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Exclusion From Schools In Scotland: Guidance to Education Authorities Circular 8/03

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Exclusion From Schools In Scotland: Guidance to Education Authorities Authorities Circular 8/03

Section 2: Legislative position on exclusion

Power to exclude

  1. The power to exclude a pupil from a school and the circumstances under which a pupil may be excluded are set out in Regulation 4 of the Schools General (Scotland) Regulations 1975, as amended [SI 1975/1135: the relevant amending Regulations are the Schools General (Scotland) (Amendment) Regulations 1982 (SI 1982/56) and the Schools General (Scotland) Amendment (No 2) Regulations 1982 (SI 1982/1735)].
  2. The power to exclude - and therefore legal responsibility for exclusion - rests with the education authority. It is, however, open to an education authority to devolve the power to exclude to senior management level within a school.
  3. Regulation 4 states that an education authority shall not exclude a pupil from school unless the authority:
  • "are of the opinion that the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulations, or disciplinary requirements of the school"; or
  • "consider that in all the circumstances to allow the pupil to continue attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there."
  1. Education authorities, when deciding whether exclusion is necessary, must have regard to the particular facts and circumstances surrounding individual incidents and/or pupils.
  2. Exclusion from school of a pupil other than in conformity with the terms of the Schools General (Scotland) Regulations 1975 has no statutory backing. Failure to comply with the Regulations in such circumstances may render the authority open to legal challenge by the parent/s, or the pupil (where the pupil is a young person or is a child with legal capacity in terms of the Age of Legal Capacity (Scotland) Act 1991) or to action by Scottish Ministers under section 70 of the Education (Scotland) Act 1980, as amended.
  3. School exclusions must also operate within the duties imposed by anti-discrimination, human rights and other relevant legislation. Therefore, education authorities and schools should keep fully aware of developments.

Pupils with Special Educational Needs

Authorities should note anticipated changes to legislation concerning pupils with special educational needs, following which sections 16-21 of this guidance may be revised accordingly

  1. In relation to a pupil with Special Educational Needs, the circumstances under which a pupil may be excluded are the same as they are for other pupils. Additional considerations do, however, apply, particularly for those pupils with a Record of Needs.
  2. By definition, under section 60(2) of the Education (Scotland) Act 1980, a pupil with a Record of Needs has pronounced, specific or complex special educational needs, which require continuing review. A Record of Needs must, where appropriate, name the school which the pupil concerned should attend - the basis of the nomination being that the school has the expertise and resources to meet the pupil's special educational needs. In these circumstances, exclusion is particularly problematic for the pupil concerned.
  3. For example, it might be that the pupil's special educational needs cannot be catered for appropriately, unless the pupil attends either the nominated school or is immediately transferred to an alternative, suitable school. The pupil may have particular support needs during a period of exclusion if alternative provision is either home based (for example, home tuition) or has a different pattern of attendance than previously, which may place considerable stress on the parents or other family members. It may be the case, therefore, that parents of pupils with special educational needs may only be able to comply with their duty under section 30 of the 1980 Act by causing their child to attend another school run by the same or a different authority, or by the authority placing the pupil at their expense in an independent or grant-aided special school.
  4. Accordingly, where a pupil with a Record of Needs is at risk of exclusion, an authority should seek to balance the case for exclusion with the need to take all reasonable steps to secure that appropriate provision is made for the pupil's special educational needs. However, this additional consideration would not prevent exclusion where this is deemed absolutely necessary.
  5. Under the 1980 Act, an authority is required to carry out statutory review procedures to change the nominated school on a Record of Needs (Circular No 4/96 refers).
  6. A further consideration applies in relation to a pupil with a Record of Needs who has been excluded. Where aspects of the provision for such a pupil, stipulated under the Record of Needs (e.g., speech and language therapy, or contact with an educational psychologist), are normally provided, the exclusion does not affect the education authority's duty to provide those services, whether these are provided on school premises or at an alternate venue. Accordingly, such provision should continue to be provided notwithstanding the exclusion ( see para 52). Consultation with any other service providers in order to maintain provision to an excluded pupil should take account of the needs of other service users with whom the excluded pupil interacts when receiving the service.

