant was involved in the incident (see Brooke LJ in R v Head teacher and Independent Appeal Committee of Dunraven School ex parte B  ELR 156).
 Mr Rawlings submitted that fairness required that the claimant’s mother should have been given an opportunity to question the teacher, whom it is said the claimant attacked, or the other two teachers who gave witness evidence on the basis of which the claimant was permanently excluded from the school. The claimant’s case involved the contention that he had been provoked by the alleged victim and it was submitted that inadequate scrutiny had been given to this aspect of the case.
 It is not the law that in all cases where the facts underlying an exclusion from a school are disputed it is necessary to call the witnesses of fact so as to enable the excluded pupil’s representative to question those witnesses. The fundamental principle which was upheld in the case of Dunraven was that the pupil, through his or her parent, had a right to be heard. For that to be worthwhile the parent had to be supplied with the material and statements, not that the witnesses themselves should be available to be questioned. It is to be noted that the Department for Education and Employment guidance (Circular 10/99) does not require the calling of witnesses. All the relevant information was disclosed to the claimant’s mother before the hearing and no particular feature of the case has been drawn to my attention which compels one to the conclusion that it was necessary in the interest of fairness for the IAP to permit cross examination of the teachers involved. The IAP had before it an evidential basis for concluding as it did, and I am simply not persuaded that any unfairness appears.”
“It is with much regret that I write to you about your son T. On Monday 24 January 2000 T was involved in an extremely serious incident involving an assault on a member of my staff.
During his music lesson T went up to another pupil in the class and grabbed her round the neck starting a fight. The class teacher called for assistance. When the head of Drama arrived to assist she told T to take his hat and coat off; when he refused, she removed his hat. At this point he appeared to lose control, pulling the teacher’s hair, punching her and making very offensive remarks. The teacher had to restrain T physically by holding him away from her until two other teachers came to take T to the TSU.
T denies many of the events above. However, I spoke to both members of staff a few minutes after the incident. They were both quite shocked and independently recounted the events as I have recorded them. In view of the level of violence against a member of staff in my school I have no alternative but to permanently exclude T from Wembley High School from Friday 28 January 2000.”
“The school stated their case first thereafter our representative stated our case. The head teacher was there on his own giving his representations and a representative from the LEA was also present, Easter Russell. Neither Mr McManus nor Ms Foster [the teachers] were present in order to give T and myself the opportunity to cross examine them. [J], the alleged victim, was not available for cross examination either. I found this to be extremely unfair as this did not give T the opportunity to put his case forward. I also found one of the members of the panel to be extremely arrogant in his line of questioning. It made me feel as though he had already made up his mind and had upheld the head teacher’s decision long before T was given the opportunity to give his version of events. He seemed to disregard all the evidence that was put before him and did not take into account that the main witnesses were not present. I also made it a point and mentioned this to the Panel that this was the first Panel hearing that I had been to where the main witnesses were not present.
I informed them that I too had sat on Panel hearings and that this was the first where something like this had happened. I also stressed the fact that I had not received any of T’s school records. When I questioned the head teacher about this he stated that he had received nothing from T’s previous school, Mitchell Brook and that as his term was so short at Wembley High School there were no records on him.”
“I note that the applicant now complains that she was not given the opportunity to cross examine the teachers or any of the pupil witnesses. I would say that both myself and governors consistently apply procedures that are always being followed in meetings with parents of excluded pupils and the governors’ disciplinary committee. The procedure is to provide written statements from relevant witnesses that form the basis on which the decision to exclude is made. These statements were made available to the applicant and the governors. In fact, the appeal hearing was adjourned to enable the applicant to properly consider the witness statements. It has never been the school policy to allow cross examination of teacher or pupil witnesses in these situations. It is my view that pupils and parents will be most reluctant to be subject to cross examination in this way and in fact, many pupils insist on confidentiality when giving statements about incidents involving other pupils. Similarly, I do not have the authority to instruct members of staff to attend hearings and have their statements cross examined.”
“Doing the best I can to recall, [T’s mother] did during the course of the hearing, express some concern as to the absence of any witnesses at the hearing. I replied that the committee does not normally call for oral evidence, but relies solely on available witness statements. In my experience I have never had witnesses present at these hearings for the purpose of giving evidence. To my knowledge guidance from the Secretary of State does not include a requirement for witnesses to be physically present to give evidence, and I foresee difficulties if schools adopted a practice of calling witnesses. The school has never had a policy of calling witnesses for an exclusion appeal. It is felt that many pupils would feel intimidated by this and would therefore be unwilling to give statements. Staff can not be instructed to attend. Although I do remember that a question was asked about why there were no witnesses present, I do not remember whether it was [T’s mother or her representative] who brought it up. It was explained that this was not the normal procedure for such a hearing. There was an expression of surprise at this but the point was not pressed.”
