What does the Timpson Review of School Exclusion mean in practice?

The key findings and recommendations of the Timpson Review of School Exclusion and the impact on exclusions and behaviour management in practice.

The Timpson Review of School Exclusion, commissioned to  explore how head teachers use exclusion in practice and why some groups of pupils are more likely to be excluded, includes findings and recommendations that are important not just for mainstream, special and alternative provision but also for health and social care agencies and the government.

Key findings of the Timpson Review of School Exclusion

The key findings, summarised below, provide a frame of reference for the recommendations that follow.

Outcomes

Of concern is the fact that the outcomes of excluded children are often poor with just 7% of children who were permanently excluded and 18% of children who received multiple fixed period exclusions in 2015/16 achieving good passes in English and maths GCSEs. Only 4.5% of pupils educated in Alternative Provision ("AP") in 2015/16 achieved a good pass in English and maths at GCSE. Excluded children are also at higher risk of becoming NEET (not in education, employment or training) and a victim or perpetrator of crime and are vulnerable to exploitation. There is therefore a pressing need for high quality provision for excluded pupils to ensure they achieve their full potential and keep them safe.

Vulnerable groups

The groups who more likely to be excluded include:

• children with special education needs or and/or a disability ("SEND"), particularly children with social, emotional and mental health ("SEMH") including in relation to attachment and trauma;
• children who have been supported by social care including Children in Need, looked after children and those who have left local authority ("LA") care via adoption, Special Guardianship or a Child Arrangement Order;
• Irish, Black Caribbean, Gypsy and Roma children; and
• children eligible for free school meals, boys and older pupils.

Children who have several characteristics are at even greater risk of exclusion.

Given the range of factors that lead to poor behaviour and exclusion, schools and health and social care agencies therefore need to work together, before and after exclusion, to give children the best chance to succeed.

EHC plans

This is reinforced by the fact that children with EHC plans are 2.8 times more likely to have a fixed period exclusion, when compared with all children, and that exclusion is sometimes used as a tool to ensure a child is assessed for an EHC plan, or given a place outside mainstream school, rather than primarily as a tool to manage poor behaviour. This has the knock on effect of taking AP places at the cost of those in need of the particular support that AP provides.

Variations in practice

Data for 2016/17 shows that 54% of permanent exclusions were in the quarter of highest excluding LAs and only 6% in the quarter that excluded the fewest. Meanwhile, 85% of mainstream schools issued no permanent exclusions with 0.2% of mainstream schools issuing more than 10. Rates of fixed period exclusion also vary across LAs, from 0% to 21.42%. These differences are driven by issues of place (the particular challenges in an area, such as levels of deprivation and gang activity) and policy and practice (the particular means of managing behaviour and thresholds for exclusion).

Guidance

Head teachers also report that current DfE guidance is unclear, leading to variation in practice. This is likely to explain, in part, the range of exclusion rates between schools.

School type

The Review did not find that school types (academies or otherwise) are, as a group, using exclusion strategically to improve results. In fact, the Review found that the type of school will not, in itself, determine how well exclusion is used.

Exclusion in all but name

Of concern, though, is that children have been made to leave their school without access to the formal exclusion process, sometimes perversely incentivised by current accountability measures. This includes children sent home from school for a period of time with no exclusion being recorded, referred to as 'informal exclusion'. It also includes schools that encourage parents to remove their child from school, sometimes under the threat of permanent exclusion, referred to as 'off-rolling'. Both 'informal exclusion' and 'off rolling' risk leaving children in unsuitable education or with no education at all, exposed to criminal activity, gangs and other exploitation. The government therefore needs to understand the scale and impact of the problem. While tackling this could result in a rise in formal exclusions, this should be seen as positive progress.

Special schools

For special schools, the rate of permanent exclusion is lower than mainstream, at 0.07%, while the fixed period exclusion rate is higher, at 13.3%. Special schools also reported poor co-ordination with other schools in their area with a lack of places in specialist settings for pupils with particular needs, often those more likely to be excluded.