Procedures

  1. Statutory provisions relating to the procedures to be followed in exclusion are set out in Regulation 4A of the Schools General (Scotland) Regulations 1975.
  2. The authority must, on the day upon which a decision to exclude a pupil is taken, intimate in writing or orally to the pupil's parent:
  • the decision to exclude; and
  • the date, time and place where the headteacher, or teacher or official of the education authority, shall be available to discuss the decision to exclude. This meeting must be within 7 days of the decision to exclude.
  1. Where intimations are oral, it is good practice to then confirm details in writing.
  2. The Age of Legal Capacity (Scotland) Act 1991 ( see Annex C, Terminology) states that a person under the age of sixteen has legal capacity where they have sufficient maturity and understanding, and there is a general presumption that children aged 12 years and over have that capacity. An intimation of exclusion should be made to a pupil of legal capacity, or young person (over sixteen). The meeting to discuss the decision to exclude should be with the pupil, where the pupil has legal capacity, or the young person. However, it is good practice to also keep parents informed and involved at every stage, regardless of the age of the child ( see paragraph 82).
  3. In the case of pupils who are under sixteen and are not judged to have legal capacity, the intimation should be to the parent and the meeting to discuss the decision should be with the parent.
  4. While not required by the relevant legal provisions, it is also good practice for schools to contact parents prior to the pupil being required to leave school premises. In all cases, the school should check that appropriate arrangements for the care of a child or young person are being made, before they are sent from school premises. See paragraph 56 with regard to Looked After Children.
  5. The authority must subsequently, i.e. following the requirements set out in para 23, notify the pupil / parent in writing of:
  • the reason(s) the pupil was excluded;
  • the right of appeal and how appeals can be initiated; and
  • any other relevant information for example a proposed action plan which sets out respective roles and responsibilities on the pupil's return to the school, if applicable
  1. Again, such intimation should be to the pupil or young person, or to the parent where the child has no legal capacity. It is good practice in all situations to copy any such intimation to the parent/s.
  2. The regulations provide two timescales for providing this subsequent written notification:
  • Where the pupil has been excluded for a period exceeding 7 days, or where the parents (pupil or young person where applicable) have not, within 7 days of first being informed of the decision to exclude, indicated to the headteacher that they do not intend to appeal the decision (whether or not the pupil has been re-admitted to the school), the subsequent written notification must be issued within 8 days of the decision to exclude.
  • In any other circumstances, the education authority may issue the subsequent written notification within 8 days of the decision to exclude, or thereafter.
  1. The Standards in Scotland's Schools etc. Act 2000, section 2(2), requires that education authorities take account, so far as is reasonably practicable, of any views expressed by a child or young person to whom they are providing school education. In light of this, and section 28H of the Education (Scotland) Act 1980, as amended, education authorities may consider it good practice to involve all excluded children in the procedures for notification under the 1975 Regulations.
  2. The length of an exclusion is not defined in the legislation and accordingly is a matter for the discretion of the education authority. The guiding principle is that any sanction should be proportionate to the breach of discipline. Therefore the length of an exclusion should reflect the seriousness of:
  • the breach of discipline which resulted in the exclusion;
  • the pupil's past disciplinary record; and
  • any other relevant circumstances surrounding the pupil and/or the incident/s on which the decision to exclude is based.
  1. A single exclusion should not, barring exceptional circumstances, span more than one academic year, even where a decision to exclude is taken during the last few days of the summer term. It is good practice to resolve exclusion and re-admission issues within the same academic year.
  2. A pupil's/parent's decision to appeal against exclusion should in itself have no effect on the length of the exclusion, or on any conditions attached to the pupil's return. A pupil may return to school after a period of exclusion even if the appeal process has not completed prior to this date.
  3. Regulation 10(1A) of the 1975 Regulations relates to information on a pupil's progress record about a decision to exclude; and regulation 10(3) relates to the use and disclosure of information about exclusion recorded in a pupil's progress record.