“Easter Russell was present but did not assist me as she was sitting on the side with the school and did not help T’s situation.”
“I also challenged the colloquial term that Ms Foster used in asking T whether he thought he was “hard”. This was a clear provocation, it was not surprising that it resulted in an argument or physical/verbal fight. The head teacher defended Ms Foster’s use of the colloquial expression in that he stated that that actually defused the situation. I could not understand how such a provoking sentence could have defused the situation and if that was the case why did she go on to snatch T’s cap from his head.”
“My main line of questioning was how much training each member of staff had received in relation to behavioural management of pupils and if they receive it how often is it given to them. I wanted to know whether members of staff are given restraining technique training. When I posed these questions to the head teacher he avoided giving me a direct answer and disregarded the main issue that I was trying to get at.”
“I again questioned the absence of Mr McManus, Ms Foster and [J] and the head teacher informed me that the written statements were sufficient although [J] never made a statement.”
“I was surprised that the LEA representative, Easter Russell was allowed to make representations in favour of the school’s decision to permanently exclude T. I was aware that the LEA’s representative are given the right to make general representations at the hearing but did not think it was appropriate to allow her to make representations in favour of any party as this appeared to prejudice T’s opportunity to have a fair hearing.”
“To the best of my recollections [T’s mother] did not complain about procedural defects to us. She simply stated her case, and in closing read out a prepared statement. ”
65. Our conclusions as to the attempts made by T’s mother to secure the attendance of the teachers. Doing the best that we can with the material before us, none of which was the subject of cross-examination in the judicial review proceedings, we have concluded that the situation was probably as follows. T’s mother wished to have the opportunity to question Ms Foster. She made that clear to the head teacher who allowed her to do it in January. She repeated that request to the Disciplinary Committee in February but they did not accede to it. She mentioned it to the head teacher probably before the Appeal Panel hearing in March. He probably made it clear to her that he was opposed to making teachers available for such a hearing, and we think it probable that she consequently did not ask the Appeal Panel either before or during the hearing that they should request the teacher to come.
“1 REASONS FOR THIS EXCLUSION
(a) In what way has the pupil breached the school’s behaviour policy or broken the law
T physically assaulted a member of staff in a violent and uncontrolled manner. A member of staff had gone to T’s class following his assault of another pupil in the group. During the assault on the teacher he made very offensive remarks. This incident follows a previous incident when T grabbed a teacher’s arm. Following that incident T was warned that the school could not tolerate a further “incident of this nature”.
The annotations made by Mrs T on this document are as follows:
“T has clearly stated that he did not assault this pupil and he was trying to restrain her from hitting him as she was threatening to hit him and stab him following a verbal altercation. T denies assaulting Ms Foster and is adamant that Ms Foster physically assaulted him by grabbing him by his tie/collar (at the front) and shoved him out of the classroom shouting at him “so you think you are hard?” and continued to push him around and down the stairs.”
The incident report continues as follows:
“(b) Please explain how allowing this pupil to remain in school will be seriously detrimental to the educational welfare of the pupil or of others in the school.
A school cannot function in a calm and orderly manner unless pupils understand that the authority of teachers must be respected and in particular teachers must never be assaulted. When T first crossed this boundary by “grabbing” a teacher’s arm, he was given a second chance. Now that he has been involved in a much more serious assault, his continued presence in the school represents a risk to the welfare of both teachers and pupils.”
“T and I were told by the head teacher that he had punched Ms Foster and that she had sustained bruises. T has never been a threat to pupils and has constantly complained to myself and teachers about the other children’s constant harassment.”
“Red laser light shone, I stopped class and no one to leave until light was handed in. [J] told [A] was the one, T jumped up and attacked J for telling, grabbing her by the throat. I sent D to get [Ms Foster]. I split them up. Then Ms Foster came in and I explained the situation and T started being rude to Ms Foster and she told him to put his coat and bag down as he insisted on leaving against my wishes. The class remained seated during the break until the laser was handed in. Ms Foster took his hat off and he lunged and attacked Ms Foster pulling her hair and punching her face becoming wild with aggression. Ms Foster had to restrain him by holding him away from her, gripping his jacket. At NO stage did Ms Foster strike T as he was throwing himself around.
The aggression continued for about 5 - 10 minutes until other teachers arrived.
