The Ombudsman's final decision:
Summary: There is no fault in the way an independent review panel, arranged by the Council, reached its decision to uphold the permanent exclusion of Mr F’s son.
- The complainant, whom I will call Mr F, complains about the decision of an independent review panel to uphold his son’s permanent exclusion.
- Mr F complains the Panel did not challenge information presented by the school’s headteacher. He says the Panel failed to take into account his son’s special educational needs (SEN) and that he was formerly a Looked After Child.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- A previous investigator spoke to Mr F about his complaint and made enquiries of the Council. I have considered the information Mr F has provided, the Council’s responses and:
- The Education Act 1996, Education Act 2002 and the Education and Inspections Act 2006
- The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012
- Statutory guidance: Exclusion from maintained schools, Academies and pupil referral units in England: A guide for those with legal responsibilities in relation to exclusion, 2012 (“the Guidance”)
What I found
- Headteachers can exclude a pupil for a fixed period or permanently, in response to serious or persistent breaches of the school's behaviour policy, and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
- In exceptional cases a fixed period exclusion may be converted to a permanent exclusion. It is unlawful to increase the severity of an exclusion for non-disciplinary reasons.
- Where a pupil with a statement of SEN is at risk of exclusion, schools should consider what additional support or alternative placement may be required and consider requesting an early annual review or emergency review.
- If the pupil is permanently excluded, the school’s governing body must consider whether that decision should be upheld or overturned. If the decision is upheld, a parent has a right to request that an independent panel review this decision.
- Parents can appeal to SEND if they consider the exclusion has occurred as a result of discrimination because of their child’s disability.
Independent Review Panels
- If parents appeal the exclusion, councils must constitute a panel of independent members to review the governing body’s decision.
- Parents, the pupil, any alleged victim or any witnesses may attend the panel or submit written statements. The Guidance says panels “must only take account of the evidence that was available to the governing body at the time of making their decision. This includes any evidence which the panel considers would, or should, have been available to the governing body if they had been acting reasonably.” The panel must apply the “balance of probabilities” standard of proof.
- Panels cannot substitute their decision for that of the governors, and they cannot reinstate a pupil. The panel can uphold the decision to exclude, recommend the governing body reconsiders their decision, or quash the governing body's decision and direct reconsideration.
- The decision to quash has to meet a high threshold. The panel can only take it if one of the following criteria are met:
- Illegality - did the head teacher and / or governing body act outside the scope of their legal powers in taking the decision to exclude?
- Irrationality - was the decision of the governing body not to reinstate the pupil so unreasonable that it was not one a sensible person could have made?
- Procedural impropriety - was the process of exclusion and the governing body's consideration so unfair or flawed that justice was clearly not done?
- Parents may request the attendance at the panel of an SEN expert. The role of the SEN expert is to provide impartial advice on:
- how SEN might be relevant to the exclusion
- whether the school’s SEN policies or the application of these policies to the excluded pupil were legal, reasonable and procedurally fair. If the SEN expert believes this was not the case s/he should advise the panel on the possible contribution this could have made to the circumstances of the pupil’s exclusion.
- Mr F’s adopted son, J, has a statement of SEN. He had started at School X, a primary school, in 2013. Mr F says J has attachment issues related to being a former looked after child. There were some behaviour problems at school and coping strategies suggested by the Council’s Behaviour Support Service were used to manage this.
- In 2016 the school excluded J a number of times for fixed periods. In October 2016 there was an early annual review of J’s statement. A plan was agreed to support J.
- In February 2017 there was an incident on a school trip when J hit another child. The headteacher decided to exclude J for 3 and a half days. A few days later the headteacher decided to convert this to a permanent exclusion, following discussions with staff regarding the risk to other children’s safety.
- The governing body reviewed the decision to permanently exclude in March 2017.
- The headteacher gave the governors a list of behaviour incidents since September 2016, including assaults on staff and pupils and attempts to abscond from school. He said a managed move to an alternative placement had been discussed with staff and parents. However, the headteacher’s view was that the risk to children and staff could not be managed safely whilst J remained on site. He considered School X had met the limits of its resources to meet J’s needs. He noted there had been a decrease in the number of incidents but this was due to isolating J from the rest of the school.
