This article was first published in the Local Government Lawyer.
The Children’s Commissioner for England recently published a major report on school exclusions. Alexander Campbell reviews the key findings.
Current policy and practice in relation to school exclusions may breach domestic, European and international law. Such is the finding of the first formal inquiry by the Children’s Commissioner for England into school exclusions in England.
The report – entitled They Never Give Up On You – finds serious violations of domestic and international law in the way that some schools exclude pupils. It finds that the current system of school exclusions in England breaches the UN Convention on the Rights of the Child (specifically Article 3, which requires that the interests of a child be the primary consideration in decisions affecting him/her, and Article 12 which requires children's views to be taken into account in decisions which affect them). It further finds practices which violate the European Convention on Human Rights and the Equality Act 2010.
The report finds huge disparities in the way that different schools in England approach and implement exclusions, with children from different backgrounds and with different circumstances having massively divergent prospects of being excluded.
To illustrate the latter point, take two hypothetical school students in England: Jack and Jill. Jack is of black Caribbean background. He has special educational needs and is assessed at School Action Plus. He is from a low-income household and receives free school meals. Jill is of white British background. She has no special educational needs and lives in a more affluent household.
The Children’s Commissioner’s Inquiry found that Jack is 168 times more likely than Jill to be permanently excluded from school before the age of 16 and he is 41 times more likely to be excluded for a fixed term. By virtue of being male, black Caribbean, a pupil with SEN and from a low-income home, Jack faces far higher prospects of being excluded from school than Jill.
The Inquiry found that more than two-thirds of all pupils who are permanently excluded in England have some form of identified SEN. It found that children from Irish traveller, Gypsy & Roma traveller and black Caribbean backgrounds are significantly more likely to face exclusion than their counterparts from other ethnic groups. It further found that 78% of pupils permanently excluded in 2009-10 were male and that being in receipt of free school meals makes a pupil four times more likely to be permanently excluded.
It is therefore unsurprising that the report suggests that current policy and practice on school exclusions may violate the public sector equality duty which is imposed on public bodies by section 149 of the Equality Act 2010 (which entered into force on 5 April 2011).
“Unofficial” (or “informal”) exclusions occur when a school requires a pupil to leave the premises but does not record this as an exclusion. Examples which the Inquiry found included pupils being sent home to “cool off”, pupils being coerced into changing schools and, in one extreme example, a headteacher admitted that he had asked parents to keep their children at home from Christmas until the end of the academic year under threat that they would otherwise face permanent exclusion.
Such conduct is already unlawful. The Inquiry found that in order to reduce it, the Government should draft mandatory standard wording for documentation to be sent to parents in the event of their child’s exclusion which clearly informs them of the reason for the exclusion and the child’s rights in relation to any exclusion.
The Inquiry further recommends that any school found to be behaving unlawfully should automatically receive an Ofsted grading of “Inadequate”.
Ofsted and school exclusions
Evidence shows that schools which manage behaviour well have low rates of exclusions. The Inquiry therefore recommends that there be a presumption against Ofsted awarding grades of “Outstanding” or “Good” to schools which have a high rate of exclusions.
Under the Education Act 2011, the Secretary of State for Education has the power to exempt some schools from the requirement for regular Ofsted inspections. Currently schools which received an “Outstanding” grade at their last inspection are to be exempt.
The Inquiry recommends that in relation to inspection-exempt schools, Ofsted should nonetheless continue to monitor the number of exclusions at that school, the number of complaints made regarding exclusions at that school and the number of successful appeals against exclusions. Where the result of this monitoring gives cause for concern, the Inquiry recommends that Ofsted have the power to carry out a fresh inspection of the school.
Appeals against exclusions
The Education Act 2011 introduced a system of Independent Review Panels. These panels – unlike Independent Appeal Panels – do not have the power to insist that a pupil be reinstated. The Inquiry, along with Parliament’s Joint Committee on Human Rights, finds that this new system is in breach of Article 6 of the European Convention on Human Rights. The Inquiry therefore recommends that the Act be amended at the earliest opportunity to reinstate Independent Appeal Panels.