Right of appeal against the decision to exclude

  1. The right of appeal is conferred by section 28H of the Education (Scotland) Act 1980, as extended by section 41 of the Standards in Scotland's Schools etc Act 2000. An appeal against exclusion may be made, in the first instance, to an Education Appeal Committee, set up by the education authority under section 28D of the 1980 Act. A further appeal against the decision of the Education Appeal Committee may be made to the sheriff court. The Education (Appeal Committee Procedures) (Scotland) Regulations 1982 [SI 1982/1736] regulate the procedures of appeal committees, including committees set up to hear appeals against exclusion.
  2. Section 28H of the 1980 Act conferred on parents of pupils and pupils themselves where they are young persons (i.e. age sixteen years, and over) a right to refer a decision to exclude to an Appeal Committee. (If a young person chooses to exercise this right, the young person's parent does not have a right of appeal.) Section 41 of the Standards in Scotland's Schools etc. Act 2000 puts pupils with legal capacity in the same position as a young person. ( see paragraph 25). Thus, either the pupil, where the pupil is over sixteen years or is judged to be of legal capacity, or the parent of a pupil, where the pupil does not have legal capacity or is incapable of expressing his views for the purposes of section 61(7) of the 1980 Act, may appeal. A parent and pupil may not both appeal ( see paragraph 82 re the role of parents as supported and advocates for their child).
  3. In order for the process of appeal to function effectively, it is necessary for education authorities to advise pupils and their parents, not only of their right to appeal against the exclusion, but also of the procedures involved, the type of evidence admissible at the hearing and the support which they can bring with them.
  4. Section 2(2) of the 2000 Act states that due regard is to be given to the views of the child, as far as is reasonably practicable. Their views should be sought even when it is the parent taking forward the appeal. This embodies the position in Article 12 of the United Nations Convention on the Rights of the Child, and the Children (Scotland) Act 1995 which stresses that the child's point of view should be represented and taken into account in decisions which directly affect them.

Alternative education provision

  1. Section 14(3) of the Education (Scotland) Act 1980 places a duty on education authorities to make alternative education provision for excluded pupils. The duty is to, without undue delay, either:
  • provide school education for [the excluded pupil] in a school managed by them; or
  • make arrangements for [the excluded pupil] to receive such education in any other school the managers of which are willing to receive [the excluded pupil]; or
  • make special arrangements for the excluded pupil to receive education other than at a school.
  1. The purpose of Section 14(3) is to ensure that excluded pupils are given every chance to continue their studies, even in situations where their behaviour has been such that they have to be removed from a school. The duty on education authorities to make alternative education provision for excluded pupils arises immediately when the pupil is excluded and must be discharged without undue delay. Without continuation of their studies the likelihood is that such pupils will fall further behind in their education and become even more distant from both learning as a process and school as an institution.
  2. Both education authorities and individual schools will need to be capable of providing resources for excluded pupils, including special arrangements as are discussed below, and key contacts in each should assume responsibility for ensuring that resources are provided.
  3. Whilst it is recognised that in certain cases, some delay may be unavoidable to enable appropriate arrangements to be put in place, it is expected that in all cases, those arrangements will be effective within 10 school days of the exclusion.
  4. Where pupils are excluded, the most common method of making provision for their continued education, in practice, is in another school managed by the same education authority, or a school managed by a neighbouring education authority or a school which is independently managed. All of these arrangements are subject to the management of the receiving school being willing to accept the pupil.