Alternative provision

AP also report that places taken by permanent exclusions divert resources from implementing preventative support. Some AP settings are also under pressure to fill places early in the year, where demand is high, meaning they are unable to take referrals later in the year for those in greater need. Meanwhile, there is concern that children are being directed to AP, rather than being formally excluded, meaning the parent or carer does not have access to the independent review process that is available on exclusion. The condition of some AP premises is also inadequate.

Independent review

According to the Review, data also shows that uptake of the independent review, available to parents and children following a permanent exclusion, is low. This may reflect that parents do not want to, or do not believe they have the grounds to, challenge exclusion or they lack the information or confidence to do so. Whatever the position, it is imperative that governing bodies of schools and academy trusts understand their legal obligations regarding independent reviews and exclusions more generally. For further detail, please see our recent article A guide to the exclusions procedure available here.

Governance

In terms of governance, the Review identifies LA-convened forums as a common model for effectively bringing schools and other services together to take joint responsibility for those at risk of exclusion. However, their constitution varies, with some constituted as stand alone forums and others using existing meetings of school leaders, such as Fair Access Protocols, to avoid new layers of governance.

The Review also reinforces the importance of diversity on the governing body of the school and on the academy trust to strengthen their effectiveness and set the tone for inclusion. This chimes with the principles of diversity, integrity and board effectiveness in the Charity Governance Code, produced for organisations with charitable or social purposes, and also chimes with the requirements of the Equality Act 2010.

Meanwhile, the Review considers that good governance of in-school units is critical and encourages schools to carefully consider who oversees and monitors their operation and how their use is kept under review and communicated to parents and carers.

Crucially, the Review reports the need for governors to have the capacity and training to scrutinise decisions to exclude. The training requirements that apply can also be found in our recent article A guide to the exclusions procedure available here.

Key recommendations of the Timpson Review of School Exclusion

The key recommendations of the Review are as follows.

Statutory guidance

First, it is recommended that the Department for Education ("DfE") updates its statutory guidance to provide more clarity on the use of exclusion and ensure all relevant overlapping guidance us clear, accessible and consistent.

Joint working

The DfE should also set the expectation that schools and LAs work together and clarify the powers of LAs to act as advocates for vulnerable children. In particular, LAs should be enabled to facilitate and convene meaningful local forums that all schools are expected to attend.

While we agree with the need for greater joint working to safeguard the vulnerable, we do wonder whether the effectiveness of these forums is limited, given the inherent competition in the school system and the limited and shrinking capacity of many LAs. The constitution of the forums also requires careful thought to ensure that maintained schools and academies are suitably represented, which is not always the case at present.

Practice Management Fund

Alongside the above, the Review recommends that the DfE should also establish a Practice Management Fund to support LAs, mainstream, special and AP schools to work together to establish effective systems to identify children in need of support and deliver good interventions. This, though, is dependent on the next Comprehensive Spending Review.

Training

Meanwhile, the Review recognises that well-evidenced, meaningful and accessible training and support is essential for school leaders to develop, embed and maintain positive behaviour cultures and so recommends that the DfE £10m investment in supporting school behaviour should enable leaders to share best practice and facilitate peer support. It also recommends that the DfE should ensure accessible, meaningful and substantive training on behaviour is a mandatory part of initial teacher training and embedded in the Early Career Framework.

SENCOs

Similarly, the DfE should review the training and support available to Special Educational Needs Co-ordinators ("SENCOs") and ensure the training of designated senior leads includes a specific focus on attachment and trauma.

Equality and diversity hubs

According to the Review, the DfE should also extend funding to equality and diversity hubs to increase the diversity of senior leadership teams through training and support for underrepresented groups. Again, this is consistent with the principle of diversity in the Charity Governance Code, produced for organisations with charitable or social purposes and consistent with the requirements of the Equality Act 2010.

In-school units

As for in-school units, the Review recommends that the DfE should strengthen its guidance so that these are used constructively and are supported by good governance. To our mind, the guidance should confirm the requirement for clear schemes of delegation and terms of reference for the committee with immediate oversight and clear lines of responsibility and reporting for the staff responsible for managing the provision.

