Part 7: Discipline, Behaviour and Exclusion
430.Following the Learning Behaviour report of the Practitioners’ Group on School Behaviour and Discipline, (October 2005, http://www.dfes.gov.uk/behaviourandattendance/about/learning_behaviour.cfm) the White Paper Higher Standards, Better Education for All (Cm 6677) set out a number of commitments by the Government for further improving standards of school discipline. This part of the Act carries forward those commitments in the White Paper on school discipline requiring primary legislation. That includes the establishment of a statutory power to enforce school discipline and more specific measures relating to excluded pupils and parental responsibility for the behaviour of children.
431.The provisions on enforcement of school discipline have been considerably developed since the White Paper was published, through a consultation paper and discussion with key stakeholders. As a result, the Act includes specific new provisions on detentions (replacing section 550B of the 1996 Act) and on items confiscated from pupils. In line with the consultation paper, the Act also re-enacts other existing legal provisions on the responsibilities of governing bodies for discipline and determination by the head teacher of a behaviour policy (section 61 of the 1998 Act) and on physical restraint of pupils (section 550A of the 1996 Act).
Section 88: Responsibility of governing body for discipline
432.This section defines the responsibilities of the governing body for establishing the principles shaping a school’s behaviour policy.
433.It re-enacts subsections (1) to (3) of section 61 of the 1998 Act with minor changes.
434.Subsection (1) requires the governing body to ensure that the school pursues policies to promote good behaviour.
435.Subsection (2) requires the governing body to make and review a written statement of general principles to guide the head teacher in determining measures to promote good behaviour. Where the governing body wants the behaviour policy to include particular measures or address particular issues, the section requires the governing body to notify the head teacher. It also enables the governing body to give the head teacher further guidance.
436.Before making or revising the statement of principles, subsection (3) requires the governing body to consult the head teacher; parents of pupils registered at the school; registered pupils; and any persons who work at the school that are considered appropriate to consult (this would include, for instance, the kitchen staff and caretaker, if the governing body felt that their input would be valuable).
437.Subsection (4) requires the governing body to have regard to national guidance when carrying out its functions under subsection (2). For schools in England that would be provided by the Secretary of State. For schools in Wales it would be the National Assembly for Wales.
438.Subsection (5) specifies the types of school to which sections 88 and 89 apply. These are all maintained schools (community; foundation; voluntary; community special; foundation special; maintained nursery), pupil referral units and non-maintained special schools. Pupil referral units are not explicitly mentioned in the legislation which this replaces though are within its ambit by virtue of regulations made in relation to them under primary legislation. Non-maintained special schools are an addition to the schools to which the existing legislation applies. This subsection also explains that “governing body” for a non-maintained special school means the proprietor of the school, the person or body of persons that manages the school.
Section 89: Determination by head teacher of behaviour policy
439.Section 89 defines the responsibilities of the head teacher for establishing and maintaining a behaviour policy for the school that promotes self-discipline, respect for others and proper regard for authority.
440.This section re-enacts with amendments subsections (4) to (7) of section 61 of the 1998 Act. The section includes provision that the head teacher, when determining the behaviour policy, must do so with a view to “securing that pupils complete any tasks reasonably assigned to them in connection with their education” in addition to the other considerations laid out in subsection (4) of 61 of the 1998 Act. The section also enables the head teacher to include in the behaviour policy reasonable measures to regulate the behaviour of pupils when they are off the school site or when they are not under the control or charge of a member of the school staff.
441.Subsection (1) requires the head teacher to determine measures that promote self-discipline and a proper regard for authority, encourage good behaviour and respect for others, prevent bullying, secure that tasks are completed, and generally secure an acceptable standard of behaviour by pupils. These measures constitute the school’s behaviour policy.
442.Subsection (2) requires the head teacher to follow the governing body’s statement of principles and have regard to any notification or guidance given by the governing body (see the note on section 88(2)).
443.Subsection (3) requires the head teacher to determine what standard of behaviour should be regarded as acceptable in so far as it is not determined by the governing body. Subsection (4) provides that the measures determined by the head teacher must include the making of rules and provision for disciplinary penalties.