T verbally declared that he did not care at any consequences for his actions and insulted us the whole time.
T taken to boys gym by Ms Kamala and Steve Dockray.”
The annotations on this statement are:
“Did an argument ensue? What was said.........child.
Where did this continuous aggression occur as Mr McManus remained in the classroom.”
“A pupil came to the drama studio at the beginning of break to inform me that Mr McManus needed me in the music studio ASAP. As I entered the studio T and J were shouting at each other both being restrained by their friends. As Mr McManus explained what had happened earlier (a laser had been shone around the room) J informed [Mr McManus] that it was ....T. Then attacked J (for informing). T was rude throughout saying he didn’t care about what Mr McManus had said (he had put on his hat and coat earlier). I told him to take off his hat which he didn’t. I then pulled it off his head. T then grabbed his hat back in the process punching me a few times and continually saying that he did not care. I grabbed hold of his jacket trying to keep him at arms length from me. Throughout I was verbally abused, my hair was pulled and my arm was twisted. Minette Kamala then took me up to the art block.”
“Into the wall - pushed down the stairs - until teacher came to Ms Foster’s aid. Had asked him if he felt if he was hard - advised this is true on 27 - 1 - 00. If he had been attacking Ms Foster - why wasn’t she “helped” by Mr McManus and both restrain him and not pin him to the wall instead of leaving her to deal with the matter on her own - was it felt that Ms Foster would handle the situation on her own.”
“My music teacher said there was a laser. He told us to give it to him. [J - a girl in the class] said that [A - another boy in the class] had it.........I said he didn’t have it then [J] tried to hit me. I stopped her and tried to restrain her. She started crying...... I said if [A] had it people would have seen especially [Z – another girl in the class] as she was as close to him as I was. She said she did not see him with the laser and so did the rest of the class. Then the teacher called Ms Foster another teacher and Ms Foster started throwing me about and into the piano the door and the table when it was [J] that was angry. Then I told her to get off me and to stop strangling me because I couldn’t breathe properly. Then I said why are you doing that if you are trying to do me something, she said I will and threw me down the stairs and pinned me on the wall and she started lying to the teachers saying that she had been punched and she never wanted to be punched again then some teachers called Mr Dockray came talked with me then said to go up to TSU to write a report and go to my next class.
PS also when I was in my lesson both teachers were mocking me imitating me in ridiculous ways to try and make the class laugh.”
“T was referred to me by Wembley High School in December 1999 during his first term at the school as he had been given a fixed term exclusion. Before returning to school, T and his mother came to the school for a meeting with myself.
At that meeting the head teacher made it very clear to T that, in school, there was a need for all pupils to co-operate with teachers so that the safety of all could be ensured. Although his mother supported Mr Shew (the head teacher) in this, T did not seem to understand why this should be the case.
However he was able to return to school for a fresh start.
In the new term, the school concern about T was such that a pastoral support programme was being considered, but this was overtaken by the events that led to T’s permanent exclusion.
It is the view of the LEA that this incident was serious enough to warrant permanent exclusion, following as it did on the similar incident last term. Schools need to consider not only the best interests of each individual child but also the effect of any incident and its consequences on the rest of the school community, both pupils and teachers.”
(a) She was contacted around the time of the first incident.
(b) When making her representations she explained her role was to avoid exclusion but if necessary to assist afterwards, and that she had been working with schools every week for the last two academic years.
(c) During her representations she stated that she was concerned at T’s lack of comprehension of the need to co-operate with teachers and that during the new term (i.e. the January term) there was no visible improvement in fact the contrary and the incident with Ms Foster prevented further action.
(d) She was questioned by Mrs T about a meeting on 9 December concerning the importance of T coping with authority.
(e) In answer to a question from Mrs T she said that she only became involved when it got serious.
(f) In response to a question from Mrs T she said that many kids of all cultures would give rise to insults and in response Mrs T disagreed and made her points as to provocation.
(a) Notes of the evidence of the head teacher as to the incident on 24 January during which he refers to the statements from the teachers and the pupils
(b) Notes of the questioning of the head teacher by Mrs T in which the head teacher accepted that Ms Foster said words to the effect “so you think you are hard?” Later in those notes it is recorded that the head teacher said that he had spoken to Ms Foster that day and she had said that she had used the word “bad” not “hard” and that teachers do remove pupil’s hats.
