Just for Kids Law secures new protections for children excluded during the pandemic

The DfE to increase protections for excluded children in light of children's rights concerns
24 Sep 2020

Perhaps one of the most visible impacts of the Covid-19 pandemic has been the massive disruption to education, with school closures and exam cancellations at the forefront. But there have also been less high-profile changes that have still had a huge impact on children such as changes to the guidance and regulations for school exclusions reviews.

What changes were there to the school exclusions guidance and regulations?

When someone is excluded from school, they often have a right to have that exclusion reviewed by the school’s governors and an independent panel (IRP). This process is vital. Statistics show, consistently, that a significant number of reviews find that the exclusion was unlawful. This means that children rely on the system working to protect them from unjust, unfair exclusions which can go on to affect their whole lives.

Of course, for a child whose exclusion is found to be legally flawed, the timing of their review is critical to ensure they can return to school quickly and minimise disruption to their education. This is why panels usually have to be held within strict time limits. However, in response to Covid-19 these time limits were increased by the Department for Education (DfE). The potential extension for both stages of review is 25 school days up from 15 for each stage.

Luckily, there was a safeguard included in these rules - under the changes brought in in May, video hearings (those held over a service like Skype or Zoom, rather than in person) must happen within the original time limits. This means the extensions only apply to in-person meetings. However, there are four conditions that must be met before a video hearing can go ahead. We were concerned that each of these could potentially be open to abuse by a school or local authority looking to slow the process down.

Why does this matter to children excluded from school?

For the few young people who have another school to go to, a delayed hearing might not be such a big problem, but delays will inevitably impact most significantly on those most vulnerable to exclusion in the first place, and potentially with the most to lose. For example, children with significant special educational needs (SEN) might not have another suitable school to go to in the area. They might have a highly tailored package of support that is difficult to replicate and, without which, they will not be able to access their education. The time spent awaiting review will therefore be time spent missing out on education.

With specialist advice from Steve Broach and Rachel Sullivan, barristers at 39 Essex Chambers, we raised our concerns with the DfE, drawing on evidence from our casework. We made the DfE aware that we were ready to take legal action if necessary, to challenge these measures. Fortunately, after we outlined our concerns, the DfE agreed to make the vast majority of the changes we wanted.

What changes have been made to the school exclusions guidance and regulations?

The changes we achieved ensure that if families want a video hearing, rather than a face-to-face one, then the school should not refuse them one. Additionally, if the family does not have the technology to take part in a video hearing, then the school must take steps to facilitate their access to it. This means that the time limit extensions should no longer kick in over the family’s objections.

In addition to these changes to the guidance, the new regulations brought in from 25 September onwards have dropped the 10-day extension to governors hearings and IRP hearing deadlines. Instead, panels can only delay for the shortest time possible in order to hold a hearing. These regulations are set to last for 6 months to 24 April 2021.

We are delighted to have secured these changes, which will go a long way to protect children fighting for their right to an education during these challenging times. However, with widespread concerns about a spike in school exclusions as children return to school after six months off, we will be closely monitoring schools’ use of the guidance and regulations through our case work.

You can read about our other work on school exclusions here.

You can read the new guidance here: https://www.gov.uk/government/publications/school-exclusion/changes-to-the-school-exclusion-process-during-the-coronavirus-outbreak

Just for Kids Law will be adding pages to the School Exclusions Hub next week, which will explain these and other important changes and provide resources to engage with schools and local authorities. Keep watching the Just for Kids Law Twitter or Facebook pages for updates.