444.Subsection (5) enables the head teacher to determine (to such an extent as is reasonable) measures to regulate the behaviour of pupils when they are not on school premises or under the control or charge of a member of the school staff. This would, for example, allow rules governing behaviour on the journey to and from school and during work experience placements.
445.Subsection (6) requires the head teacher to set out the behaviour policy in a written document and publicise it by making it generally known to staff, pupils and parents, in particular, by bringing it to their attention at least once a year.
Section 90: Meaning of “disciplinary penalty”
446.Subsection (1) defines “disciplinary penalty” for the purposes of this Chapter of the Act as a penalty imposed on a pupil by any school at which education is provided for him, where his conduct falls below the standard which could reasonably be expected of him because (for example) he fails to follow a school rule or an instruction given by a member of staff. The reference to any school at which education is provided for a pupil is intended to cover both the school a pupil normally attends and any other school he attends, for example for a particular course.
447.Subsection (2) makes it clear that “conduct” includes conduct off school premises and where the pupil is not under the control or charge of staff (so far as that is reasonable) and includes conduct which consists of a failure to comply with a disciplinary penalty previously imposed.
Section 91: Enforcement of disciplinary penalties: general
448.This section specifies the conditions that make lawful the imposition of a disciplinary penalty on a pupil at any school at which education is provided for him.
449.Subsection (1) explains that this section applies to any disciplinary penalty imposed on a pupil other than exclusion.
450.Subsections (2), (3), (4) and (5) specify the conditions that must be met for the imposition of a disciplinary penalty to be lawful. They are summarised below.
The penalty does not breach any statutory requirement or prohibition. This would, for example, prevent the imposition of a disciplinary penalty which would involve a breach of race or sex discrimination legislation.
The penalty is reasonable in all the circumstances (subsection (6) specifies issues that must be taken into account in deciding whether the imposition of a penalty is reasonable).
The decision to impose the penalty is made by a member of the staff of the school. Paid members of staff may impose a penalty unless the head teacher has decided they may not impose it. Unpaid members of staff (parent volunteers, for example) may not impose a penalty unless authorised by the head teacher to impose the penalty and where that authorisation is reasonable.
The decision to impose the penalty was made and any action taken on behalf of the school to implement the decision was taken on the school premises or elsewhere at a time when the pupil was under the lawful control or charge of a member of staff of the school (for example on an educational visit).
451.Subsection (6) specifies the considerations to be taken into account in deciding whether the imposition of a penalty is reasonable. They are:
whether the imposition of the punishment is proportionate in the circumstances of the case; and
any relevant personal characteristics of the pupil of which the person imposing the penalty is (or ought reasonably to be) aware, including the pupil’s age, any special educational needs and/or disability he may have and any religious requirements (for example dress) affecting him.
452.Subsection (7) states that, for the purposes of subsection (6) a pupil has a disability if he has a disability for the purposes of the Disability Discrimination Act 1995.
453.Subsection (8) states that a head teacher’s decisions on whether staff should be able to impose penalties on pupils may be made in relation to individual staff or groups of staff; in relation to an individual pupil or pupils; or in relation to an individual penalty or types of penalty. So a head teacher could, for example, decide that only teachers who are heads of year or heads of department could put pupils in detention or that a volunteer helping to supervise an educational visit should be able to withdraw privileges from pupils who misbehave on the visit.
454.Subsection (9) makes detention outside school sessions subject to the additional provisions in section 92.
455.Subsection (10) makes it clear that nothing in this section legitimises corporal punishment.
456.Subsection (11) has the effect that this section does not remove powers that heads and school staff have in addition to the powers conferred by this section. These may include powers conferred on them by the pupil’s parent.
457.Subsection (12) defines a “paid member of staff” as a member of staff who works at the school for pay under a contract of employment or a contract for services. The latter would include supply teachers provided by agencies. The section makes clear that the contract of employment or contract for services need not be made with the governing body or proprietor of the school (so that it includes local education authority employed staff that may be working at the school).
Section 92: Enforcement of disciplinary penalties: detention outside normal school sessions
458.This section specifies the conditions that make the detention of a pupil outside school sessions lawful. These are in addition to the conditions specified in section 91. It (together with section 91) replaces section 550B of the 1996 Act.
459.Subsection (1) provides that the section applies to a disciplinary penalty that consists of detention outside school sessions.