Alternative provision

The DfE should also promote the role of AP in supporting mainstream and special schools to deliver effective intervention, recognise the best AP as teaching schools and actively facilitate the sharing of expertise between AP and the wider school system. Alongside, the DfE should take steps to ensure AP is an attractive place to work and career choice, boost interest in and exposure to AP through teacher training placements and develop and invest in high-quality, inspirational leaders in AP who have capacity to drive improvement across the sector. The DfE should also invest significantly in improving and expanding AP buildings and facilities and rename Pupil Referral Units to reflect their role as schools and places to help children overcome barriers to engaging in education.

Accountability

The Review goes onto recommend that the DfE should make schools responsible for the children they exclude and accountable for their educational outcomes and recommends that the DfE consults on how to take this forward including for schools to have greater control over AP funding to allow them to discharge their duties. The DfE has already announced that it will be consulting in the autumn term.

The Review also says the DfE must take steps to ensure there is sufficient oversight and monitoring of schools' use of AP and require schools to submit information on their use of off-site direction into AP through the school census.

The Review further recommends that the DfE should consider and mitigate any possible unintended consequences of strengthening accountability, for example by introducing a 'right to return' period for home educated children to return to their previous school.

Meanwhile, Ofsted is encouraged to address exclusions practice, good or bad, within the leadership and management element of their judgement. Where it finds 'off-rolling', this should in all but exceptional cases result in a judgement that the school's leadership and management is inadequate.

Funding

In terms of funding, the DfE should look carefully at the timing and amounts of any adjustments to schools' funding following permanent exclusion to remove any incentive for a school to permanently exclude or refuse to admit a child who has been permanently excluded from elsewhere. The Review also recommends that funding should be sufficient and flexible enough for schools to put in place alternative interventions that avoid exclusion, where appropriate, and fund AP. As things stand, however, there is no indication that additional funding will be forthcoming although we await the outcome of the Conservative leadership contest and the Comprehensive Spending Review.

Governance

In terms of governance, the DfE should work with others to build the capacity and capability of governors and trustees to properly discharge their functions in relation to exclusions and managed moves, including training and guidance. Governing bodies, academy trusts and local forums should also review exclusions data to identify local trends and gaps in provision.

Previously looked after children

Similarly, the DfE should publish the number and rate of exclusion of previously looked after children.

Exclusions data

The DfE should also review the range of reasons that schools provide for exclusion when submitting data and make changes to more accurately capture this data.

Managed moves

Meanwhile, the DfE should consult on and issue clear guidance on how managed moves should be conducted, so that they are used consistently and effectively.

Multiple exclusions

Similarly, the DfE should consult on options to address children with multiple exclusions being left without access to education, including by limiting the total number of days a pupil can be excluded for or requiring AP to be arranged in these circumstances.

Vulnerable children

The Review goes onto recommend that regulations and guidelines should be changed so that social workers must be notified when a Child in Need is moved out of their school (by managed move, home education or direction to AP) and be involved in any process for challenging, re-considering or reviewing decisions to exclude.

Real-time data on exclusions and other moves out of education should also be routinely shared with Local Safeguarding Children Boards and their successors, Safeguarding Partners, so they can assess and address any safeguarding concerns, such as involvement in crime.

Youth Endowment Fund

Alongside, the Review recommends that the government's £200m Youth Endowment Fund, which tests interventions to prevent children from becoming involved in a life of crime and violence, should be open to schools, including AP, to support early intervention and prevention for those most at risk.

Wrigleys' comment

The Timpson Review of School Exclusion is thorough and compelling with the findings and recommendations spanning exclusions, education provision, safeguarding, governance, inspection, accountability and equality. If you require further information or advice on any of these areas, do get in touch. As education sector experts, we routinely advise on these areas.

In the meantime, we await the implementation of the DfE response including the further consultation schedule for the autumn term, and of course the Comprehensive Spending Review and, before that, the outcome of the Conservative leadership contest, which could change everything!

If you would like to discuss any aspect of this article further, please contact Graham Shaw or any other member of the Education team on 0113 244 6100. You can also keep up to date by following Wrigleys Education on Twitter here The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors