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Excluding a student ? That’ll be £4,000 please!

On 1st September 2012 new legislation comes into force which will impact on how schools, including academies, can tackle the difficult issue of student exclusion. In theory the changes will give heads and governing bodies more control over their student body, allowing them the final say on who is permanently excluded. However, with the introduction of a new financial ‘penalty’ system, it appears that navigating the way through the minefield of student discipline may be a more costly exercise than ever.

The new law is contained within section 4 of the Education Act 2011, which will insert a new section 51A into the Education Act 2002. This is backed up by the new School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012.

The new legislation replaces Independent Appeal Panels with Independent Review Panels (‘IRP’) and alters the powers and responsibilities that they have when considering exclusion appeals. A key difference is that IRPs will not be able to compel governing bodies to reinstate a pupil following a successful appeal. An IRP will have three choices when it considers whether a governing body was right to exclude a student.  It can –
(1) Uphold the exclusion decision,
(2) Recommend that the governing body reconsider, or
(3) Quash the decision and direct that the governing body consider the matter again.

An IRP can only use option 3 if it considers the decision to be flawed. Even in those circumstances, a school will not be compelled to take the student back. They will however have to pay for the privilege of standing by their decision.

The Regulations state that if, when a school is directed to reconsider its decision (i.e. option 3), it fails to take steps to do this within 10 days of receiving the IRP’s notice, the IRP must decree that £4,000.00 be paid to the Local Authority, in addition to any funding that would usually follow an excluded pupil.

In the case of maintained schools the £4,000.00 will be taken directly from the school’s budget by the Local Authority. In the case of an academy payment must be made to the Local Authority in which the academy is located. Such a payment should be made within 28 days of notification being received from the IRP. The Local Authority is responsible for overseeing the collection of this money, however if an academy fails to pay Local Authorities are being advised to inform the Education Funding Agency. If the excluded student is found another school place, the Local Authority may (if it chooses) pass the £4,000.00 on to the new education provider.

It seems therefore that academies are left with a fairly mixed message with regards to exclusions. Although academies were promised large scale autonomy these new Regulations apply directly to them and override the terms of individual funding agreements. This means that it is not possible to opt out of these changes.  Although the government promised head teachers and governing bodies more control over exclusions, this payment system seems to serve as a ‘penalty’ to those who exert that control.

Alternatively, those representing vulnerable students may argue that these changes give heads and governing bodies too much power, as the £4,000.00 is only payable where a decision to exclude has been quashed, and that £4,000.00 may be viewed as a price worth paying to get rid of a difficult student.

The £4,000.00 penalty is just part of wide-ranging changes that will be brought in by section 4 of the Education Act 2011. If you require further advice or assistance in relation to the changes, or student discipline issues in general, please do not hesitate to contact Burnetts' dispute resolution team on 01228 552222.

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Published: Wednesday 5th September 2012
Categorised: Commercial Dispute Resolution, Education

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