460.Subsections (2), (3) and (4) provide that, in relation to such a disciplinary penalty, further conditions must be met in addition to the conditions specified in section 91. In the case of a detention during a break between school sessions on the same day (for example, a detention at lunchtime), the head teacher must have made the school's policy on detention outside of school sessions known within school and to parents. In other cases, for example evening or weekend detention, three further conditions apply in addition to this, namely that the pupil is below the age of 18, that the detention is on a "permitted day of detention" and that the pupil's parent has been given at least 24 hours' notice.
461.Subsection (5) has the effect that in considering whether the imposition of a detention is reasonable regard must be had (in addition to the factors specified in section 91(6)) to whether suitable travelling arrangements can reasonably be made by the pupil’s parent.
462.Subsection (6) enables the school to give a parent the required 24 hours’ notice by any effective method. (This requirement would not apply to detentions in breaks between sessions, such as lunch times.)
463.Subsection (7) has the effect that this section does not remove powers that heads and school staff have in addition to the powers conferred by this section. These may include powers conferred on them by the pupil’s parent.
464.Subsection (8) defines a “permitted day of detention” as:
a school day (other than one on which the school has given the pupil leave of absence);
a Saturday or Sunday during the school term (other than weekends preceding or following half-term breaks); and
a non-teaching work day (more commonly known as a “training day” or “INSET day”) that may fall in or out of the school term (other than those excluded in regulations).
Section 93: Power of members of staff to use force
465.This section enables a member of staff to use reasonable force to prevent a pupil from committing an offence, causing personal injury, damaging property or doing something that prejudices discipline at the school.
466.The section re-enacts section 550A of the 1996 Act with minor changes.
467.Subsection (1) enables a member of staff to use reasonable force in certain defined circumstances: to prevent an offence or the continuation of one; to prevent personal injury or damage to property; and to prevent anything which prejudices the maintenance of good order and discipline at the school. Thus, for example, reasonable force (such as leading by the arm) might be used to enforce an instruction for a pupil to leave a class room (in circumstances where any of paragraphs (a) to (c) of subsection (1) apply).
468.Subsection (2) specifies that the power to use force extends to members of staff at any school at which the pupil is receiving education (this allows for situations where, for example, a pupil is receiving education at a school other than the school which he normally attends).
469.Subsection (3) restricts the use of this power to when both the member of staff and the pupil are on school premises or in other situations where the member of staff has lawful control or charge of the pupil involved (for example on an educational visit).
470.Subsection (4) makes it clear that subsection (1) does not legitimise corporal punishment.
471.Subsection (5) has the effect that the power provided by subsection (1) does not remove any powers that heads and school staff may have in addition to the powers conferred by the section. These include common law rights of self-defence.
472.Subsection (6) specifies that an “offence” covers behaviour by younger pupils that would be an offence if they had attained the age of criminal responsibility.
Section 94: Defence where confiscation lawful
473.This section protects staff against civil or criminal liability where a lawfully confiscated item is retained or disposed of.
474.Subsection (1) specifies that this section applies where something a pupil has with him or in his possessions is seized and retained or disposed of.
475.Subsection (2) protects any person who seizes, retains or disposes of such an item from liability in any proceedings if he proves that the seizure, retention or disposal was lawful.
476.Subsection (3) provides that nothing is this section applies where an item is seized under section 550AA of the 1996 Act. The Violent Crime Reduction Act 2006 contains provision to insert a new section 550AA into the 1996 Act dealing with the seizure of knives, blades or offensive weapons or any other thing which there are reasonable grounds for suspecting is evidence in relation to an offence, found in the course of a search of pupils. The new section 550AA makes provision for what is to be done with an item seized under that section.
477.Subsection (4) has the effect that this section does not prevent anyone using any other defence (for example under common law) that they would be entitled to use in any civil or criminal action.
Section 95: Interpretation of Chapter 1
478.This section directs the reader to section 90 for a definition of “disciplinary penalty”. It defines “member of staff” for the purposes of this Chapter as any teacher who works at the school and any other person who, with the authority of the head teacher, has lawful control or charge of pupils at the school. This may include members of the support staff of a school. It would also include unpaid volunteers who are put in charge of pupils (for example on an educational visit). The section also specifies that “possessions”, in relation to a pupil, include any goods over which he appears to have control.
