Provision of ‘Exclusion Packs’
By Sean O’Neill
For over ten years, the School Exclusion Project has provided parents and guardians with free legal representation in challenging school exclusions. We exist because all parents and guardians should be able to realise their statutory right to representation at exclusion hearings. While the exclusion process has changed in many ways over the years, one issue unfortunately continues to cause difficulties for our clients and representatives at governing board level. This is the question of: when should representatives be able to see all the ‘written evidence and information’ pertaining to the exclusion?
This information is commonly called the Exclusion Pack. That pack should include all the relevant evidence which led to the permanent exclusion. This may include witness statements, incident reports, SEN records, and historic disciplinary reports.
The guidance to be followed
Our starting point is paragraph 102 of the 2022 Guidance. Parents and, where requested, a representative or friend, ‘must be invited to a meeting of the governing board and allowed to make representations or share information’. The governing board has a ‘duty to consider’ those representations. At paragraph 113, it is again made clear that the governing board must consider any representations by or on behalf of parents.
In order to make proper representations, parents and their representatives will always require prompt sight of the evidence used to make the exclusion. It is implausible to suggest that parents and representatives could make proper representations without that evidence. Until the board makes this information available to them, it is highly likely that the parent will have seen nothing about the exclusion in writing save the headteacher letter required by paragraph 63, sent to the parent soon after exclusion. These letters typically give a very short description of the reasons for the exclusion: for example, ‘Reason given: Physical altercation with other pupils’. This will clearly be no help in helping a parent prepare representations.
The issue
Confusion typically arises owing to the third bullet point of paragraph 110 in the Guidance, which states that the governing board should ‘where possible, circulate any written evidence and information, including a list of those who will be present, to all parties at least five school days in advance of the meeting’ (emphasis added).
The guidance uses a phrase that boards should pay close attention to: ‘at least’. The words ‘at least’ mean that five school days is a minimum. It is not a target, or the standard period, it is the absolute minimum tolerable under the guidance. The guidance is therefore that parents should be given far more time than this, unless there is a good reason why the Exclusion Pack could not be circulated earlier.
While most boards understand a parent’s need to see all relevant information promptly, some unfortunately cite to interpret this paragraph as reason to hold the Pack back from parents and representatives until five school days before the meeting. This is not a good reason of the kind envisioned by the guidance: it is a bad reason, because the board is thereby attempting to gain an illegitimate advantage by delaying the provision of the pack. By this point the parent/representative will have already sent in written submissions, regrettably without a review of all the relevant information.
Procedural unfairness
The head teacher, on the other hand, will obviously have sight of all the evidence for the full period between exclusion and hearing, which can be up to 15 days. In the event where evidence only then arrives to the parent and/or representative five days before the meeting, this is a clear instance of procedural unfairness, where parent and representative are deprived of properly-argued submissions. For example, the headteacher might be able to justify the exclusion using a key witness statement that the parent/representative has not seen. That witness statement might materially affect the parent’s written representations, leaving them outdated by the time the meeting takes place, with the parent/representative able only to respond to them orally.
The decision of the House of Lords in Ridge v Baldwin [1964] states that those acting in a quasi-judicial, decision-making role must abide by the principles of natural justice: ‘the body with the power to decide cannot lawfully proceed to make a decision until it has afforded the person affected a proper opportunity to state his case’. The governing board, or its disciplinary subcommittee, are clearly an example of such a body. Should the board depart from these principles, this will plainly be a matter to be raised at Independent Review Panel (IRP). Within the guidance, the IRP are asked to apply the test of procedural impropriety in their review of any decision to exclude: ‘was the governing board’s consideration so procedurally unfair that justice was clearly not done’? Where evidence has deliberately been available to only one party for any period while preparing representations, justice will clearly not have been done.
A better view is therefore that the final pack, inclusive of the written submissions of parents/representatives, should be circulated where possible within the 5-day limit stipulated in paragraph 110 above. This way, all parties will have considered each others’ perspectives and made written submissions in full view of all the evidence to be tabled at the hearing, with no party on the backfoot on the day.
Prompt sharing: better for everyone
Clearly, governing boards and clerks who do not send the Exclusion Pack to parents/representatives until 5 days before a hearing are in contravention of the only sound interpretation of the Guidance, and of the principles of natural justice.
On a more collaborative note, it is also simply more convenient for all parties to receive evidence promptly. Should a parent process new relevant evidence late in the day which materially changes their representations, this increases the likelihood of a parent requesting adjournment in favour of ‘a time that suits all relevant parties’ . School exclusion hearings are already a time-consuming multi-stakeholder process, and in the interests of all parties, rescheduling them should be avoided if possible. It is obviously not sensible for a Board (or clerk, or headteacher) to waste the time of their governors / trustees by withholding the Exclusion Pack, which causes an adjournment of the hearing, resulting in inconvenience for all concerned.
Conclusion
It is better for all parties if all evidence is properly shared in a timely manner. Boards and clerks must never cite paragraph 110 as a reason to deprive parents of a proper, thorough review of the decision to exclude their child. All parties benefit from prompt information-sharing, for both legal and practical reasons. When headteachers exclude, they must ensure that relevant documentation is readily-available for parents as soon as possible. Otherwise, administrative delays could amount to procedural unfairness and avoidable inefficiency.
Note: The process for permanent exclusion is subject to the legislation which governs the permanent exclusion of pupils from their schools, namely the Education Act 2002 as amended by the Education Act 2011, and the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. The regulatory framework for permanent exclusions is most clearly explained by the government’s 2022 Guidance.