Special arrangements other than at a school

  1. Where the above options are not appropriate, then the education authority must make special arrangements which seek to provide, as far as possible, the quality, quantity and range of education which was previously available to the excluded pupil in school, prior to their exclusion. The need for any such special arrangements should arise only in exceptional cases, and only as an interim measure prior to the pupil receiving full-time education in a school setting.
  2. Particular consideration should be given to individual circumstances, for example where:
  • an exclusion would include the period immediately prior to examinations and attendance at exams
  • a pupil has been excluded on a number of occasions. A recurring need to exclude a pupil may suggest that a different approach is required to deal with the situation.
  • a child is looked after by the authority. The authority and social work department should collaborate to ensure that reference to the child's Care Plan is made, and the child's appropriate involvement in a structured programme of learning is urgently considered, to meet the educational requirements of their Care Plan.
  1. Any necessary special arrangements should, in the first instance, involve providing pupils with the same classwork and homework for completion, marking and return which they could expect had they not been excluded. Unless the exclusion is of only a few days duration, it will not be sufficient simply to provide excluded pupils with homework or classwork if they do not also receive sufficient teaching to enable them to understand the material. Any arrangements should therefore involve contact with pupils on a regular basis.
  2. Consideration as to the amount of contact time required needs to be given on an individual basis. Younger children who are less well able to work on their own, children with pre-existing difficulties in learning, children working towards examinations and those whose families may be less able to support their learning, might be considered to have greater needs for direct teacher contact.The division and spread of allocated contact time should also be based on individual need. The reason(s) for a pupil being excluded should be taken into account when deciding levels of contact, in order to ensure the security of all those involved.
  3. The following illustrative list, although not intended to be prescriptive, nor exhaustive, gives examples of the type of contact which may take place as part of special arrangements, although not all will be appropriate or available for every pupil:
  • the provision of suitable homework sufficient to ensure that the pupil reviews the work that is to be taught in class during the period of the exclusion, with a subsequent check to ensure that the pupil has fully understood the material;
  • home tuition;
  • involvement in structured programmes of learning outside the home in a community centre, library or internet café;
  • involvement in structured programmes of learning outside the home in a unit or centre specifically designed for that purpose;
  • involvement in programmes designed to address the behaviour or needs of the pupil in order to support re-integration into school education and prevent further exclusions
  • interaction with pupils by e-mail.
  1. Teachers or other staff working with children out of school need to have current professional credibility in terms of curricular knowledge and support for learning skills. They also need a high level of inter-personal skills and empathy.
  2. Where home tuition is the form of contact adopted, authorities may also wish to employ staff from specialist services, in addition to involvement by teachers from a pupil's own school. These specialist staff should have sufficient additional skills and knowledge to undertake home teaching in cases where a pupil's own school may be unable to undertake this, and/or where a specialist service may be more appropriate in terms of a pupil's individual needs or a particular family context.

Pupils with Special Educational Needs

Authorities should note anticipated changes to legislation concerning pupils with special educational needs, following which sections 16-21 of this guidance may be revised accordingly

  1. Education authorities should be aware that under section 62(3) of the Education (Scotland) Act 1980 they shall ensure that provision made by them under the 1980 Act for a recorded child or young person includes provision for their special educational needs. As discussed above, education authorities have a duty under section 14(3) of the 1980 Act to make alternative provision for excluded pupils. Accordingly this alternative provision must include provision for the pupil's special educational needs where that pupil is recorded.

Consideration of family circumstances, parents and pupils

  1. Establishing and maintaining good relationships between pupils, parents, schools and education authorities is of vital importance, and education authorities should ensure that there is adequate provision of time, in all cases, for consultation with pupils and parents in deciding appropriate arrangements for the continuing education of a pupil excluded, whether on a temporary basis or removed from the register.
  2. The family of a pupil excluded from school may have to arrange additional child care and may also experience increased stress as a result of fear and uncertainty about the future of their child's education. The involvement of parents should therefore be actively sought at all stages.
  3. An awareness of, and sensitivity towards, family circumstances and cultural and religious beliefs are particularly important.
  4. Authorities may find it appropriate to determine, in consultation with social work services, the potential risk involved where children may be exposed to stressful home situations. At some times consultation may need to be intensive. The Action Plan on Better Integrated Services for Children "For Scotland's Children" gives further guidance on co-ordination of needs assessment and intervention. Social work services should always be informed of a decision to exclude where the pupil concerned is on the Child Protection Register or is a Looked After Child, and as far as possible, provision put in place to ensure the ongoing monitoring of the welfare of the child, as well as provision for their educational needs as described in the child's Care Plan.