The Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2008

Citation, commencement and application

1.—(1) These Regulations may be cited as the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2008 and come into force on 1st April 2008.

(2) These Regulations apply only in relation to England.

Interpretation

2.—(1) In these Regulations—

“the 2002 Act” means the Education Act 2002;

“appeal panel” has the meaning given in regulation 7(2);

“management committee” means, in relation to a pupil referral unit, the committee established by the local education authority pursuant to the Education (Pupil Referral Units) (Management Committees etc.) (England) Regulations 2007(1);

“relevant person” means—

(a)

in relation to a pupil under the age of 18 years, a parent of the pupil;

(b)

in relation to a pupil who has attained that age, the pupil.

(2) Any exclusion for a fixed period consisting of the period between the morning and afternoon school sessions shall for the purposes of these Regulations be taken as equivalent to half a school day.

Responsible body

3.  For the purposes of section 52(5) of the 2002 Act, the management committee of a pupil referral unit is prescribed as the responsible body.

Power of teacher in charge to exclude pupils

4.  The teacher in charge of a pupil referral unit may not exercise the power under section 52(2) of the 2002 Act so as to exclude a pupil from the pupil referral unit for one or more fixed periods if, as a result, the pupil would be excluded for more than 45 school days in any one school year.

Exclusion of pupils : duty to inform parents, management committee and local education authority

5.—(1) Where the teacher in charge of a pupil referral unit excludes any pupil for a fixed period, the teacher in charge shall, as soon as practicable, inform the relevant person of the following matters—

(a) the period of the exclusion;

(b) the reasons for the exclusion;

(c) that the relevant person may make representations about the exclusion to the management committee; and

(d) the means by which such representations may be made.

(2) Where the teacher in charge of a pupil referral unit excludes any pupil permanently or decides that any exclusion of a pupil for a fixed period should be made permanent, the teacher in charge shall, as soon as is practicable—

(a) inform the relevant person, the local education authority and the management committee of the decision and the reasons for it;

(b) if the pupil resides in the area of a different local education authority, in addition, inform that local authority of the decision and the reasons for it; and

(c) give the relevant person notice in writing of the decision stating the following matters—

(i) the reasons for the decision;

(ii) that the relevant person may make representations about the decision to the management committee;

(iii) the means by which such representations shall be made.

(3) Where the teacher in charge of a pupil referral unit excludes any pupil for a fixed period in circumstances where the pupil would, as a result of the exclusion—

(a) be excluded from the pupil referral unit for a total of more than five school days in any one term, or

(b) lose an opportunity to take any public examination,

the teacher in charge shall, as soon as practicable, inform the local education authority and the management committee of the period of the exclusion and the reasons for it.

(4) The teacher in charge shall in each relevant term—

(a) inform the management committee and local education authority of any relevant exclusions which do not fall within paragraphs (2) or (3) and in respect of each such exclusion provide details of the period of the exclusion and the reason for it; and

(b) unless the teacher in charge has already done so, inform the management committee and the local education authority of any exclusions occurring during any previous terms and in respect of each of those exclusions provide details of the period of the exclusion and the reason for it.

(5) In paragraph (4)—

(a) “relevant exclusion”, in relation to a relevant term, means an exclusion which first takes effect in that term;

(b) “relevant term” means—

(i) where in the school year of a pupil referral unit there are three terms or fewer, each term;

(ii) where in the school year of a pupil referral unit there are more than three terms, any term during which a reference date falls.

(6) In paragraph (5), “reference date” means 31st December, Easter Monday and 31st July.

(7) For the purposes of paragraph (5)(b)(ii), if a reference date does not fall during a term, the reference to the term during which the reference date falls is to be taken as a reference to the term which last preceded that date.

Functions of management committee in relation to excluded pupils

6.—(1) Paragraphs (2) to (6) apply where the management committee is informed under regulation 5(2) or (3) of—

(a) the permanent exclusion of a pupil;

(b) a decision that any exclusion of a pupil should be made permanent;

(c) the exclusion of any pupil where that pupil would, as a result of the exclusion—

(i) be excluded from the pupil referral unit for a total of more than fifteen school days in any one term, or

(ii) lose an opportunity to take a public examination; or

(d) the exclusion of any pupil where—

(i) the pupil would as a result of the exclusion be excluded from the pupil referral unit for a total of more than five school days in any one term, and

(ii) the relevant person makes representations to the management committee in pursuance of regulation 5(1)(c).

(2) The management committee shall in any such case—

(a) consider the circumstances in which the pupil was excluded;

(b) consider any representations about the exclusion made to the management committee—

(i) by the relevant person in pursuance of regulation 5(1)(c), or

(ii) by the local education authority;

(c) allow each of the following, namely—

(i) the relevant person, and

(ii) an officer of the local education authority nominated by the authority,

to attend a meeting of the management committee and to make oral representations about the exclusion; and

(d) consider any oral representations so made.

(3) Subject to paragraph (7), the management committee shall consider whether or not the pupil should be reinstated; and where they consider that the pupil should be reinstated, they shall in addition consider whether the pupil should be reinstated immediately, or reinstated by a particular date.

