The Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003

Welsh Statutory Instruments

2003 No. 3246 (W.321)

EDUCATION, WALES

The Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003

Made

9th December 2003

Coming into force

9th January 2004

In exercise of the powers conferred on the National Assembly for Wales by sections 52(3), (4) and (5), 210(7) and 214 of the Education Act 2002(1), and after consultation with the Council on Tribunals in accordance with section 8 of the Tribunals and Inquiries Act 1992(2), the National Assembly for Wales makes the following Regulations:

Name, commencement and application E+W

1.—(1) These Regulations are called the Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (Wales) Regulations 2003 and come into force on 9th January 2004.

(2) These Regulations apply in relation to Wales.

Commencement Information

I1 Reg. 1 in force at 9.1.2004, see reg. 1(1)

Interpretation E+W

2.—(1) In these Regulations —

“the 2002 Act” (“Deddf 2002”) means the Education Act 2002;

“the 2003 Regulations” (“Rheoliadau 2003”) means the Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003(3);

“the relevant person” (“y person perthnasol”) means —

(a)

in relation to a pupil who was aged 10 or below on the day before the beginning of the school year in which that pupil is excluded, a parent of his or hers;

(b)

in relation to a pupil of compulsory school age who was aged 11 or above on the day before the beginning of the school year in which that pupil is excluded, both that pupil and a parent of his or hers;

(c)

in relation to a pupil who is above compulsory school age, the pupil himself or herself.

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

Commencement Information

I2 Reg. 2 in force at 9.1.2004, see reg. 1(1)

Responsible Body E+W

3.  For the purposes of section 52(5) of the 2002 Act the local education authority which maintains a pupil referral unit(4) is prescribed as the responsible body in relation to a fixed period exclusion from that pupil referral unit.

Commencement Information

I3 Reg. 3 in force at 9.1.2004, see reg. 1(1)

Power of teacher in charge to exclude pupils E+W

4.  A 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.

Commencement Information

I4 Reg. 4 in force at 9.1.2004, see reg. 1(1)

Exclusion of pupils: duty to inform the relevant person and local education authority E+W

5.—(1) Where the teacher in charge of a pupil referral unit excludes any pupil for a fixed period, the teacher in charge must without delay take reasonable steps to inform the relevant person of the following matters —

(a) the period of exclusion;

(b) the reasons for exclusion;

(c) that he or she may make representations about the exclusion to the local education authority and that the excluded pupil may also make representations about the exclusion to the local education authority where the pupil is not the relevant person; 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 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 must without delay inform the local education authority of the period of the exclusion and the reasons for it.

(3) 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 must without delay —

(a) take reasonable steps to inform the relevant person and the local education authority of the decision and the reasons for it; and

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

(i) the reasons for the decision,

(ii) his or her right to appeal against the decision,

(iii) the person to whom he or she 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.

(4) The notice in writing referred to in paragraph (3)(b) may be given either —

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

(b) by sending it by first class post in a properly addressed, pre-paid envelope to the relevant person’s last known address.

(5) The teacher in charge must in each term inform the local education authority of any exclusions which do not fall within paragraphs (2) or (3) and in respect of each such exclusion must provide details of the period of the exclusion and the reason for it.

Commencement Information

I5 Reg. 5 in force at 9.1.2004, see reg. 1(1)

Exclusion of pupils: provision of information to the local education authority and the National Assembly for Wales E+W

6.—(1) The teacher in charge must in each term provide the following information on each exclusion to the local education authority —

(a) the excluded pupil’s name, age, [F1 date of birth,] gender and ethnic group;

(b) whether the excluded pupil has a statement of special educational needs maintained by a local education authority under section 324 of the Education Act 1996(5), is being assessed for such a statement or is receiving support through School Action or School Action Plus pursuant to “The Special Educational Needs Code of Practice for Wales(6)” which was issued under section 313 of the Education Act 1996 and came into force on 1st April 2002;

(c) whether the excluded pupil is looked after by a local authority;

(d) the period of the exclusion; and

(e) the reason for the exclusion.

(2) A local education authority must provide to the National Assembly for Wales at its request any information they have received from a teacher in charge under regulation 5(5) and 6(1).

Textual Amendments

F1 Words in reg. 6(1)(a) inserted (1.9.2004) by The Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004 (S.I. 2004/1805), regs. 1(1), 4

Commencement Information

I6 Reg. 6 in force at 9.1.2004, see reg. 1(1)

Functions of local education authority in relation to pupils excluded for a fixed period E+W

7.—(1) Paragraphs (2) to (6) apply where the local education authority are informed under regulation 5(2) of the exclusion of any pupil for a fixed period, and the circumstances are that the pupil would, as a result of the exclusion —

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

(b) lose an opportunity to take a public examination.