(c) A note that the head teacher was asked by Mrs T why he had collected only 12 statements from the pupils and replied that there were various reasons and that he couldn’t force the children to write statements; the head teacher also confirmed that J had not written a statement
(d) A note that during this questioning the head teacher was asked how much weight he placed on the pupils’ account and the note of the answer is as follows:
“Weigh all evidence. In this case evidence incriminates T two teachers and several pupils. T denies (as did in previous incident). T first time denied actions. Balanced these previous denials against all other evidence a pattern emerged overwhelming evidence that did. This I mean I take account. Is a case of his word against another. Never just assume each are correct.”
(e) A note that during the presentation of Mrs T’s case she asserted that it was her case that T denied the allegation and that the situation was badly mishandled
(f) A note of the summing up by the headmaster in the following terms:
“Issues: What happened in incident? Maintains that would have to believe Ms Foster and Mr McManus lied and outrageously and that every student lying re both confrontations. Right to listen to evidence of pupils. Balance evidence that serious assault”
(g) A note of what T said to the Appeal Panel in relation to the incident. In particular he said that Mr McManus had picked him up and shaken him. He said that the reason why the other children said he had attacked the girl was because she was screaming and so people must have thought she had been attacked.
“Thank you for attending the hearing of your appeal against T’s exclusion from Wembley High School last night. The Chair of the Appeal Panel has asked me to write to you with the Panel’s decision.
The Panel has decided not to uphold your appeal and to instead endorse T’s permanently exclusion for the following reasons:
The Panel considered first the evidence of what T was alleged to have done and agreed that, on balance of probabilities, he had assaulted J and Ms Foster as alleged. The Panel considered your submission and TL’s evidence that J was the aggressor and that Ms Foster used a colloquial expression which she knew would inflame the situation. The Panel decided that the statements of the teachers and the children present did not support T’s versions of events. The Panel also accepted the head teacher’s evidence of the words used by Ms Foster to T and took the view that the words were not confrontational but were instead meant to calm him down.
The Panel also accepted the head teacher’s evidence regarding the earlier incident involving violence to a teacher and it was agreed that the school have done what could be reasonably be expected, within the timescale, in response to T’s behaviour.
The Panel then went on to consider whether, taking into account all the relevant factors permanent exclusion was a reasonable response to T’s conduct. It was felt that the assaults on 24 January amounted to a serious incident involving violence for which a permanent exclusion could be given without the school being expected to have utilised the established range of alternative strategies, especially within such a short period of time. The Panel accepted the head teacher’s submission that the safety of other pupils and staff in the school required a clear message to be given about the unacceptability of violent behaviour.
The Panel also considered whether the exclusion was used in accordance with the Secretary of State’s Guidance. It was noted that the head teacher’s exclusion letter did not include a number of matters referred to in the guidance but the Panel felt these omissions were nor serious enough to affect their decision to endorse T’s permanent exclusion.
Taking into account all the above matters the Panel concluded that permanent exclusion is the most appropriate sanction. I am sorry that the Panel did not uphold your appeal however LEA officers will contact you to make arrangements for the continuation of T’s education.”
Re T : Conclusion
“1. This is an application for judicial review of the decision of the Oxfordshire County Council Exclusion Appeals Panel delivered by a letter dated 30 August last year.
2. The case concerns a boy aged 13 who was excluded from school on 9 June 2000. The school is a mainstream secondary school maintained by the LEA in the county of Oxford.
3. At the time of his exclusion, because of learning difficulties, an assessment of the boy’s special educational needs was being undertaken by the LEA under the provisions of section 323 of the Education Act 1996, with the possibility of him being subject to a statement of special educational need under s. 324 of that Act. No statement has yet been made. The process is still continuing.
4. On 12 April 2000 the boy was given a warning as to his conduct in a letter written by the school to his mother in the following terms:
“I am writing to inform you that having investigated the incident involving [the boy] and a year 8 student, I can confirm that the boy did spray the student. A fact which [the boy] has denied. Consequently [the boy], if in school, would serve a days internal exclusion for his inappropriate actions. Under the circumstances we suggest that rather than [the boy] coming into school on Thursday (our last day) that he remain at home.
It has also come to light that [the boy] has been seen by students in school with an item which has been described to us as a knife. Again on making further enquiries we think this item is a replica or a toy. Can I urge you to ensure that [the boy] does not bring such items into school. I am sure you will appreciate that if [the boy] were to use this item in a threatening way the school would have to consider permanent exclusion.
Finally, both of these incidents will be recorded on the log which Mrs Adamson is maintaining and of which you will be receiving an updated copy.”
