The High Court recently handed down judgment in R. (on the application of CHF) -v- Newick CE Primary School setting out the legal position for mandatory off-site education when there is no behavioural issue to warrant the direction.
Background
The Newick case involved serious allegations of peer-on-peer sexual violence made by young pupils in a primary school setting.
The school was not in a position to make any decision that would allow for the exclusion of pupil 'B', but did not want him on the premises as they considered it a safeguarding matter for all pupils involved in the incident to have contact. It was a small school and the prospects of the children coming into contact at the centre of the allegations was relatively high. A multi-agency approach was formed, including various officers from the local authority. The school issued a notice under section 29A Education Act 2002 which required B to attend another school to receive education while still remaining on the school's register. It was later accepted that the school had incorrectly issued a s29A notice, as this can only be used to improve behaviour. However, the local authority subsequently issued a notice under section 19 of the Education Act 1996; this still had the same intent, that B was to go off-site to receive his education. B was required to attend another maintained school under the local authority's control. B's parents refused to accept this and insisted that Newick admit their child as it was the school at which he was lawfully registered to attend.
The parents of pupil B issued a claim for judicial review. The initial application for permission sought a much broader scope for review, including the later permanent exclusion of B. However, permission was limited to the mandatory off-site education.
Off-site schooling and safeguarding
The judgment identifies a way in which the power to issue a mandatory direction for off-site education can be used when there is no immediate behavioural justification. It is perhaps easier to think of off-site schooling in the context of Newick as a proportionate response to manage a safeguarding issue. This is a particularly useful tool for situations where, due to the age or nature of the allegations, it is difficult to make a judgment but where those pupils involved should not have contact due to safeguarding concerns.
In the Newick case, off-site schooling was chosen to allow the school time to investigate the allegations while managing the safeguarding risks arising. It was also considered appropriate as a safeguarding measure; the school was small, the pupils involved were young and there was no realistic way to manage safeguarding on the small school site.
Alternative reasons for off-site schooling
The power to direct off-site schooling is more commonly exercised when there have been behavioural issues which need to be addressed and for which an alternative setting may assist to improve behaviour. In fact, the scenarios can be far broader, for example, a school may feel the need to direct off-site schooling where there are issues with the school premises, such as when adverse weather conditions causes it to be unsafe or where unsafe materials, such as asbestos, are found on site.
Lawful basis for off-site schooling
The High Court found that the school and the local authority had the power to mandate off-site education for the purpose of 'safeguarding separation'. In this case the court identified three limbs which lawfully allowed for the direction in a safeguarding context:
- The local authority can direct a child to attend an alternative educational setting pursuant to its power under s.19 Education Act 1996.
- A school can use its general management power informed by statutory guidance issued by the DfE (Keeping Children Safe in Education).
- Both the school and the local authority can exercise their public law duties (which would be the safeguarding and promoting the welfare of children).
The powers and duty above allow for mandatory off-siting of the pupil without parental consent.
Off-site schooling and academies
The Newick case involved a local authority and its maintained school. So the immediate question many will ask is whether the law identified in this case can be applied for an academy trust. Section 29A does not extend to an academy, but through the powers set out under an academy trust's articles of association the trustees can arguably authorise directing pupils off-site. Furthermore, the common law and public law position as set out in points 2 and 3 above can equally apply to a state-funded academy.
While it may be easier for a local authority to organise an alternative placement for the child and direct admission at one of its other maintained schools, academy trusts may use another of its trust schools or an alternative provider/school that will accept the temporary placement of the pupil. The local authority may also be inclined to assist and use its power under s.19 if it is in agreement with the academy's leadership that a safeguarding separation is required.
While the Newick case gives a lawful basis for off-site schooling outside of the context of behaviour, it should be used cautiously so as not to create a dispute over an unlawful exclusion arising. The circumstances in Newick required an immediate response for which off-site education was a proportionate action in all the circumstances. Each case needs to be considered on its facts before any mandatory direction is issued.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