(4) Subject to paragraph (7), if the management committee decide that the pupil should be reinstated they shall immediately—

(a) give the appropriate direction to the teacher in charge, and

(b) inform the relevant person and the local education authority of their decision.

(5) The teacher in charge shall comply with any direction of the management committee for the reinstatement of a pupil who has been excluded from the pupil referral unit.

(6) If the management committee decide that the pupil should not be reinstated, they shall immediately—

(a) inform the relevant person, the teacher in charge and the local education authority of their decision, and

(b) in addition, in the case of a pupil who is permanently excluded, give the relevant person notice in writing referring to that decision and stating the following matters—

(i) the reasons for the decision,

(ii) his right to appeal against the decision,

(iii) the person to whom the relevant person should give any notice of appeal,

(iv) that any notice of appeal must contain the grounds of appeal, and

(v) the last date on which an appeal may be made.

(7) Where the period of the exclusion has expired before the management committee considers the exclusion pursuant to paragraph (3), the management committee shall consider whether the exclusion was appropriate and shall notify the teacher in charge, the relevant person and the local education authority of their decision.

(8) Where—

(a) the teacher in charge of a pupil referral unit excludes a pupil in a case where paragraphs (2) to (6) do not apply, and

(b) the management committee receive any representations made in pursuance of regulation 5(1)(c) by the relevant person about the exclusion,

they shall consider those representations.

(9) Subject to paragraph (10), the management committee shall take each of the steps referred to in paragraph (2)—

(a) not earlier than 6 school days; and

(b) not later than 15 school days in the case of a permanent exclusion or a fixed period exclusion of more than 15 school days; or

(c) not later than 50 school days, in the case of an exclusion for a fixed period of 15 school days or fewer,

after the date on which they were informed of the matters referred to in regulation 5(2) or (3).

(10) Where a pupil has been excluded in circumstances in which the pupil would, as a result of the exclusion, lose an opportunity to take a public examination, the management committee shall, so far as it is practical for them to do so, take each of the steps referred to in paragraph (2) before the date on which the pupil is due to take the examination and in any event, no later than is required by paragraph (9).

(11) The management committee shall not be relieved of the duty to take any step referred to in paragraph (2) because it has not been taken within the periods specified in paragraphs (9) and (10).

(12) The notice in writing referred to in paragraph (6)(b) may be given either—

(a) by delivering it to the relevant person’s last known address, or

(b) by properly addressing, pre-paying and sending by first class post to the relevant person’s last known address a letter containing the notice.

Appeals against permanent exclusion of pupils

7.—(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the management committee under regulation 6 not to reinstate a pupil who has been permanently excluded from a pupil referral unit maintained by the authority.

(2) The Schedule to these Regulations has effect in relation to the making and hearing of appeals pursuant to arrangements made under paragraph (1); and in these Regulations “appeal panel” means an appeal panel constituted in accordance with paragraph 2 of the Schedule.

(3) In making any decision on an appeal pursuant to arrangements made under paragraph (1), an appeal panel shall have regard both to the interests of the excluded pupil and to the interests of other pupils and persons working at the pupil referral unit (including persons working at the unit voluntarily).

(4) An appeal panel shall not determine that a pupil is to be reinstated merely because of the failure of any person to comply with any procedural requirement imposed by or under these Regulations in relation to the decision under section 52(2) of the 2002 Act in respect of which the appeal is brought.

(5) The decision of an appeal panel on an appeal pursuant to arrangements under paragraph (1) shall be binding on the relevant person, the teacher in charge and the local education authority.

(6) On such an appeal the appeal panel may—

(a) uphold the decision not to reinstate the pupil;

(b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction), or

(c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction.

Exclusion of pupils : guidance

8.—(1) This regulation applies to any functions of—

(a) the teacher in charge of a pupil referral unit,

(b) the management committee,

(c) a local education authority, or

(d) an appeal panel,

under section 52(2) of the 2002 Act or these Regulations.

(2) In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.

Exclusions : standard of proof

9.  Where it falls to —

(a) the teacher in charge of a pupil referral unit, in exercise of the power conferred by section 52(2) of the 2002 Act,

(b) the management committee, in exercise of functions under regulation 6, or

(c) an appeal panel, in exercise of functions under regulation 7,

to establish any fact, any question as to whether that fact is established shall be decided on a balance of probabilities.

Information

10.  A local education authority shall give to the Secretary of State at his request any information they have received from a teacher in charge under regulation 5.

Revocation and transitional provisions

11.—(1) The following provisions are revoked.

(2) Subject to paragraph (6), the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2002(2).

(3) Regulations 5 and 10 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004(3).

(4) Regulations 2(2), 4 and 5(3) of the Education (Pupil Exclusions and Appeals) (Miscellaneous Amendments) (England) Regulations 2006(4).

(5) Regulation 10(2) of the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007(5).

(6) Where a pupil is excluded from a pupil referral unit before 1st April 2008, the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2002 shall continue to have effect in relation to that exclusion.

Kevin Brennan

Parliamentary Under-Secretary of State

Department for Children, Schools and Families

26th February 2008