The debate on exclusions and alternative provision continues to rage. Following on from our recent articles on exclusions from a head teacher and governor perspective, we turn now to Alternative Provision (AP).

Maintained schools have a clear statutory power to direct a pupil off-site for education to improve their behaviour (section 29A Education Act 2002). The position is less clear for Academies which must rely on their general powers, set out in their Trust’s Articles of Association. [Academy Articles of Association Model One: 5. In furtherance of the Objects but not further or otherwise the Academy Trust may … provide educational facilities and services to students of all ages and the wider community for the public benefit.]

The exercise of this power is unilateral: parental consent is not required. Therefore the risk of the process being challenged is heightened. To best deter or defend any legal challenge, Academies should be clear that the requisite power has been correctly delegated by Trustees. This is best achieved by the Trust’s scheme of delegation clearly documenting the way in which this power is to be exercised.

Although AP Regulations and Guidance (The Educational Provision for Improving Behaviour Regulations and the Alternative Provision, Statutory Guidance for Local Authorities, respectively) do not apply to Academies, they provide an example of good practice, that will better enable Academies to justify their directions to, and ongoing placement at, AP.

Academies should ensure that parents (and the local authority where the pupil has an EHCP) are given clear information about the placement, including that it will be regularly reviewed. Academies can be criticised if they are not clear on the objective(s) behind the direction off-site. They should therefore set out:

  1. A specific assessment of the pupil’s behavioural needs;
  2. A specific assessment of the provision that would be required to meet those needs; and,
  3. A conclusion, with reasons, why the proposed off-site provision can meet the assessed need.

Time frames for appropriate monitoring of progress and reviews should be set out: including the date of the first review and how frequent reviews will be, and who will be involved. Whenever possible parents should be involved in the review and the Trust/ governing body should be able to demonstrate that it has taken their views, along with the individual needs and circumstances of the pupil, into account. The Governing Body/ Trust must decide whether the AP placement should continue, and, if so, for what further period of time.

The regulations for maintained schools specify regular reviews but not timescales. They should be frequent enough to provide assurance that the off-site education is achieving its objectives and that the pupil is benefiting from it. Parents can request, in writing, that the Trust/ governing body review an AP placement. This must be complied with as soon as reasonably practicable, unless there has already been a review in the previous 10 weeks.