- The Council noted it had expected School X to have made contact prior to making the decision to exclude permanently.
- The governing body decided the headteacher’s decision was lawful and reasonable and procedurally fair. Mr F disagreed and asked for a review by the Panel. He had a number of concerns:
- whether there had been adequate management of J on the school trip
- that, whilst J did not deny hitting the other child, no statements had been taken from the other child or any witnesses
- there was no evidence to support the list of incidents
- that isolating J was not good for him and the coping strategies had failed
- the actions agreed at the October 2016 review had not been implemented
- an emergency review should have taken place before the decision to permanently exclude
- School X had failed to provide adequate justification for the decision to permanently exclude and had not considered other possible options for J's education, such as a managed move or education off-site
- the decision to permanently exclude J was due to School X not having the resources to meet his needs
- the school’s decision was possibly discriminatory
- the effect on J of the departure of his teaching assistant.
- whether J’s behaviours were directly linked to his SEN; it considered this was unclear.
- that a managed move could have been considered before excluding J.
- whilst the school had not taken any statements after the incident, the Panel noted that a class teacher had spoken to the child involved on the day.
- that the school had not consulted with Mr F prior to converting the fixed period exclusion into a permanent exclusion.
- that an emergency review had not taken place and noted the SEN expert’s comments on this. The Panel considered the October 2016 review was sufficient and it was reasonable for School X to not have held an emergency review given its duty to ensure the safety of the other pupils at the school.
Mr F’s complaint
- Mr F disagreed with the Panel’s decision and complained to the Ombudsman. He said the Panel “appeared to be extremely prejudiced”. He said it did not take the views of the SEN expert seriously and his comments had been disregarded in the Panel’s minutes and decision letter. Mr F’s representative at the Panel said the chairperson was making faces when the SEN expert was giving his opinion. Mr F disputed the Panel’s view that J’s actions were not caused by his SEN.
- Mr F considered there had been procedural impropriety which called into question the decision. He said there was a lack of witness statements, the Panel had accepted the headteacher’s reports without evidence and the Panel’s outcome contained factual inaccuracies. Neither the governing body nor the Panel had considered J’s statement.
- Mr F considered there should have been an emergency review and consultation with parents before the decision to permanently exclude. Mr F said the headteacher had a duty to consider all options before deciding to permanently exclude but there had been only a very brief conversation about the possibility of a managed move. The Panel had not asked for evidence that the headteacher had discussed this option with the SEN coordinator.
- Mr F considered the decision to permanently exclude was unfair and wants it to be taken off J’s school record.
- Following the Panel’s decision, Mr F obtained documents through a freedom of information request. He says these show there was little evidence to support the list of behaviour incidents reported by the headteacher. In response to my draft decision, Mr F said further evidence had since emerged that the headteacher’s evidence to the governing body had been altered and some evidence withheld.
- Following his complaint to the Ombudsman, Mr F also appealed to SEND that the exclusion was discriminatory on disability grounds. The tribunal has not yet concluded.
- The Ombudsman is not a further appeal process. We cannot investigate the headteacher’s decision to exclude J or the governors’ decision to confirm the exclusion. My role is to investigate how the Panel considered the appeal.
- Independent review panels are entitled to make decisions based on the evidence before them. We cannot question whether the Panel’s decision was right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. If there is no evidence of fault, we cannot substitute our view for the Panel’s.
- I have considered how the Panel was constituted and convened and found no evidence of fault. The Panel members were appropriately trained and supported by a clerk with a legal background.
Did the Panel consider J’s SEN?
- Mr F says the Panel did not take seriously the SEN expert’s views. In response to our enquiries, the Council apologised if the chairperson's expressions caused concern to Mr F and said it would bring this to their attention. The Council said this “did not detract from the serious consideration which the chairperson would have given to the case”. It said all the Panel members were very experienced and the Council had received no complaints in this regard before.
