COVID-19 and school exclusions
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COVID-19's disruption to the education sector has not gone unnoticed. Not only were schools forced to shut for a large number of pupils, with the exception of children of key workers and vulnerable children, but some excluded pupils and their families found themselves in limbo with uncertainty surrounding the exclusion process. As of 1 June 2020, the School Discipline (England) (Coronavirus) (Pupils Exclusions and Reviews) (Amendment) Regulations 2020 (the New Regulations) came into force clarifying the exclusion procedures to be followed in the midst of the COVID-19 pandemic.
The New Regulations concern all maintained schools, academies and pupil referral units. They will apply to all exclusions from 1 June 2020 until 24 September 2020, including exclusions occurring before 1 June 2020 which are:
- Permanent and fixed, but have not yet been considered by the school's governing board,
- Permanent and have been considered by the school's governing board which has chosen not to reinstate the pupil and the time limit to apply for a review of this decision has not passed.
- Permanent where a parent or pupil aged 18 has requested a review of the school's governing board's decision which has not yet happened.
Additionally, the exclusions listed above will remain subject to the New Regulations so long as the procedures for scrutiny have not been exhausted, even if this extends beyond 24 September 2020.
The New Regulations are based on the 2019 statutory guidance 'Exclusion from maintained schools, academies and pupil referral units in England'. This has been amended to reflect the temporary changes below, about which further information can be found on the Department for Education's website.
Remote access meetings
Telephone or videoconference can be used by schools' governing boards or independent review panels providing that the following conditions are met:
- All participants agree to hold these exclusion meetings virtually.
- All participants are able to use the technology, allowing them to hear and speak throughout the meeting.
- All the participants are able to put across their point of view or fulfil their function during the meeting.
- A fair and transparent meeting can be held remotely.
Arranging a remote access meeting
It is important that meetings are fair. Participants, notably pupils and their families, must be informed that the meeting does not need to be held virtually. Furthermore, school governing boards, arranging authorities and panel members must bear in mind that in some situations remote access meetings may present difficulties for some participants, such as someone with a disability or whose first language is not English. Here relevant equalities legislation must be complied with.
Where a meeting is held via remote access, the chair of the meeting will need to ensure that participants are able to engage using the technology proposed so that the fairness requirement is complied with. It is nevertheless possible for some participants to be physically present and for others to join using virtual means so long as the conditions for a remote access meeting listed above are fulfilled.
Timescales for meetings of governing boards
Where the governing board has not been able to meet within the original time limit this may be extended. The governing board should reassess at regular intervals whether the meeting can be held, so as to minimise uncertainty for pupils and their families as far as possible.
Meetings to consider permanent exclusions, and fixed-period exclusions resulting in the pupil missing more than 15 school days in a term should be held, where possible, within 15 school days. Where this is not possible due to COVID-19 preventing a physical meeting, or where it has not been reasonably practicable to hold a remote access meeting, the time limit will be extended to 25 days, or as long as reasonably necessary for a COVID-19-related motive. In the case of fixed exclusions resulting in the pupil missing between six and 15 days in a term, the usual 50 days period can be extended to 60 days, or as long as reasonably necessary for a COVID-19-related motive.
However, it is important to note that where the time limit for the school's governing board meeting expired before 1 June 2020, no extension can be made, and an overdue meeting should be arranged via remote access where the conditions for such a meeting are met, or in person, where it is safe and practicable to do so.
Timescales for application for independent reviews of exclusions
Where a school's governing board takes the decision not to reinstate a permanently-excluded pupil, the parents, or a pupil who is 18 or older, have 25 days from the date they receive the governing board's decision in which to apply for a review of this decision, or as long as reasonably necessary for a COVID-19-related motive.
Nevertheless, as with schools' governing board meetings, no extension can be made where the time limit for an independent review panel expired before 1 June 2020.
If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact: Hollie Suddards, or Tom Briant-Evans in Michelmores' Education team.
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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.