Section 96: Repeals consequential on provisions of Chapter 1
479.This section repeals the legislation that sections in this Chapter replace. That includes existing legislation on governing bodies’ responsibilities for discipline, behaviour policies, detention and physical intervention.
Section 97: Parenting contracts
480.Section 19 of the Anti-social Behaviour Act 2003 makes provision for schools and local education authorities to enter into voluntary “parenting contracts” (as defined in the section) with parents in cases of exclusion from school or truancy. This section amends section 19 to enable contracts to be used in cases of misbehaviour where the pupil has not been excluded.
481.Subsection (2) inserts subsection (1A) which provides an alternative trigger to enable schools and local education authorities to enter, in certain circumstances, into parenting contracts with parents where the pupil has not been excluded. These circumstances are where the school or local education authority have reason to believe that a pupil has engaged in behaviour which:
has caused or is likely to cause significant disruption to the education of other pupils or significant detriment to the welfare of that pupil or other pupils or to the health or safety of any staff; or
forms part of a pattern of behaviour which (if continued) could lead to the pupil being excluded.
482.Subsection (2) also inserts subsection (1B) which makes clear that such behaviour can take place at school, or elsewhere if reasonable for the school to regulate it.
Section 98: Parenting orders in cases of exclusion or misbehaviour
483.Section 20 of the Anti-social Behaviour Act 2003 makes provision for local education authorities to apply to magistrates’ courts for parenting orders in cases of exclusion from school. This section amends section 20 to also enable orders to be applied for where a pupil has seriously misbehaved but not been excluded and to allow schools to apply for orders.
484.Subsection (3) enables a ‘relevant body’ to apply for an order. A relevant body is defined in subsection (9) of section 20, inserted by subsection (6) of this section, as a local education authority and the governing body of a maintained school, or the proprietor of an Academy, a city technology college, or a city college for the technology of the arts, at which the person concerned is a pupil or from which he has been excluded.
485.Subsection (4) of this section inserts subsections (2A) and (2B) into section 20, which add a further ground on which an application for a parenting order can be made. This is where the pupil has behaved in such a way that he could have been excluded permanently or for a fixed period and any other conditions specified in regulations are met. The new subsection (2A) makes clear that any policy that the school might have to restrict exclusions or to restrict exclusions in certain circumstances is not relevant in this context; the relevant factor is the seriousness of the misbehaviour.
486.Subsection (5) of this section inserts subsection (3) into section 20. It says that the court can make a parenting order under section 20 if it is satisfied that the type of behaviour described in subsection (4) has occurred and that making the order would be desirable in the interests of improving the pupil’s behaviour.
Section 99: Parenting contracts and parenting orders: further provisions
487.Subsection (2) amends section 21 of the Anti-social Behaviour Act 2003. This means that when a court is considering whether to grant a parenting order for misbehaviour it must take into account any previous failure by the parent to attend a reintegration interview (see section 102).
488.Subsection (3) inserts section 22A into the Anti-social Behaviour Act. It enables regulations to be made by the Secretary of State to make provision for which local education authority should have the power to enter into a parenting contract or apply for an order when the child lives in one authority but attends school in another; which school should have the power to apply for an order where the pupil has been permanently excluded; requirements to consult and share information; and how the costs associated with a parenting order should be met.
Section 100: Duty of governing body or proprietor where pupil excluded for fixed period
489.This section introduces a duty for schools to provide suitable full-time education to temporarily excluded pupils.
490.In subsection (1) the section imposes a duty to that effect. Currently there is no obligation for schools to provide any education to excluded pupils. They are expected to send work home for the pupil to complete. This subsection also gives power to the Secretary of State to prescribe exceptions to this duty.
491.Subsection (2) states that regulations will prescribe the day from which such full-time education must be provided.
492.Subsection (3) prescribes that such education may be provided on the premises of the excluding school only if it is provided in pursuance of arrangements with at least one other school for the education of excluded pupils from both that and that other or those other schools.
493.Subsection (4) provides that the governing body of the school must have regard to the Secretary of State’s guidance in making arrangements for educating excluded pupils.
