The High Court has given judgment in the case of R (on the application of HA by his father and litigation friend, AA) (claimant) -v- Hampstead School Governors (defendant) & London Borough of Camden (interested party) (2016).

Governing bodies need to be alert to their duties in communicating the reasons and objectives behind decisions to transfer pupils to off-site educational provisions and to keep pupils’ placements under review.

The High Court has upheld a challenge by the claimant (a 16-year-old boy) to his school's decision to transfer him to off-site educational provision and to its failure to keep that decision under review as required by regulation 4 of the Education (Educational Provision for Improving Behaviour) Regulations 2010. The decision relates to a maintained school but will apply equally to academies. The boy had been studying seven GCSEs until the school decided to transfer him to off-site educational provision due to his behaviour, where he would be no longer able to pursue a full range of GCSE studies; he would instead be required to do vocational training linked to manual work together with core GCSE level equivalent studies in English and Maths and applied science. The boy attended the college initially, but was unhappy about the transfer and stopped attending school altogether.

Communicating reasons and objectives

Section 29A of the Education Act 2002 provides that, for the purpose of receiving educational provision to improve the pupil's behaviour, the governing body of a maintained school in England may require any registered pupil to attend any establishment outside the school premises. Where a governing body makes a decision to transfer a pupil under 18 to off-site educational provision, they must give the parents a notice setting out certain particulars including the:

  • Address of the off-site educational provision.
  • Name of the person to whom the pupil must report.
  • Number of days the transfer is set to last for.
  • Reasons for, and the objectives of, the transfer.

In this case the boy’s father was invited to a meeting at the school but was not provided with all the necessary information, in particular regarding the objectives of the transfer.

Review

The Board of Governors is required to keep off-site placements under review. Review meetings must be held at intervals the Board considers appropriate having regard to the needs of the pupil. At each meeting, the Board should decide whether the placement should continue and, if so, for what period of time. In reaching its decision, the governing body must take account of the views of parents and other prescribed persons and must, within six days, notify its decision in writing to those affected. In this case, the fact that the boy was not attending the college was an insufficient reason for failing to conduct the reviews.

As a result, the Court order quashed the transfer decision and ordered the boy's immediate re-admission to the school for a six-week period. It ordered the school to re-consider its decision within the six weeks and, if a further decision was taken to transfer the boy off-site, that decision had to be reviewed regularly and at a frequency judged to be appropriate by the governing body.

It is therefore essential that parents are given clear information about why the placement off-site is being made, why what is proposed will improve the pupil's behaviour, and the details of the review process. Although it is not specified how often the reviews must take place, they should be decided on a case-by-case basis and be frequent enough to provide assurance that the off-site education is achieving its objective and the pupil is benefiting from it. At each review meeting, the governing body must take account of the parents' views and notify them of its decision in writing.