5. That led to some dissent by the boy’s mother, who communicated by email to the headmaster, who wrote by return of email on 2 May:
“I am sorry that you were offended by the second paragraph of Mrs Roch’s letter [the one I have just read], but cannot myself see that it is inflammatory. Mrs Roch was reporting to you information which she had received which causes us concern and which we take seriously. We assumed that you would share our concern that [the boy] might have brought a knife (real or not) into school.
Since it is possible that the information is incorrect I will arrange for reference to it on the incident report to be deleted.
I am sure that you will share our concern that, true or not, pupils have reported this about [the boy].
I believe that the best way forward is for us to draw a line under the incident that occurred at the end of last term and attempt to make a new start. We will not therefore internally exclude [the boy] on his return.”
6. However, on 9 June the exclusion which is the subject matter of the present application took place. The incident is described to have been one in which the boy threatened another pupil with a replica gun. The boy’s account was that he had brought the replica into the school because another pupil had offered to buy it from him but had denied threatening anybody with it.
7. As a matter of history, the appeal was due to have been heard on 27 July 2000. The fact that the appeal was not heard on that day provides a twist to the matter which will have to receive consideration later in this judgment. It was because the head teacher was unable to attend the proceedings of the appeal panel on 27 July that the hearing was postponed until 30 August.”
The relevance of paragraph 7 of the judgment of Turner J is that he found that the relevant amendments to the Guidance given by the Secretary of State pursuant to s. 68(2) of the Schools Standards and Framework Act 1998 became effective from 1 August 2000. At and before the hearing before the Appeal Panel which took place on 30 August 2000 issues were raised on behalf of P as to whether the amendments applied. They are not pursued in front of us.
(a) That the headteacher took his decision before he had considered all the evidence and that the incomplete evidence on which he based his decision was both flimsy and contradictory. That assertion was particularised in the submissions. Those particulars contained points that (i) the day prior to the incident P had been bullied and harassed by three older boys, (ii) P had brought the BB gun into school in order to sell it, (iii) the BB gun was broken, was taped together and had never been fired and indeed did not fire plastic balls and (iv) there were discrepancies in the accounts given by the other pupils.
(b) That the head teacher’s decision to exclude P was not in accordance with clearly stated provisions of the school’s published discipline policy, that Mr and Mrs P did not believe that P seriously breached the school’s behaviour or anti-bullying policy and that they did not understand how the head defined a serious breach of behaviour policy given that the school’s policy is a list of behaviours with no indication of penalties.
(c) An assertion that permanent exclusion was too harsh a penalty, and
(d) An assertion that the school had failed in its statutory responsibilities regarding P’s special educational needs. The particulars given of this assertion included a point that a consultant child and adolescent psychiatrist had advised the school that P’s specific learning difficulties were contributing towards his behavioural difficulties.
This is a short summary of the able submissions made by Mr and Mrs P but it gives the flavour of them.
(a) at the start of the appeal she informed the Appeal Panel that the use of the new guidance may be unlawful but the Clerk replied that she had taken advice and wished to proceed under the new guidance,
(b) Mrs P asserted that she considered the school policies to be unclear, the behaviour policy, for example, was a list of aspirations such as “be smart” and she posed the question whether this meant be smartly dressed or quick witted. She also pointed out that neither policy gave sanctions and asserted that the head teacher said that this was why a new discipline policy was being written,
(c) there was clearly doubt over whether the Panel could proceed without a copy of the discipline policy and the head teacher had said that P had broken the anti-bullying policy which stated that “non verbal gestures which are meant to threaten and intimidate” is bullying, but that the policy made no mention of sanctions, and
(d) later the chair of the Panel stated that a letter of 12 April to Mrs P from the Deputy Head made the school discipline policy clear and Mrs P’s response had been that although it was a clear statement it did not constitute a discipline policy as it was not in force throughout the school, that she had objected to the letter and that the reason for writing it had been accepted by the head teacher as unfounded. Mrs P also referred to the offer from the head teacher to remove reference from P’s file to the incident that gave rise to the letter.
“The Appeal Panel noted your point that, in your view, the amendments contained in DFEE circular 10/99 are as of 1 September 2000. However, the Appeal Panel followed the guidance as amended of 1 August 2000.
The Appeal Panel reached their decision having taken into account all the representations made to them both orally and in writing by yourself; Mr Lockyear, head teacher at G’s; and Mr Hayward, a nominated member of the Governing Bodies Discipline Committee.
The Appeal Panel was satisfied by the evidence given that on 9 June 2000 P took a gun to school and used it to threaten a pupil.
The Appeal Panel accepted that P’s behaviour did constitute serious breaches of the G school behaviour policy and established that a letter from G School to you dated 12 April 2000, made it clear that bringing an item into the school and using it in a threatening way would lead to permanent exclusion being considered.
