Mandatory off-site schooling, not related to Covid-19 but for other purposes, is the key issue in the case of R (CHF) v Newick CE primary school; the judgment here highlights the legal principles by which schools and local authorities can require pupils to attend somewhere other than their registered school to receive education.
The case, involving a young child who is accused of peer-on-peer sexual abuse, sets out that a school and local authority can mandate off-site education for the purpose of ‘safeguarding separation’.
Understanding a school’s governing body’s powers
Under the Education Act 2002, Newick primary school issued a section 29A notice to enforce separation of an alleged perpetrator from alleged victims in response to a serious safeguarding issue. However, as a section 29A notice can only be used to address behavioural issues and not to separate pupils – as was the school’s aim – this was invalid.
Instead, a local authority can issue a section 19 notice – under the Education Act 1996 – to mandate off-site schooling for safeguarding separation and to protect all children involved, including the alleged perpetrator(s) in the event of peer-on-peer sexual abuse. It also applies where a child, group of children, or in some cases an entire school of children, should attend off-site schooling due to:
- problems with the school site (i.e. an unsafe building)
- adverse weather conditions
- health risks (i.e. asbestos)
Whilst the application of mandatory off-site schooling is reasonably broad, this power must not be used where the school is simply unable to meet the pupil’s educational or other needs. It cannot be used as a ‘back door’ exclusion either and if exclusion is the preferred sanction, the school must follow the Department for Education’s guidance and its own exclusions policy.
How does this apply to academies?
The 2002 Act applies specifically to maintained schools, though it is generally recognised that the powers should apply by implication to academies by virtue of their funding agreement and/or articles of association.
Where an academy directs mandatory off-site schooling for improving behaviour, it may use another of its trust schools, or an alternative provider/school, that will accept the temporary placement of the pupil and therefore the local authority would not be required to ‘fill the gap’ in the child’s education. However, the local authority may assist and use its power to issue a section 19 notice if it agrees that a safeguarding separation is required.
An academy may also direct mandatory off-site schooling to ensure a separation for safeguarding reasons. This is because schools have a requirement to exercise their general management powers with a view to safeguarding and promoting welfare in accordance with the Keeping Children Safe in Education statutory guidance.
As mandatory off-site schooling is imposed without the consent of parents, there is a greater risk of challenge. To protect themselves, academies should provide parents with clear information about the alternative placement, including that it will be regularly reviewed to ensure that it continues to be a suitable placement for the pupil. It is sensible to set out clearly for the parents:
- the pupil’s behavioural needs and the provision required to meet their needs
- why the proposed off-site provision is more suitable to meet the child’s needs
In some circumstances, exclusion may be a more suitable sanction for a pupil’s behaviour than mandatory off-site schooling; schools and academies can avoid getting into difficulty by ensuring that their policies allow for exclusion of a child in all necessary circumstances. However, where exclusion is not deemed to be a necessary sanction and mandatory off-site schooling would be an appropriate requirement, schools and academies must ensure that the appropriate steps are taken to mandate off-site schooling in accordance with all relevant case-law and legislation.