494.Subsection (5) defines governing body to include the proprietor of an Academy, city technology college (CTC) and a city college for the technology of the arts (CCTA).
Section 101: Duty of local education authority in relation to excluded pupils
495.This section amends section 19 of the 1996 Act to require local education authorities to provide permanently excluded pupils with suitable full-time education. Currently, section 19 requires local education authorities to make suitable education available to children who are out of school for any reason. However, section 19 does not specify that such education should be full-time in the case of excluded pupils and this section requires this. It provides power for the Secretary of State to prescribe exceptions to this duty.
496.The section also requires local education authorities to make suitable full-time education available to pupils excluded for fixed periods from a pupil referral unit.
Section 102: Reintegration interviews
497.Subsection (1) introduces a new power which enables regulations to be made by the Secretary of State, and the National Assembly for Wales:
specifying the circumstances in which maintained schools, Academies, city technology colleges and city colleges for the technology of the arts must arrange reintegration interviews with the parents of temporarily excluded pupils; and
specifying the procedures and time limits connected with such an interview.
498.The purpose of such an interview is to engage with the parent and so to assist the reintegration of a pupil excluded for a fixed period and to promote an improvement in his behaviour. Section 99 amends section 21 of the Anti-social Behaviour Act 2003 to say that a court must take into account the unreasonable failure by a parent to attend a reintegration interview when deciding whether to make a parenting order.
Section 103: Duty of parent in relation to excluded pupil
499.This section applies where a pupil is excluded from a relevant school in England for a fixed period or permanently and notice under section 104 has been given to a parent of the pupil.
500.Subsection (2) imposes a duty on the parent to ensure that the excluded pupil is not present in a public place during normal school hours on a day which is one of the first five school days to which the exclusion relates and is specified in the notice under section 104 (or, in the case of an exclusion for a fixed period of 5 days or less, on any of the days to which the exclusion relates which is specified in the notice).
501.Subsection (3) provides that the parent commits an offence if the parent fails in this duty.
502.Under subsection (4) the parent has a defence if he shows that he had a reasonable justification for the failure.
503.Subsection (5) sets out the sanction if found guilty of the offence. This will be a fine not exceeding level 3 on the standard scale.
504.Subsection (6) provides that only a local education authority can institute proceedings against the parent.
505.Subsection (7) provides that if the child is excluded before the start of the afternoon session, that day will count as the first day of the exclusion
506.Subsection (8) defines “parent”, “public place” and “school hours” for the purposes of the section.
Section 104: Notice to parent relating to excluded pupil
507.This section relates to the notice the parent will receive from the school when their child is excluded. Subsection (1) requires the head teacher to give the parent of an excluded pupil a notice containing prescribed information.
508.Subsection (2) requires the notice to include information about the exclusion, specifying the day on which full-time education will be provided. Subsection (3) says that the notice must set out the days on which the parent is subject to the duty set out in section 103 to ensure that the pupil is not in a public place during school hours. That responsibility will not exceed five days.
509.Subsection (6) ensures that the notice can be served by any effective method (for example, by sending it home with the child) and does not have to be served by one of the methods set out in section 572 of the 1996 Act.
510.Subsection (7) allows regulations to be made enabling the notice issued to the parent under this section to be combined with the notice the parent receives under section 52(3) of the 2002 Act when their child is excluded.
Section 105: Penalty notice in respect of presence of excluded pupil in public place
511.This allows for a penalty notice to be given to a parent who appears to be guilty of an offence under section 103. The penalty notice will allow a parent to pay a penalty as a way of discharging any liability for the section 103(3) offence of failing to ensure that their child is not present in a public place.
512.Subsection (6) allows for regulations to permit the local education authority to retain the revenue they receive from penalty notices to cover the costs of enforcement; and requires it to remit any surplus to the Secretary of State.
513.Only authorised persons may issue a penalty notice. These are defined in subsection (7). The definition of “authorised staff member” is the same as that in section 444B of the 1996 Act.
Section 106: Penalty notices: supplemental
514.This section provides for the Secretary of State to make regulations about the administration of penalty notices. The section enables regulations to specify the form and content of penalty notices; the amount of the penalty, time limits for its payment and to whom it should be paid; how it may be paid and which persons may issue it.