The Appeal Panel also established that a range of strategies had been tried.
The Appeal Panel accepted that the other pupils involved in the incident were dealt with as described by Mr Lockyear, in accordance with school policy where a first offence takes place.
The Appeal Panel found that there was sufficient evidence that, by allowing P to remain at the G school he would seriously harm the education of other pupils.
The Appeal Panel noted that permanent exclusion had been used in accordance with the Secretary of State’s guidelines, DFEE circular 10/99.
The Appeal Panel, having considered all relevant factors, found that permanent exclusion was a reasonable response to P’s conduct and upheld the decision to permanently exclude P from the G School and, therefore refused your appeal.
You are advised to contact Mr Pount, the Education Department’s Officer in this case, as soon as possible about the arrangements for P’s continued education.”
(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.
(3) A pupil may not be excluded from a maintained school (whether by suspension, expulsion or otherwise) except by the head teacher in accordance with this section.
(3) Subsection (4) applies where the head teacher –
(a) excludes any pupils in circumstances where the pupil would, as a result of the exclusion –
(i) be excluded from the school for a total of more than five school days in any one term; or
(ii) lose an opportunity to take any public examination,
(b) excludes a pupil permanently, or
(c) decides that any exclusion of a pupil should be
(4) Where this subsection applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters –
(a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or
(b) his decision that any exclusion of a pupil for a fixed period should be made permanent,
and (in either case) of the reasons for it.
(5) In this section and in sections 66 and 67 ‘the relevant person’ means –
(a) in relation to a pupil under the age of 18, a parent of his;
(b) in relation to a pupil who has attained that age, the pupil
(6) Where regulations under paragraph 4 of Schedule 11 require the governing body of a maintained school to establish a discipline committee, references in this section and section 66 to 68 to the governing body of such a school shall be construed as references to their discipline committee.
66. Functions of governing body in relation to excluded pupils
(1) Subsections (2) to (6) apply where the governing body of a maintained school are informed under section 65 (4) of any exclusion or decision to which that provision applies.
(2) The governing body shall in any such case –
(a) consider the circumstances in which the pupil was excluded;
(b) consider any representations about the exclusion made to the governing body –
(i) by the relevant person in pursuance of section 65 (1) (c) or (2) (b), or
(ii) by the local education authority;
(c) allow each of the following, namely –
(i) the relevant person, and
(ii) an officer of the local education authority nominated by the authority,
to attend a meeting of the governing body and to make oral representations about the exclusion; and
(d) consider any oral representations so made.
(4) If the governing body decide that the pupil should be re-instated, they shall forthwith –
(a) give the appropriate direction to the head teacher, and
(b) inform the relevant person and the local education authority of their decision.
(5) The head teacher shall comply with any direction of the governing body for the re-instatement of a pupil who has been excluded from the school.
(6) If the governing body decide that the pupil should not be re-instated, they shall forthwith –
(a) inform the relevant person, the head teacher and the local education authority of their decision and
(b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters –
(i) the reasons for the decision,
(ii) his right to appeal against the decision,
(iii) the person to whom he should give any notice of appeal,
(iv) that any notice of appeal must contain the grounds of appeal, and
(v) the last date on which an appeal may be made.
(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under section 66 not to re-instate a pupil who has been permanently excluded from a school maintained by the authority.
(2) Schedule 18 has effect in relation to the making and hearing of appeals pursuant to arrangements made under subsection (1); and in subsections (3) and (4) ‘appeal panel’ means an appeal panel constituted in accordance with paragraph 2 of that Schedule.
(3) The decision of an appeal panel on an appeal pursuant to arrangements made under subsection (1) shall be binding on the relevant person, the governing body, the head teacher and the local education authority.
(1) This section applies to any functions of –
(a) the head teacher or the governing body of a maintained school,
(b) a local education authority, or
(c) an appeal panel constituted in accordance with paragraph 2 of Schedule 18,
conferred by or under any of sections 64 to 67 and Schedule 18.
(2) In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.
2(2) An appeal panel shall consist of three or five members appointed by the authority from –
(a) persons who are eligible to be lay members;
(b) persons who have experience in education, are acquainted with educational conditions in the area of the authority or are parents of registered pupils at a school.
(3) Of the members of an appeal panel-
(a) at least one must be a person who is eligible to be a lay member and is appointed as such; and
(b) at least one must be a person falling within subparagraph (2)(b).
