Home >> Publications >> Annual and Special Reports >> School Admission and Exclusion Appeal Panels >> Part 3: Exclusion Appeal Panels

Part 3: Exclusion Appeal Panels

Constitution of Exclusion Appeal Panels

3.1 The School Standards and Framework Act 1998 established the current exclusion appeal panels under Section 67 of, and Schedule 18 to, the Act [Schedule 76 of, and schedule 18 to, the 1998 Act were repealed with effect from 20/01/03 and replaced by provisions in Section 52 of the Education Act 2002, S.I.2002 No.3178 and S.I.2002 No.3179]. Schedule 18 prescribes the constitution of the panels as consisting of three or five members appointed by the LEA, including at least one person from each of the following categories:

persons who are eligible to be lay members, that is a person without personal experience in the management of any school or the provision of education in any school;
persons who have experience in education, are acquainted with educational conditions in the local authority area or who are parents of registered pupils at a school.

3.2 The following persons are excluded from membership of the panels:

any member of the authority or of the governing body of the school in question; or
any person employed by the authority or governing body, otherwise than as a teacher; or
any person with any connection with the authority or the school; or with any person employed by the authority or governing body; or with the pupil who has been excluded; or who has any connection of a kind which might raise any doubts as to the person's ability to act impartially.

3.3 In discharging their statutory functions exclusion appeal panels are required to have regard to guidance issued by the Secretary of State, currently contained in Circular 10/99 Social Inclusion: Pupil Support (as revised).

Independence openness, fairness and impartiality

3.4 The Education Act 2002 provides for the procedural rules for exclusion panels to be contained in regulations, rather than, as at present, in the Schedule to the 1998 Act. Whilst we were pleased at this new development, which we had urged during the legislative passage of the 1998 Act, we were concerned to note in the accompanying Explanatory Notes that the Department intended to alter the constitution of the panels.

3.5 The Department issued a consultation paper last year outlining policy proposals in respect of exclusion appeal panels. This included a proposal to alter the composition of the panels so that, whilst they were intended to remain independent, they would consist predominantly of people with direct experience of classroom management. We objected strongly to this in our response to the consultation on the ground that it would shift the balance of the panels too far in favour of schools, thereby fundamentally altering the panels' actual and perceived independence. In our view, exclusion panels are already heavily weighted in favour of schools the panels are run by the LEA; they may include serving or former teachers; hearings often take place in LEA premises; and the clerk is a member of LEA staff. Teacher and school governor members of the current panels are already inclined to use their knowledge of local conditions without giving the parties to an appeal any chance to comment on these matters; no doubt, because they believe that they have been recruited for their specialist knowledge and because they are often not properly trained in the basics of a fair hearing.

3.6 In our view, the panels need to retain a strong lay element in their composition in order to maintain a proper balance and to promote a greater perception of independence. Some panel members and clerks to whom we have spoken have also expressed concerns about the proposed change.

Extract from our visit reports:

" The panel members were unpersuaded by the Department's suggestion that all members should have a background in education. They felt that this would reduce the panel's independence in the eyes of the appellants."

3.7 We were consulted on draft Pupil Exclusions and Appeals Regulations which provided, among other things, for the new constitution of the panels to comprise, in the case of a 3 person panel, 1 lay member, 1 headteacher and 1 school governor; and in the case of a 5 person tribunal, 1 lay member, 2 headteachers and 2 school governors. The "lay member" can also be a governor or a person who has experience in school management in a voluntary capacity. We are concerned at the cumulative effect of this proposed change, particularly on the independence of the panels, when viewed alongside all the other concerns we have about their operation.

3.8 We also expressed concern about a proposal to extend the range of decisions the panel can make. Currently, the panel can either uphold the decision to exclude or direct that the child be reinstated. A new provision in the regulations provides that "the appeal panel may decide that because of exceptional circumstances or other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction". This provision lacks clarity and has the potential to operate to the detriment of parents.

3.9 The new provisions came into force on 20 January 2003 through the Education (Pupil Exclusions and Appeals) (Maintained Schools) Regulations 2002, and analogous regulations governing Pupil Referral Units. The new regulations provide for the panels to be chaired by the lay member. Whilst this allays some of our initial concerns, we believe that the new composition of the panels still results in their being too heavily weighted in favour of schools.

3.10 The key principles of openness, fairness and impartiality, as set out in paragraphs 2.7 to 2.14 in respect of admission appeal panels, apply equally, and in some instances even more so, to exclusion appeal panels:

for the reasons mentioned in paragraph 3.5 above, concerning the constitution and organisation of the panels, and the unsatisfactory arrangements for hearings, there is less separation between the original decision making and appeals functions than is usual in a truly independent appeals system;
the case for reform is even greater for exclusion panels, given the penal nature of the cases they hear, and the likelihood that, with local teachers on the panels (albeit not from the school involved), parents are unlikely to feel that their appeal in respect of their child's exclusion has received a fair hearing by an impartial appeal panel;
there is a powerful case for a national appeals service for exclusion cases under a judicial President, which we would ideally wish to see.