- The Panel minutes show the SEN expert considered a managed move would have been preferable for J and had questioned the validity of converting to a permanent exclusion. Mr F’s representative at the Panel says the minutes do not reflect fully the expert’s comments and the Panel’s decision letter refers to the expert’s “opinion”, but this is not evidence of fault by the Panel. The Guidance says the Panel “must have regard to the SEN expert’s view”. It is not fault for the Panel to disagree with the expert.
- The documents show that Mr F’s representative was able to speak in support of the appeal and make their case to the Panel. There was also a written submission which detailed Mr F’s views about how J’s SEN impacted his behaviour. The Panel was therefore aware of J’s SEN and that he was adopted and a former looked after child. It considered that the link between J’s behaviour and his SEN was unclear. I realise Mr F disagrees with the Panel’s view, but this is not evidence of fault by the Panel.
Should the Panel have challenged the headteacher’s evidence?
- Mr F says the Panel should have found the governors’ decision was flawed because they had not had J’s SEN statement and had accepted the headteacher’s report without supporting evidence. In response to my draft decision, he said it is wrong that the governing body and the Panel can uphold an exclusion without seeking independent evidence.
- I cannot investigate the actions of the governing body. The Guidance says it should ask for “any written evidence including witness statements and other relevant information held by the school, such as those relating to a pupil's SEN”. There is no requirement for it seek independent evidence.
- The Guidance says panels must only take account of the evidence that was available to the governing body at the time of making their decision, or that the governing body should reasonably have obtained. Parents, the pupil, any alleged victim or any witnesses may attend or submit written statements, but the Panel is not required to take further witness statements. I therefore cannot find fault by the Panel in not asking for J’s SEN statement or witness statements.
- Mr F disputes the headteacher’s version of events and says there is now evidence the headteacher’s information was wrong. He says this evidence would have been available to the governors or the Panel if it had been requested.
- The Panel must apply the balance of probabilities standard of proof. It is entitled to determine that something is “more likely than not to be true” based on the evidence before it. It was aware that Mr F was concerned about a lack of witness statements, but it decided it had no reason to consider that the headteacher’s evidence was wrong, or that there was more evidence the governing body should have obtained. It was entitled to reach this view and there is no evidence of fault in the way it did so.
Should there have been an emergency review?
- Mr F says there should have been an emergency review before the decision to permanently exclude J. He considers the October 2016 review was inadequate as its recommendations had not been implemented.
- The Guidance says, where a pupil with a statement of SEN is at risk of exclusion, schools “should consider requesting an early annual review or emergency review.” The Panel was aware of Mr F’s, the Council’s and the expert’s views on this point and considered the matter. There is no requirement to hold such a review. I therefore cannot find fault in the Panel’s decision that it was reasonable for the school to not hold an emergency review.
Was there procedural impropriety?
- Mr F says the headteacher did not consult with him before the decision to permanently exclude. There is no requirement on the headteacher to do so. There is therefore no fault by the Panel in not considering there to be procedural impropriety on this point.
- Mr F says the headteacher had a duty to consider all options before deciding to permanently exclude but did not do so. I cannot investigate the actions of the headteacher. The Guidance says schools “should consider” what additional support or alternative placement may be necessary. The Panel considered this point and determined the headteacher’s actions were sufficient. This is a decision it was entitled to make and without evidence of fault in the process I cannot question it.
- Mr F considered the exclusion was due to a lack of resources and not for disciplinary reasons. The Panel was satisfied that J had persistently breached the school's behaviour policy and agreed that allowing him to remain in School X would seriously harm the education or welfare of others at the school. There is no evidence of fault in the way it determined this.
- I have not found fault in the way the Panel considered the matter. It decided the governors' decision did not meet the criteria to quash it. It then considered all other factors, but decided there were no procedural flaws that justified a reconsideration of the governing body's decision. Without evidence of fault in the way it reached this decision, the Ombudsman cannot question it.
- There is no fault in the way the Panel reached its decision to uphold the permanent exclusion of Mr F’s son.
- I have completed my investigation.
Investigator's decision on behalf of the Ombudsman