(4) For the purposes of this paragraph a person is eligible to be a lay member if he is a person without personal experience in the management of any school or the provision of education in any school...
(7) The following persons are disqualified for membership of an appeal panel-
(a) any member of the Authority or of the governing body of the school in question;
(b) any person employed by the authority or the governing body, other than a person employed as a teacher;
(c) any person who has, or at any time has had, any connection with –
(i) the authority or the school, or with any person within paragraph (b) or,
(ii) the pupil in question or the incident leading to his exclusion of a kind which might reasonably be taken to raise doubts about his ability to act impartially in relation to the authority, the school or the pupil in question.
[There are provisions for the LEA to pay allowances for members, to fix the dates of the hearing of an appeal.]
10(1) The appeal panel shall give the relevant person an opportunity of appearing and making oral representations, and shall allow him to be represented or to be accompanied by a friend.
(2) The panel shall also allow –
(a) the head teacher to make written representations and to appear and make oral representations
(b) the Local Education Authority and the governing body to make written representations,
(c) an officer of the authority nominated by the authority and a governor nominated by the governing body, to appear and oral representations,
(d) the governing body to be represented.
15(1). Subject to paragraphs 7 – 14, all matters relating to the procedure on appeals shall be determined by the Local Education Authority.
18. The Secretary of State may by order make such amendments of this Schedule as he considers expedient.
Circular 10/99 contained the following.
Chapter 6: The use of exclusion
Head teachers, governors, LEAs and exclusion appeal panel members must by law have regard to this guidance when deciding:
• whether to exclude a pupil, for a fixed period or permanently,
• the length of the exclusion,
• (where applicable) whether to direct the head teacher to re-instate and excluded pupil.
This section must be read alongside previous sections covering steps that schools should take before resorting to exclusion. See also Annex D which sets out the procedures which must be followed when exclusion takes place.
A decision to exclude a child for a fixed period or permanently should be taken only:
• in response to serious breaches of a school’s discipline policy;
• once a range of alternative strategies … have been tried and have failed; and
• if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school
In Annex D to that document headed ‘Procedures for excluding a pupil’ we find the following guidance in relation to meetings of the Discipline Committee of the Governing Body.
12. If the pupil is still excluded when the meeting takes place, the Discipline Committee should decide whether to direct re-instatement. In reaching their decision the Committee should:
On 21.1.2000 the DfEE amended this guidance. It caused a letter to be written to “Chairs of Governors and Head Teachers of Maintained Schools in England” which contained the following:-
Following the publication of Secretary of State’s guidance Social Inclusion : Pupil Support … in July 1999, we have frequently been asked about the circumstances in which a pupil may be excluded from school … where the school has not previously tried a range of alternative strategies as set out in the document. Whilst paragraph 6.6. of Chapter 6 (The Use of exclusion) states that children should not “normally” be excluded permanently for a ‘one-off’ or first offence, the conditions for all exclusions set out in the preamble (and repeated at paragraph 6.2) do not contain the word “normally” and do not refer to any exceptions. The Secretary of State acknowledges that there may be circumstances where for a serious offence, for example involving violence, it is not appropriate to apply the ‘prior alternative strategy’ test. The relevant text of the preamble to Chapter 6 and of paragraph 6.2 should therefore be amended to read as follows:
“A decision to exclude a child should be taken only:
- in response to serious breaches of a school’s policy; and
- if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
Before excluding a child, in most cases a range of alternative strategies such as those included in Section 4 should be tried. This is not meant to prevent immediate action to protect pupils and staff, including fixed period exclusion. A permanent exclusion can be given for a first offence, for example involving violence, but only when the head teacher has had further opportunity (not in the ‘heat of the moment’) to consider the incident in question.”
The expectation (in paragraph 6.6) that a head teacher would not normally permanently exclude a pupil for a first offence would not rule out permanent exclusion for a first offence, for example involving violence. These judgments are rightly ones for the head teacher but permanent exclusion should continue to be used only as a last resort. To reflect this, the third bullet point in paragraph 12 of Annex D of the guidance should read “for permanent exclusion, the Discipline Committee should normally satisfy itself, etc”. We have today amended the text of the guidance on the Department’s website.
On 4.8.200 the DfEE replaced the Guidance on exclusion Appeal Panels which had been contained in the circular with a document of which the following are the paragraphs most presently relevant.
Procedure at the hearing
14. It is for the Appeal Panel to decide how to conduct the proceedings. The Panel should do everything possible to make them informal so that all parties can present their cases effectively. The appeal hearing should not be held at the excluding school. Tape recording the proceedings should be avoided unless there is a good reason for it and all parties agree. Appeals must be heard in private except where the LEA direct otherwise. However, a member of the Council on Tribunals may attend the meeting of an Appeal Panel as an observer.
