One tangible consequence of the coming into effect of the Education (Admissions to Schools) Act 2018 is that, apart from oversubscription, you can only refuse to enrol a student if their parents refuse to sign up to the school’s Code of Behaviour. Principals and Boards of Management need to urgently consider whether their Code of Behaviour is robust enough to enable them to deal with students that may potentially pose a serious threat to the health and safety of staff and students.
Given the COVID-19 pandemic schools need to ensure when they re-open in September that their Code of Behaviour is fit for purpose. A robust code should enable schools to adequately deal with student misconduct that poses a threat to the health and safety of other students and staff.
Admissions, admissions, admissions
The Education Welfare Act (2000) provides that a school can only refuse to enroll a student consistent with its Admissions Policy. Before the Admissions Act we advised schools to include a proviso in their Admissions Policy. This proviso allowed them, in certain exceptional circumstances, to refuse to enroll a student where the student concerned posed a threat to the health and safety of students and/or staff. It also would have allowed schools to refuse to enroll a student with very complex SEN where even with maximum DES support the school would be unable to cope.
We no longer advise schools to include this proviso in their Admissions Policies. The Admissions Act explicitly provides that the Admission Policy must “provide that the school shall admit each student seeking admission to the school……other than
Where the school is oversubscribed
Where the parent when requested by the Principal to do so fails to confirm in writing that the Code of Behaviour of the school is acceptable to him or her and that he or she shall make all reasonable efforts to ensure compliance.”
Many schools have retained the original proviso in their policies and we completely understand why they do. We will not know definitively whether it continues to be fit for purpose until an appeal has been determined by a S.29 Appeal Committee. Our view is that there is a real risk that it will not because of the very tight wording of the Admissions Act and for other reasons related to GDPR and data privacy. Even if the proviso were to be upheld on appeal by a S.29 Appeal Committee, it would not assist schools in dealing with a student, already enrolled, who presented a serious threat to health and safety.
We are of the view that the better way to address any real concerns is to ensure that the Code of Behaviour is robust enough to enable school management to address serious threats of violence or actual violence efficiently, fairly and in compliance with the statutory guidelines on Codes of Behaviour as determined by the Education Welfare Act 2000.
Don’t forget that these Guidelines (the NEWB Guidelines) allow schools to act immediately where “the student’s continued presence in the school constitutes a real and significant threat to safety”.
There is a further reason to upgrade your Code of Behaviour and that is all to do with the COVID-19 pandemic. You need to be sure that your Code is fit for purpose in dealing with issues of misconduct on the part of students which give rise to a serious threat to safety to staff and students. Having taken the necessary steps to make sure that it is fit for purpose you will able to contact parents, with confidence, at the start of the new school year notifying them of what you expect from their children and of the consequences of non-compliance.
There is a further benefit to be gained in taking these steps which should not be underestimated in these anxious times. and that is that you will be able to re-assure your staff who will be returning to school in uncertain times that you are thinking of them and that you have “beefed up” your Code of Behaviour to further protect them (and the students) from any threats to their health and safety.
What you need to do:
Review your Code of Behaviour in the context of your statutory obligation to provide your staff with a safe place of work
Make sure the Code is robust enough to enable you to deal with threats to safety in an efficient, fair and compliant manner
Make sure that parents are explicitly on notice of the provisions of your suspension and expulsion policy as set out in your Code of Behaviour and that when they sign up to same they know what they are signing up to.
Remind your existing parents of the provisions of the Code of Behaviour and of the consequences for their children of misconduct which poses a threat to health and safety
For more information on reviewing and amending your school’s Code of Behaviour, contact a member of our Education team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.