(2) The local education authority must in any such case —

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

(b) consider any representations about the exclusion made to the local education authority —

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

(ii) by the excluded pupil where the pupil is not the relevant person in pursuance of regulation 5(1)(c), and

(iii) by the teacher in charge of the pupil referral unit;

(c) allow each of the following, namely —

(i) the relevant person,

(ii) the excluded pupil where the pupil is not the relevant person, and

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

to attend a meeting with the local education authority and to make oral representations about the exclusion; and

(d) consider any oral representations so made.

[F2 (3) The local education authority must consider whether or not the pupil should be reinstated and they must in addition consider whether he or she should be reinstated immediately or reinstated by a particular date and whether it would not be practical for the teacher in charge to comply with a direction requiring the reinstatement of the pupil.]

(4) If the local education authority decide that the pupil should be reinstated, they must[F3 , unless they consider that it would not be practical for the teacher in charge to comply with a direction requiring the reinstatement of the pupil,] without delay —

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

(b) inform the relevant person of their decision.

(5) The teacher in charge must comply with any direction of the local education authority for the reinstatement of a pupil who has been excluded from the pupil referral unit.

(6) If the local education authority decide that the pupil should not be reinstated [F4 , or, having decided that the pupil should be reinstated, decide not to give a direction to the teacher in charge requiring the reinstatement of the pupil], they must without delay inform the relevant person and the teacher in charge of their decision and the reasons for it.

(7) Where —

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

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

they must consider those representations.

(8) Subject to paragraph (9), the local education authority must take each of the steps referred to in paragraph (2) —

(a) not earlier than six school days; and

(b) not later than 15 school days, in the case of an exclusion for a fixed period 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).

(9) Where a pupil has been excluded for a fixed period in circumstances in which he or she would, as a result of the exclusion, lose an opportunity to take a public examination, the local education authority must (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 (8).

(10) The local education authority is not 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 (8) and (9).

Textual Amendments

F2 Reg. 7(3) substituted (1.9.2004) by The Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004 (S.I. 2004/1805), regs. 1(1), 6(1)

F3 Words in reg. 7(4) inserted (1.9.2004) by The Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004 (S.I. 2004/1805), regs. 1(1), 6(2)

F4 Words in reg. 7(6) inserted (1.9.2004) by The Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004 (S.I. 2004/1805), regs. 1(1), 6(3)

Commencement Information

I7 Reg. 7 in force at 9.1.2004, see reg. 1(1)

Appeals against permanent exclusion of pupils E+W

8.—(1) A local education authority must make arrangements for enabling the relevant person to appeal against any decision of the teacher in charge under section 52(2) of the 2002 Act to permanently exclude a pupil from a pupil referral unit maintained by the authority.

(2) The Schedule to the 2003 Regulations has effect, with the modifications prescribed in the Schedule to these Regulations, in relation to the making and hearing of appeals pursuant to arrangements made under paragraph (1); and in paragraphs (3) to (5) “appeal panel” means an appeal panel constituted in accordance with paragraph 2 of the Schedule to the 2003 Regulations as modified.

(3) An appeal panel must 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 against which the appeal is brought.

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

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

(a) uphold the exclusion;

(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 or her reinstatement, but that it would otherwise have been appropriate to give such a direction.

Commencement Information

I8 Reg. 8 in force at 9.1.2004, see reg. 1(1)

Exclusion of pupils: guidance E+W

9.  This regulation applies to any functions of —

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

(b) a local education authority, or

(c) an appeal panel constituted in accordance with paragraph 2 of the Schedule to the 2003 Regulations as modified,

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

(2) In discharging any such function, such a person or body must have regard to any guidance given from time to time by the National Assembly for Wales.

Commencement Information

I9 Reg. 9 in force at 9.1.2004, see reg. 1(1)

[F5 Exclusions — standard of proof E+W

9A.   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 local education authority, in exercise of functions under regulation 7, or

(c) an appeal panel constituted in accordance with paragraph 2 of the Schedule to the 2003 Regulations as modified, in exercise of functions under regulation 8,

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

Textual Amendments

F5 Reg. 9A inserted (1.9.2004) by The Education (Pupil Exclusions and Appeals) (Wales) (Miscellaneous Amendments) Regulations 2004 (S.I. 2004/1805), regs. 1(1), 8

Revocation E+W

10.—(1) Subject to paragraph (2) the Education (Pupil Referral Units) (Appeals against Permanent Exclusion) (Wales) Regulations 2003(7) are revoked.

(2) Nothing in paragraph (1) is to affect the continued application of those Regulations by virtue of regulation 7 of the Education Act 2002 (Transitional Provisions) (No.2) (Wales) Regulations 2003(8) (pupils excluded before 9th January 2004).