15. The remit of the Appeal Panel is to consider whether the pupil should be re-instated. They may decide that it is inappropriate to continue with the hearing if it became clear that the parent did not wish the pupil to be re-instated, for example where the pupil has been admitted to another school. In such cases other remedies available to the parent may be a more appropriate way of setting the record straight (see paragraph 34 below).
16. In considering an appeal the Panel should decide whether the pupil actually did what they are accused of doing. If there is more than one alleged incident of misconduct, the Panel should decide on each incident. If satisfied on the balance of probabilities that the pupil did what they are alleged to have done, then the Panel should decide whether permanent exclusion is a reasonable response to that conduct. Relevant factors that must be taken into account include:
Whether permanent exclusion was used in accordance with the Secretary of State’s Guidance – where there is doubt the Appeal Panel should direct re-instatement;
the broader interests of other pupils and staff in the school, as well as those if the excluded pupil;
the school’s published discipline policy;
the fairness of the permanent exclusion in relation to the sanctions imposed on any other pupils involved.
17. Where a head teacher has excluded a pupil in accordance with clearly stated provisions in the school’s published discipline policy, for example zero tolerance of drug dealing, then the appeal panel should not normally direct re-instatement.
18. The school is responsible for promoting good behaviour and discipline on the part of its pupils and for securing an orderly and safe learning environment for its pupils and staff. In deciding whether to direct re-instatement, therefore, the panel must consider the impact that it may have on other members of the school. The Secretary of State would normally regard it as inappropriate to re-instate a pupil who has been permanently excluded in circumstances involving any of the following:-
Serious actual or threatened violence against another pupil or member of staff; or
sexual abuse; or
presenting a significant risk to the health and safety of other pupils by selling illegal drugs; or
persistent and malicious disruptive behaviour, including open defiance or refusal to conform with agreed school policies on, for example, discipline or dress code.
19. To reach a decision, the panel may need to hear evidence from those directly or indirectly involved, including the pupil and any alleged victim. The Discipline Committee may not introduce new reasons for the exclusion. However, the parent and the LEA may put forward new information that was previously unavailable. If this happens, the Discipline Committee should be given an opportunity to respond.
Order of hearing
20. The order of hearing should be notified in advance to the parties. The chair should order proceedings and lead the panel in establishing the relevant facts. Following introductions, the clerk should explain the order in which the parties entitled to be heard will state their case and that there will be an opportunity for questioning by the other parties after each presentation. The panel members may also ask questions to clarify an issue or to elicit more information. If possible, questions from the panel should be taken at the end of each party’s statement and following questioning by the other parties.
21. If the appeal panel wish to vary the notified procedure, they should only do so after hearing the views of all the parties present and entitled to make representations.
Evidence and witnesses
26. The appeal panel cannot compel witnesses to attend. The Discipline Committee may wish to call witnesses who saw the incident or behaviour which gave rise to the exclusion. These may include any alleged victim or any teacher (other than the head teacher) who investigated the incident and interviewed pupils.
27. Where adult witnesses do not appear in person, the panel must rely on their written statements. In the case of witnesses who are pupils of the school, it will generally be appropriate for the panel to rely on their written statement. Pupils may appear as witnesses if they do so voluntarily and with their parent’s consent. All written witness statements must be attributed and signed, unless the school has good reason to wish to protect the anonymity of the pupils. Appeal panels should be sensitive to the needs of child witnesses to ensure that the child’s view is properly heard. The general principle remains that someone accused of something is entitled to know the substance and the source of the accusation.
After the hearing
32. The panel operates independently of the LEA and the school Governing Body. The decision of the panel is binding on the parent of the excluded pupil, the Governing Body and the local authority. The appeal panel must let all parties know its decision by the end of the second school day after the appeal hearing. Where a hearing is held on the last day of a term or outside term-time, the panel should try to notify all parties by the end of the second working day after the hearing has finished.
34. As the remit of the appeal panel does not include ‘clearing the pupil’s name’, details of exclusion may not lawfully be deleted from the pupil record, if exclusion is a matter of fact. But the Governing Body must comply with any parental request to append their appeal statement to the pupil’s record. It will be for the Governing Body to decide what details of the exclusion are included in the pupil’s school record: copies of the principal correspondence might be included and possibly the minutes of the Discipline Committee and appeal panel hearings, if the Discipline Committee and appeal panel respectively agree to this.