Section 107: Penalty notices: amendments of Police Reform Act 2002
515.Section 107 provides that Police Community Support Officers will be able to issue fixed penalty notices to parents of excluded pupils found in a public place during the first five days of exclusion in the same way that they can issue fixed penalty notices to truants’ parents.
Section 108: Removal of excluded pupils to designated premises
516.This section amends section 16 of the Crime and Disorder Act 1998 to allow police to remove excluded pupils from a public place to a designated place. At the moment police have the power to remove pupils who should be at school (“truants”) from a public place to either their school or premises designated by the local education authority and notified to the police. The effect of this amendment would be to allow police to remove an excluded pupil from a public place to premises designated by the local education authority and notified to the police (for example the offices of the local education authority).
517.The section also amends Schedule 4 to the Police Reform Act 2002 so as to enable community support officers to exercise the new power. The Police and Justice Act 2006 adds to Schedule 4 to the Police Reform Act 2002 the paragraph 4C being amended.
Section 109: Failure to secure school attendance
518.Section 109 makes various amendments of section 444 of the 1996 Act, which sets out offences that may be committed by a parent whose child fails to attend regularly at a school at which he is a registered pupil. Section 444 as it stands provides for two offences: the offence in subsection (1) of section 444 does not require proof that the parent is aware that the child is not attending regularly, while the more serious offence in subsection (1A) of the section does require such proof.
519.Subsections (1) and (2) of section 109 make amendments of section 444 of the 1996 Act to ensure that where a parent is charged with an offence under subsection (1A) of that section, the defence of reasonable justification is subject to a reverse legal burden of proof. In other words, it is for the parent to prove, on a balance of probabilities, that the parent has a reasonable justification for failing to ensure the child’s attendance.
520.These amendments are intended, for future cases, to reverse the effect of the decision of the High Court on 15th March 2006 in R (on the application of P) v Liverpool City Magistrates  EWHC 887 (Admin) in which it was held that the words “without reasonable justification” in subsection (1A) of section 444 of the 1996 Act created an evidential burden, that is to say, the parent had to produce credible evidence of reasonable justification. It would then be for the prosecution to prove that the parent did not have a reasonable justification. Before this decision it had been generally understood that the words concerned created a reverse legal burden of proof. The amendments made by this section reverse, for future cases, the effect of the High Court decision.
521.Subsections (3) to (5) and (7) of section 109 make similar amendments in relation to the defence relating to the child’s sickness or any other unavoidable cause. These amendments relate to the offence in subsection (1) of section 444 as well as the offence in subsection (1A).
522.In addition, subsection (6) of section 109 alters the wording of the defence in section 444(6) (where the child is of no fixed abode and the parent's trade or business requires travel from place to place) to bring it into line with the wording in the new subsections (1B) and (2A) (which is more consistent with the wording generally used in new legislation). There is no change of substance here, since section 444(6) already provides for a reverse legal burden.
523.The section also inserts a new subsection (7A) into section 444 of the 1996 Act so that it is an offence against subsection (1) or (1A) for a parent to fail to secure the attendance of a pupil excluded for a fixed period where alternative provision has been arranged for him by the appropriate authority at the same school. The schools covered are a local authority maintained school, a pupil referral unit, an Academy, city technology college or city college for the technology of the arts. New subsection (7B) defines the appropriate authority in relation to each such type of school. For a maintained school it is the governing body, for a pupil referral unit the local education authority, and for the other schools the proprietor.
524.By subsections (9) and (10) the section also amends section 444ZA of the 1996 Act and section 16 of the Crime and Disorder Act 1998 respectively to bring the language used for reverse legal burdens of proof in those sections into line with the language used in section 444 as amended by this section.
525.Subsection (11) provides that the amendments made by section 109 do not apply to any failure to attend at a school occurring before the commencement of the amendment in question.
Section 110: Sums received under section 444A of 1996 Act
526.This section substitutes subsection (6) of section 444A of the 1996 Act allowing local education authorities to use receipts from penalty notices for any of their functions specified in regulations. Any sums not so used must be paid to the Secretary of State.
Section 111: Meaning of “maintained school" and "relevant school" in Chapter 2
527.This section defines "maintained schools" and "relevant school" for the purposes of Chapter 2 of Part 7.