Commencement Information

I10 Reg. 10 in force at 9.1.2004, see reg. 1(1)

Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998(9)

D. Elis-Thomas

The Presiding Officer of the National Assembly

9th December 2003

Regulation 8

SCHEDULE E+W MODIFICATIONS OF THE SCHEDULE TO THE EDUCATION (PUPIL EXCLUSIONS AND APPEALS) (MAINTAINED SCHOOLS) (WALES) REGULATIONS 2003

1.  For paragraph 1(1) there is substituted — E+W

“1.— (1) No appeal under regulation 8(1) against a decision to permanently exclude a pupil may be made after the fifteenth school day after the day on which the relevant person is given notice in writing under regulation 5(3)(b).”

Commencement Information

I11 Sch. para. 1 in force at 9.1.2004, see reg. 1(1)

2.  In paragraph 1(3) for the words “not to reinstate” there is substituted the words “to permanently exclude”. E+W

Commencement Information

I12 Sch. para. 2 in force at 9.1.2004, see reg. 1(1)

3.  For “regulation 7(1)” in each place where it occurs, there is substituted “regulation 8(1)”. E+W

Commencement Information

I13 Sch. para. 3 in force at 9.1.2004, see reg. 1(1)

4.  For paragraph 2(7) there is substituted — E+W

“(7) The following persons are disqualified for membership of an appeal panel —

(a) any member of the local education authority or of the management committee (where one exists) of the pupil referral unit in question;

(b) the teacher in charge of, or any teacher at, the pupil referral unit in question or any person who has held any such position within the previous five years;

(c) any person employed by the local education authority, other than a person employed as a head teacher or a teacher;

(d) any person who has, or at any time has had, any connection with —

(i) the local education authority or the pupil referral unit, or with any person within paragraph (b) or (c), or

(ii) the pupil in question or the incident leading to his or her exclusion,

of a kind which might reasonably be taken to raise doubts about his or her ability to act impartially.”.

Commencement Information

I14 Sch. para. 4 in force at 9.1.2004, see reg. 1(1)

5.  For paragraph 10(2) there is substituted — E+W

“(2) The panel must also allow —

(a) the teacher in charge to make written representations, to be represented and to appear and make oral representations, and

(b) the local education authority to make written representations in addition to the statement the authority is required to submit to the panel under sub-paragraph (1), to be represented and to appear and make oral representations.”.

Commencement Information

I15 Sch. para. 5 in force at 9.1.2004, see reg. 1(1)

6.  In paragraph 14(a) “, the governing body” is omitted. E+W

Commencement Information

I16 Sch. para. 6 in force at 9.1.2004, see reg. 1(1)

Explanatory Note

(This note is not part of the Regulations)

These Regulations prescribe limits on the powers of teachers in charge of pupil referral units to exclude pupils under section 52(2) of the Education Act 2002, and the procedure which is to be followed by the teacher in charge and the local education authority following an exclusion from a pupil referral unit.

Regulation 2 introduces a new definition of “relevant person” for the purposes of these Regulations and also provides that any fixed period exclusion during the lunchtime period is to be counted as an exclusion for a quarter of a school day.

Regulation 3 prescribes the local education authority as the body responsible under section 52(3) of the 2002 Act for considering whether the excluded pupil should be reinstated.

Regulation 5 requires the teacher in charge to inform the relevant person of details of an exclusion. The teacher in charge must also inform the local education authority if the exclusion is permanent, will result in the pupil missing a public examination, or takes the total exclusions for that pupil over five days in a term.

Regulation 6 makes provision as to the range of information that the teacher in charge must provide to the local education authority and the range of information the local education authority must provide to the National Assembly for Wales at its request.

Regulation 7 requires the local education authority, where the exclusion will result in the pupil missing a public examination, or takes the total exclusions for that pupil over 15 days in a term, to consider the circumstances, listen to any representations from the relevant person, the excluded pupil where the pupil is not the relevant person and the teacher in charge, and to decide whether the pupil should be reinstated or not.

Regulation 8 requires the local education authority to make arrangements for the relevant person to appeal against a decision of the teacher in charge to permanently exclude a pupil. A failure to follow procedural requirements is not of itself to lead to a decision to reinstate. The decision of the appeal panel is binding. The panel may decide not to issue a direction requiring reinstatement of the pupil if they consider it is not practical because of exceptional circumstances or other reasons.

Regulation 9 requires teachers in charge, local education authorities and appeal panels to have regard to guidance given by the National Assembly for Wales.

The Schedule prescribes the constitution and procedure for appeal panels by making appropriate modifications to the Schedule to the Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003.

(1)

2002 c. 32; see section 212(1) for the meaning of “regulations” and “prescribed”.

(2)

1992 c. 53, amended by paragraph 22 of Schedule 21 to the Education Act 2002.

(3)

S.I. 2003/3227 (W.308).

(4)

Pupil referral units are established and maintained under section 19 of the Education Act 1996 (c. 56).

(5)

1996 c. 56.

(6)

ISBN 0 7504 27574.

(7)

S.I. 2003/287 (W.39).

(8)

S.I. 2003/2959 (W.277).

(9)

1998 c. 38.