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Monday, 04 September 2017 18:45

UPDATE 7/9: Expulsion of Year 12 A Level Pupils Illegal

Further Update: Although St Olave's is not in the geographical area I normally cover, I wish to draw your attention to the shocking background outlined here.  Like many otheres, I fail to understand, given the evidence presented across a range of issues, why there is no investigation taking place. Five governors are appointed from the Anglican Diocese of Rochester, including the Chairman, The Ven Dr Paul Wright, Archdeacon of Bexley and Bromley, and on the Diocesan Board of Education. Is the school in meltdown? 

Update 10th September: You will find an article published in Kent on Sunday bringing together the main issues, along with several additional matters, here

Update 7th September: The Department of Education has today sent a letter to all schools clarifying the situation regarding exclusion at the end of Year 12 for academic reasons. This makes it crystal clear that it is unlawful to remove students for any but disciplinary reasons. No school should be in any doubt about this regulation. If needed, you will find a copy of the letter here

This confirms my view on the law after highlighting the case of 22 pupils most of whom were illegally forced out of Invicta Grammar School Sixth Form last summer, because they did not achieve high enough grades at the end of Year 12. Since the publication of A Level results this summer, I have been approached by families across the country who have also been thrown out of grammar and non-selective Sixth forms for not achieving similar illegal requirements, in particular several from St Olave’s Grammar in Orpington, a Voluntary Aided School sponsored by the Anglican Diocese of Rochester.  

The DfE statement throws open a gaping hole in current practice, with thousands of children across the country being sacrificed in the drive to improve school league table positions. Every one of these should now know or be told their expulsion is illegal and they are entitled to resume their places in Year Thirteen.

The significance of the ruling can be seen by the interviews I was invited to give on the subject. I was live on the BBC News Channel and Radio Five Live, but also gave two interviews for The Guardian and was quoted in The Times. On Radio Five, I was challenged about what is wrong with ‘weeding out’ lower performing students and had to explain its illegality and the damage it does to students thrown out mid-course. I also appeared on Radio London, after St Olave's Governors announced an inquiry into the matter. It is becoming clear that this misbehaviour sees thousands of students have their school careers illegally terminated at the end of Year 12. It should be noted that the ruling does not apply to Sixth Form and other Colleges which have different regulations allowing this to happen, or private schools which are subject to their own agreements with parents.

Whilst schools cannot permanently exclude, they do have legal strategies they can utilise: they can transfer a student to a different course within the school; they can advise and support students to find a more suitable institution, but cannot force any decision which would amount to exclusion; they can ask the student to repeat the year. These are internal strategies, and so not subject to external regulation, but students and parents would have the right to use the school internal complaint procedure to challenge such a decision. A comment below confirms this, quoting the Association of School and College Leaders in  advice to schools underlining that they cannot force students out at the end of Year 12. So why have so many schools across the country, including St Olave's and Invicta Grammars chosen to ignore this ruling of the illegality, now and in the past .  

To quote Vanessa Feltz in our interview: 'There is of course a downside to this ruling'. The downside is that some schools may well increase their academic GCSE requirement to enter the Sixth Form, in an attempt to reduce the number of lower grade passes at A Level. No change can be implemented before September 2019, as it would need to go out to consultation, unless it has already been approved at this time. 