The basis for an exclusion
One of the problems which the Inquiry has uncovered is the inconsistent approaches of different schools and local authorities around England. It is certainly far from desirable for a child's chances of exclusion to be dependent on the particular school they happen to attend.
In order to combat this inconsistency the Inquiry recommends that the Department for Education should issue statutory guidance including certain principles which should be applied by all schools in relation to exclusions. These principles include:
That exclusion should only be a last resort and should only be used as a first response in exceptional circumstances (for instance in cases of assault).
That it is never appropriate to exclude a child for minor infringements of school rules such as violations of the school dress code.
The Inquiry recommends that there be a presumption against permanent exclusions from primary schools and that every exclusion from primary school be automatically subject to an independent review regardless of whether the child's parents request one. It recommends an outright ban on permanent exclusions of children in Reception or at Key Stage 1.
The Inquiry further recommends that schools should not be able unilaterally to exclude children with special educational needs on a permanent basis. The Inquiry recommends that where a school proposes to exclude a child with SEN, then that proposal should trigger a review of the child's statement which would involve a decision as to whether a permanent exclusion is appropriate.
Avoiding exclusions altogether
One of the factors which encouraged the Children's Commissioner to conduct its inquiry into school exclusions in England is the fact that whilst exclusion is a widely used sanction in English schools, it is little used in much of mainland Europe.
With that in mind, the Inquiry was keen to consider ways of preventing exclusions altogether and it has made a number of recommendations in that regard.
The Inquiry found that effective teaching is the key driver of good behaviour amongst pupils. Where approaches to discipline and behaviour are applied consistently and where a school has strong leadership, pupils are far more likely to respect and adopt the ethos of the school.
The higher rates of exclusion for children of minority ethnicities, lower-income backgrounds and children with SEN highlights the need for greater awareness amongst teaching staff of how to teach the full range of children in English schools. The Inquiry recommends that all newly qualified teachers be properly prepared to teach children with the full range of SEN. It further recommends that all trainee teachers should study child development and socio-psychological matters in order to equip them better to teach the diverse range of children in English schools.
The Inquiry found that pupils displaying challenging behaviour should have as much continuity in their education as possible. Where it is necessary to separate them from their peers, they should continue to study the same curriculum and should have regular contact with their usual class teachers and their peers. Counselling by trained staff and support which is tailor-made to individual pupils (rather than a "one size fits all" approach) also help control disruptive behaviour before exclusion becomes a necessity.
Many schools operate "managed moves" as an alternative to exclusions. This involves the child being transferred to a different school by agreement between the heads of the two schools involved. Sometimes these managed moves are a matter of informal negotiation between headteachers; in other cases a formal and closely monitored process is used. The Inquiry found that the latter approach shows much better results.
In late 2011 the Department for Education announced a pilot programme in six local authorities. Under this programme, funding for managing provision for excluded children is devolved directly to schools. Schools which exclude will retain responsibility for ensuring that the child concerned continues to receive education beyond the fifth day of any exclusion and that child's performance will count towards the school's overall performance data. The Inquiry endorsed this approach as being based on "sound" principles and stated, "The model of funding delegation and school accountability used in the pilots encourages schools to actin ways associated with the good practice evident in Local Authorities which already have low exclusion rates."
The future for school exclusions
The Children's Commissioner's report marks only the first year of an ongoing inquiry. With the Inquiry having already found worrying evidence that current practice in England is not only inappropriate but unlawful, the case for change is already clearly made out.
The Children's Commissioner will publish a further report on school exclusions in March 2013 to assess progress towards implementing the first report's recommendations as well as to announce the findings from the second year's work. Professionals involved in the education of young people will be watching closely to see whether the worrying trends uncovered by the most recent report can be addressed before they begin to impact upon another generation of young people.
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