A legally qualified Chair

Extracts from our visit reports:

" At this visit there were signs of improvement, but I was confirmed in my view that exclusion appeals need, at the least, a legal chairman, and if exclusion appeals are going to involve so much consideration of special educational needs, they would be much better decided by the Special Educational Needs Tribunal."

" The Chairman made little effort to restrict the hearing to the key points under appeal, I suspect, because the panel had not agreed what these should be."

3.11 We have repeatedly discussed in our Annual Reports the strength of the case for exclusion appeal panels to have a legally qualified chair, and the findings from our additional programme of visits have reinforced that view. The need for high quality chairmanship, to which the Franks Report [Cmnd. 218] attached great importance, is particularly relevant to exclusion panels. Exclusion appeals are among the most significant of all the hearings we observe, principally because of the potentially adverse impact the panels' decisions can have on the lives of those affected by them. They are also akin to penal proceedings. Hearings are likely to be more adversarial in nature, and involve emotive issues. The Chair must exercise proper control of the proceedings and ensure that the panel's deliberations are structured so as to reach a properly reasoned decision. There is also a greater emphasis on the need for the panel to weigh often conflicting evidence and exercise discretion in a judicial manner. All these factors lead us to conclude that the effective operation of exclusion panels is fundamentally flawed by the absence of a legally qualified chair.

Exclusion and Special Educational Needs

Extract from our visit reports:

" The pupil in this case was about to be assessed for a statement of special educational needs just at the time he was excluded. The recently published consultation on exclusion from school states that the most recent data (July 2001) shows that the permanent exclusion rate for pupils with a statement of special educational needs is seven times higher than for pupils without a statement. As concluded in previous visit reports, exclusion appeals should be handled by the SENT, who would deal with matters much more professionally than this particular panel."

3.12 A recent Audit Commission report has shown that 9 out of 10 primary school and 6 out of 10 secondary school exclusions involve children with special educational needs. In the light of this and our own observations of the recurring link between exclusion and special educational needs, there would appear to be a clear case for exclusion appeals to be heard by the Special Educational Needs and Disability Tribunal (SENDIST), formerly the Special Educational Needs Tribunal (and from 1 September 2003, by the Special Educational Needs Tribunal for Wales). The SENDIST is a well-established, independent tribunal, with a presidential Head, whose constitution includes a legally qualified Chair. The current President of the SENDIST, Trevor Aldridge QC, is aware of our views and has acknowledged that the SENDIST could hear exclusion appeals satisfactorily, although recognising that there would be significant organisational issues to be addressed. The SENDIST already has limited jurisdiction over cases of temporary exclusion from maintained schools as a result of discrimination on grounds of disability (but more widely in relation to independent schools). We have no hesitation in repeating this recommendation, which we first raised with the Department during the passage of the Education Act of 1993.

The Clerk

Extract from our visit reports:

" The County Council's solicitors take it in turns to handle exclusion appeal panels. They have to make up for the inadequacies of the chairmen. The clerk did a good job, making sure that everyone understood the order of events and the law which applied, and then, effectively chairing the deliberations. This confirmed my view that either a legal chairman or a good legally qualified clerk is a pre-requisite for an effective hearing."

3.13 As with admission appeal panels we have observed a variety of different arrangements for the clerking of exclusion appeal hearings. A positive aspect is that, whilst practices vary between LEAs, overall, we have found that there is more likely to be a legally qualified clerk present at an exclusion appeal hearing.

3.14 The Secretary of State's guidance to the panels, in Circular 10/99 Social Inclusion: Pupil Support (which has been revised from 20 January 2003), advises at Annex D that "the appeal panel should have the services of a clerk who ... ideally, should have received some legal training and have experience in the conduct of appeal hearings". In our view, for as long as exclusion appeal panels do not have a legally qualified Chair (but see paragraph 3.11 above), it should be mandatory for there to be a legally qualified clerk at the hearing to provide a source of advice on the law and the procedures to be followed by the panel.

3.15 It can often be all too easy for the clerk, particularly where he or she is legally qualified, to assume control of the proceedings at a hearing. This should be avoided, and particularly in the presence of the parties to the appeal, since it inevitably impacts on the extent to which the parties perceive the panel to be independent. The Secretary of State's guidance to the panels does not provide sufficiently comprehensive guidance on the clerk's role (the key elements of which are covered in paragraph 2.24) and we suggest that the Department should remedy this in a future revision of the guidance material.

