Andrew Lockley,a lawyer, reports on the growing risks of litigation in excluding pupils from school
Exclusions from school are expensive for local authorities. Educating excluded pupils in referral units is said to cost an extra pound;5,000 a year per pupil. David Blunkett, the Secretary of State for Education and Employment, has pledged extra money to help fund such pupils.
But exclusions can also prove costly in legal fees, if the exclusion process is not conducted fairly. On this page are three case studies based on real events.
Cases Two and Three ended up in the High Court. Case One might have done so, but alternative arrangements were quickly made for Barry to continue his studies.
What is common to the three situations is that the proceedings were not conducted according to the rules of natural justice. These rules, well entrenched as guidelines for fairness, apply in any situation in which personal or property rights are at stake. Just as a teacher is entitled to a fair hearing on any allegation made against him or her, so (the courts have held) is a pupil facing exclusion.
Although the principles of natural justice are widely understood by lawyers, they will not necessarily be the main consideration of a head or sub-committee of governors. They are not conveniently gathered in an Act of Parliament or in guidance from the Department for Education and Employment. Sometimes, however, Acts of Parliament do refer to them implicitly. The Schools Standards and Framework Act 1988 - the Government's main education statute - contains provisions for a new regime for exclusions.
For example, it specifically provides that the parents of an excluded pupil are to be allowed to address the governors before any decision is made to confirm a decision taken by the headteacher. The principle that both sides of the case must be heard is one of the cardinal rules of natural justice. The courts have shown that they will overturn an exclusion decision if that principle is not observed.
Decision-makers are at risk of running into difficulty if they only go by the book. In other words, they need to think about broader principles of fairness, as well as knowing what the relevant Acts of Parliament say and following the guidance issued by the DFEE. It is all too easy to lose the plot in a tense and unfamiliar situation.
As chair of a governors' disciplinary sub-committee, I have had politely to point out to a fellow governor that it was not appropriate for him to sit on an appeal in which his wife, a teacher at the school, had prepared a statement about the iniquities of the pupil whose exclusion appeal we were hearing. The courts will overturn any decision which appears to have been affected by bias - even if there is no evidence it has occurred.
To underline the need for care when dealing with exclusion appeals, decision-makers should remember how comparatively easy it is for legal proceedings to be started in the High Court. Legal aid is available to children in their own right and the financial means of their parents are not taken into account.
In practice, therefore, almost any pupil can obtain legal aid to mount a High Court challenge. Of course, the case has to have merit or it will not get through the legal aid application process. Furthermore, the High Court application, which will be for judicial review, has to go through the preliminary filter of a High Court judge, but he or she will only be looking at whether there is an arguable case for the pupil.
By this stage, the governors and the appeal panel (if they were involved) will have incurred legal costs. If the pupil's application proceeds to a full trial, then the authorities are almost certainly facing a legal bill of thousands of pounds. If the authorities lose the case, they will almost certainly be ordered to pay the pupil's costs. Even if they win, they are very unlikely to recover their costs from the Legal Aid Fund. In one case, the total cost to the Funding Agency for Schools of the pupil's successful application to the High Court will exceed pound;20,000.
The need to control legal costs will be heightened because, under the Government's Fair Funding arrangements, legal services will be within the central budgets delegated to schools. Hence it seems they will have to purchase their own legal services. This will take effect from September for former grant-maintained schools and from April 2000 for all schools.
A mistake in the exclusion process could then become very expensive indeed for schools. The inevitable comparison between the cost of going to law and the cost of hiring (or retaining) a teacher is not an attractive one. Andrew Lockley is the head of professional services and public law at Irwin Mitchell, a national law firm based in Sheffield. He is also part-time chairman of special educational needs tribunals. He writes here in a personal capacity.
CASE STUDY 1
Two boys are caught smoking cannabis on school premises. Alan is a persistent offender and a known dealer. Barry had bought a small amount of cannabis from the dealer and is egged on by his classmates to try it. He has never smoked cannabis or taken any other illegal substance before. Both boys are in Year 11, their GCSE year. Both are permanently excluded. A third boy caught smoking cannabis two days before is not excluded. Although the school has an anti-drugs policy it is well known that not all drug-related offences lead to exclusion.
CASE STUDY 2
On the school bus returning from a ceremonial event, a fight breaks out between some 12-year-olds. Chris is picked out as the ring-leader and the headteacher decides to exclude him. Statements are taken from several pupils. The parents appeal to the governors and the disciplinary sub-committee meets to decide whether to uphold the head's exclusion. The head (and the governors) has a pile of witness statements and refers to them liberally in presenting his case for upholding exclusion. The parents are present at the meeting but are not given copies of the statements taken from the other pupils.
CASE STUDY 3
David, who has a statement of special educational needs, is excluded from a church secondary school after an unpleasant incident involving a girl pupil off the school premises. The governors decline to uphold the headteacher's decision to exclude and it is agreed that a programme of support from the Social Services Department (David is in care) will be put in place before he returns to school. A new head arrives at the school and excludes David again, although in the meantime he has not been back to school. This time the governors uphold the new head's decision on appeal. The Diocesan Appeals Panel had to decide whether the head was entitled to exclude a second time for the same offence. Instead of discussing it with his colleagues, the chair of the panel announces to the appeal hearing that he has decided that the head was entitled to exclude for a second time.