New exclusion review panel arrangements to apply to academies and free schools

From September 2012 the the coming into force of section 4 of the Education Act 2011 will mean that the existing Independent Appeal Panel regime for challenging permanent exclusions from maintained schools will be replaced (only in England) with a ‘review’ mechanism.

On 13 April 2012, the Secretary of State laid before parliament regulations which will apply the same change to academies and free schools.

That is interesting not only because of the change in the exclusions regime at academies/free schools, but also because it will be the first time the Secretary of State has overidden existing funding agreements to impose a change across all existing academies and free schools.

Let’s start with what’s happening with maintained schools in England:

At present section 52 of the Education Act 2002 makes provision for permanent exclusions from maintained schools in England and Wales. It provides for the familiar Independent Appeal Panel (IAP) regime.

Section 4 of the Education Act 2011 will modify that section so that is only applies in Wales. A new section 51A will be inserted into the Education Act 2002 to deal with permanent exclusion from maintained schools in England.

The English regime will no longer then include IAPs with the power to direct reinstatement. Instead there will be ‘review panels’ with much more limited powers. They will only be able to:

“(a) uphold the decision of the responsible body,

(b) recommend that the responsible body reconsiders the matter, or

(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”

That means that even if the review body considers (for example) that the evidence shows that the pupil did not do what was alleged, or thinks that permanent exclusion is a serious over-reaction to it, all it can do is recommend that the head/principal reconsiders the decision. It will be interesting to see how seriously such recommendations are taken.

It is only where the review panel things that the decision breached ‘judicial review principles’ that it can order a reconsideration. So the review panel can never come anywhere close to directing reinstatement (as is currently the position).

The reference to ‘judicial review principles’ will, in effect, mean non-legal panel members deciding on what are quite tricky legal questions. I suspect lots of mistakes will be made and review panel decisions will end up being subject to judicial review themselves. And if review panels do their job properly they will end up (in my view) ordering a lot of reconsiderations because (in my experience) many if not most decisions by heads/principles are flawed on judicial review principles because (at the very least) the pupil did not get a proper chance to respond to the allegations before being permanently excluded. (At present that does not matter because the IAP hears the evidence afresh, and considers the pupil’s response to it, before reaching its own decision on whether the pupil actually did what is alleged, thus ‘curing’ the procedural defect in the initial decision).

So how does that affect academies/free schools?

As explained in another post, the more recently created academies (and the free schools), including all of those created by the Coalition Government, have funding agreements which require them to behave like maintained schools when it comes to permanent exclusions.

But the funding agreements for those academies in the early days do not have that linkage. They simply had provisions dealing with permanent exclusions directly written into their funding agreements. Take thus, for example, the  Bexley Business Academy. Its funding agreement provides for an ‘unrestricted’ right of appeal (see Annex 4 para 30) to an Indendent Appeal Panel (see Annex 4 para 35) with the ‘remit to decide whether the pupil should be reinstated’ (Annex 4 para 44) including deciding ‘whether the student actually did what he/she is accused of doing’ (Annex 4 para 45) to reach a decision which is ‘binding on all the parties’ (Annex 4 para 62).

To deal with that problem, section 4 of the Education Act 2011 also creates a new section 51A(12) of the Education Act 2002. It provides that:

“Regulations may make provision for this section [i.e. section 51A] and regulations made under it to apply, with prescribed modifications, in relation to Academies or a description of Academy.”

That allows the Secretary of State to make regulations which impose on academies/free schools, the same new regime which will apply in maintained schools.

Earlier in the year the Department consulted on detailed proposals for regulations (i.e. a stautory instrument) which would flesh out the detail of the new regime in maintained schools. The consultation document mentioned the possibility of regulations also applying to academies, but gave no detail.

Anyway, the regulations themselves were laid before parliament (part of the procedure for bringing them into force) on 13 April 2012.

You can download a copy here.

Parts 1-3 deal with maintained schools.

Part 4 covers academies/free schools.

Although they do not spell this out, those provisions (which have the force of an act of parliament) will thus override the bits of each academy/free school funding agreement dealing with exclusions/appeals.

That is a first!

As explained in another post, funding agreements are contracts which, generally, can only be changed by the agreement of the parties (here the Secretary of State and the Academy Trust).

It is unusual for an act of parliament to be used to override contracts in this way.

It is even odder here because, of course, the Secretary of State is a party to the contract and the person responsible for the new legislation. So a party to a contract is taking advantage of his position in the parliamentary process to override the terms of over a thousand contracts to which he is a party.

It is also notable because the consultation earlier in the year did not really lay the ground work for this development. Academies on the receiving end of this change might complain that they were not properly consulted.

But, of course, they are unlikely to complain about the lack of consultation or about having the new rules imposed on them (thus overriding their funding agreements) because the new rules make is easier for them permanently to exclude pupils.

However, having established the idea that he might override funding agreements in this way, the Secretary of State might be tempted to try and do it in ways with which the existing body of academies and free schools were not happy. That could be interesting.

But on a more serious note: I suspect this will lead to confusion with academies having gradually got used to the idea that their funding agreement sets out the rules, now having to realise that, in some respects, what the funding agreement says, does not apply.

Yes more complexity.

A can of worms.

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