Representation

Extracts from our visit reports:

" The hearing was very carefully conducted. However, it was difficult to determine exactly what the boy and his mother wished to say. The panel tried very hard to elicit questions and comment from them but they never really contested any of the allegations or the decision to exclude."

" The Chairman of the discipline committee which had upheld the Head's decision to exclude was accompanied by a solicitor from the Council. In all there were three solicitors at the table. The bundle of papers in the case ran to nearly two hundred pages and they had not been paginated."

" The mother said practically nothing and asked no questions."

3.16 It is particularly important, given the penal nature of exclusion cases, for parents to have access to good quality specialist advice and representation, both in preparation for the hearing and on the day of the hearing to assist with the presentation of their case. Moreover, there is a strong case, in our view, for providing access to appropriate legal representation for exclusion cases, and we have become increasingly concerned by the lack of any provision for this. We have observed instances where those present at a hearing included the school's legal representative, a teacher and a member of the Discipline Committee, opposite an unrepresented parent.

3.17 We are pleased to note in the revised guidance on exclusion from schools and pupil referral units that one of the suggested model letters from head teachers to parents includes contact details for the Advisory Centre for Education, an independent national advice centre for parents of children in state maintained schools.

The Appeal Hearing

Extract from our visit reports:

" The panel did not take time to decide on what the key issues were in the appeals before the parties were brought in... The panel had two key issues to consider whether the allegations of assault were malicious, and if so, whether the decision to exclude the children permanently was a reasonable course of action for the headmaster to take in the circumstances. The panel had some difficulty in deciding the former, mainly because they had not explored the issue of the allegations of assault in sufficient depth."

3.18 Good preparation is one of the key factors in ensuring a successful appeal hearing, and particularly given the significance of the issues under consideration in exclusion appeal hearings. We have frequently observed hearings which have been less than satisfactory because of a lack of good preparation by the panel. Whilst the members will usually have each read the papers and familiarised themselves with the issues, they do not always take the opportunity before the hearing, as a panel, to agree among themselves the issues which need to be clarified and the strategy for establishing the facts and evidence at the hearing. The end result is often a hearing which fails to highlight the importance of the issues under appeal, which in turn leads to difficulties for the panel at the deliberation stage in weighing the evidence and reaching a properly and fairly balanced decision.

3.19 We recommend that panels should be encouraged to hold a pre-meeting before an appeal hearing to review the papers, clarify the issues under appeal and agree their strategy for the hearing. This need not be a time consuming exercise and would, in most instances, only take around 15 minutes. This will be time well spent, and may often result in a saving in the time taken by the hearing as a consequence of the panel being better prepared.

Accommodation for Hearings

Extracts from our visit reports:

" The venue was the local teacher training establishment, which was clearly a local authority building. It was rather off the beaten track and did not appear to be accessible by public transport. However, there were adequate parking facilities."

" The Municipal Building is an old building with a modern reception. There was adequate disabled parking and good lifts. The hearing took place in a very warm panelled room. The panel of three sat at one side of a large table, the clerk and the Council's legal adviser at one end, the boy and his mother opposite the panel and the four other participants ranged round the other end. It was fairly crowded but adequate. At various points the noise from offices next door was so loud that participants found it difficult to hear and the Council's legal adviser had to leave the room on two occasions in order to quieten things down."

3.20 The Secretary of State's guidance to exclusion appeal panels states that "the appeal hearing should not be held at the excluding school", but gives no other guidance as regards the need for LEAs to identify suitable venues. As with admission appeal hearings we have found the standards of hearing accommodation to be variable. For the most part hearings take place in Council accommodation, which may not always be sufficiently neutral since some appellants may not be able to distinguish the local authority from the local education authority. However, we recognise that local authority accommodation may often be the only option within the short timescale for organising exclusion hearings.

3.21 LEAs could be encouraged to do more to improve the standards of accommodation for hearings, perhaps by investigating alternatives to local authority buildings, whose committee rooms are often too large and intimidating.

The Panel's Decision and Reasons

3.22 Our Framework of Standards, at paragraph 1(d)x, states "Decisions should wherever reasonably possible be given on the day of the hearing, and if not, as soon as possible thereafter. They must be supported by reasons, explained clearly to the parties, and if given orally, confirmed in writing. Reasons should identify findings of fact, apply the relevant law and explain the decision".

3.23 We have expressed concern in the past about the lack of detailed reasons in the written decisions of exclusion panels. Recent decisions of the courts have clarified that panels must provide more detailed reasons as to why the panel reached its decision. We are pleased to note that the revised guidance to panels includes a model letter for use by the clerk in notifying parents of a panel's decision, which recommends the inclusion of detailed reasons.

contents | next >

^ top