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Governance procedures and exclusions: schools hotline FAQs

Practical Law Public Sector addresses the questions that schools may ask local authorities regarding day-to-day school management and sets out the legal issues to consider when responding:

This FAQ looks at the procedures for exclusion decisions. For details of all our school hotline queries, please see Practice note, Schools hotline FAQs.

Q: Annie was excluded by the school, but her parents are now complaining that the decision to exclude her was invalid because the wrong procedures were followed. Can the wrong procedures invalidate a decision of the school governing body?

A: The requirements for school governance procedures are set out in the School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034) (2012 Regulations) (for instruments of government dated on or after 1 September 2012). The repealed School Governance (Constitution) (England) Regulations 2007 (SI 2007/957) (2007 Regulations) continue to apply to schools with instruments of government dating from before 1 September 2012. Regulations 13 to 15 of the 2012 Regulations set out certain essentials that a school’s instrument of government must contain (regulation 28, 2012 Regulations). Part 3 of the 2007 Regulations contains similar requirements. The Department for Education (DfE) has also produced guidance on the 2012 regulations: see DfE: Statutory Guidance on the School Governance (Constitution) (England) Regulations 2012 (February 2013).

There are two alternative ways in which the school may not be following the correct procedures above:

  • The school may not be following an instrument of government that is valid under the statutory requirements.
  • The school may be correctly following its instrument of government, but the instrument may itself be defective and invalid under the statutory requirements.

(The local authority should have already checked the school’s instrument of government when it was in draft, to see whether it complied with the statutory requirements: see DfE: Instrument of Government (9 March 2011).)

Whether the governors’ decision to exclude Annie is valid depends on exactly how the governors’ procedures differed from the statutory requirements above, (regardless of whether the procedure differed because the school’s instrument of government was itself defective or because it was not properly followed). Legislation states that:

“the proceedings of the governing body of a school shall not be invalidated by: (a) any vacancy among their number; (b) any defect in the election, appointment or nomination of any governor; (c) any defect in the appointment of the chair or vice-chair; or (d) the school having more governors of a particular category than are provided for by the instrument of government.”

(Regulation 12(5), School Governance (Procedures) (England) Regulations 2003 (SI 2003/1377).)

Therefore, if the governors’ procedures had not followed the statutory requirements due to one of the reasons above (for example, one governor was vacant when the exclusion decision was taken), then the decision to exclude Annie would still stand.

However, if the governors’ procedure when excluding Annie was defective in a way that is not mentioned under regulation 12(5) (for example, fewer governors than required took the decision), then their decision to exclude may be open to challenge and potential litigation on the grounds that it was invalid. Whether such a challenge would be successful would depend on the particular facts of Annie’s case.

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