What to do if you are in this Situation
Each case will clearly be different, and you will need to approach it according to the ethos and expectations of the school. Some will respond positively following a meeting if you put the rules to the school, with many not knowing the law and exercising 'custom and practice' which has gone on for many years. If in doubt, put your situation in writing, quoting the Statement from the Department for Education. Ask on what legal grounds you are being permanently excluded, or any other legislation that applies - it doesn’t! You will find the regulations here. The problem you have is that if the school spins it out, you will lose substantial parts of the Year 13 Course, which may damage your A Level results.Whatever, don’t give in, you are in the right and the law is on your side. Sorry I can’t be more specific and am afraid I am unable to offer individual advice. 
Invicta Grammar School
Back in January I discovered from school census data that 22 students in Year 12 at the school had not been allowed to return to Year 13 the previous summer, as they had not reached the academic requirements published on the school website to proceed; which started this whole story unravelling. The school falsely claimed that all 22 had left voluntarily in spite of: the published academic requirements for entry to Year 13; the many cases cited in the comments at the foot of my article; other contacts from families; and letters sent to parents explicitly stating their children could not return to the school. My article created considerable publicity and has attracted an unprecedented 24,667 visits on this specialised website, to date. It was picked up by a national newspaper which established the practice was widespread, but abandoned the case because it failed to get a view out of government at that time. Overall the school lost 40 pupils in Years 11 and 12 in that age group, many of the Year 11 leavers unusually departing by choice, whilst most other grammars in Kent saw a net increase over this period.
As distinct from the St Olave's Governors, who have announced an inquiry into the scandal, the only response from Invicta Grammar, part of the VIAT Academy Trust has been a brief statement, 'rubbishing' my story, according to a local newspaper, and then silence.  Perhaps a dignified apology to all the students whose careers prospects they have ruined might not come amiss, or perhaps they are rightly afraid of legal action on behalf of those students, now they have been shown to act illegally. 

On the BBC News Channel, I read out part of the testimony of a parent whose daughter had been wrongly excluded the previous summer at the end of Year 12. “What happened to our daughter has had a massive impact on her; she is still limping along. To be honest her confidence was so damaged we don't know if she will ever believe in herself in the same way again”. What an indictment of the practice, but certainly not alone, as career dreams are shattered. 

The school website, which last year set out the academic requirements for entry to Year 13, now carries no such reference, suggesting it has discovered my interpretation of the law was correct. However, the school also boasts about its Outstanding A Level results, delivered on the back of seeing an alarming 15% of its pupil roll vanish in advance of these. I have had no similar contacts from Invicta families this year, suggesting the school has backed down in the knowledge of the illegality.  

Excerpt from Letter to New Parents, Invicta Grammar School
I am particularly pleased to find that we are once again, the top performing grammar school in Maidstone at GCSE Level and A Level. Our A Level results were particularly impressive in that we were considerably higher than the other local grammar schools. This is a fantastic achievement and one which I am sure our students will be very proud of. It is their hard work that has enabled such a superb accolade. What is really special, is that these results will give our students life changing opportunities.
St Olave’s Grammar School
For September 2017, the school expelled 16 students who had not performed to the Grade B standard at AS Level required by the school to proceed to Year 13. I was contacted by several families, and advised them to challenge the decision strongly. As a result, education lawyers took up the cases, and persuaded the school to reverse its decision on Friday last week, around the same time as the Department for Education declared the practice illegal.

This is a super selective grammar school which has also taken pride in its Outstanding A Level results: In a record year at St Olave’s Grammar School, students achieved a stunning 96% A*/B grades. A total of 75% of all grades were at A*/A, 3 percentage points up on last year’s. 32 students gained straight A* grades in at least 3 subjects”. I assume that the process of eliminating lower performing students has also occurred in previous years and so is an integral part of achieving such excellent results.

The Guardian has followed this story closely with a number of articles about the school, which have piled the pressure on government and brought about this outcome, including: (1); (2); (3)

Last modified on Tuesday, 18 June 2019 19:27


  • Comment Link Friday, 05 October 2018 12:38 posted by Anon

    My son was excluded from his Academy School Sixth Form because he failed one of his three mock A levels. This shattered him and he has been (and is being) treated for depression subsequently.
    Unable to study elsewhere, he has taken a job paying minimum wage, his future, he feels, now in tatters.

    I have a letter from the school stating that this was the reason and that there was no other reason for the exclusion.

    When his younger brother is done with the place I would like to explore the legal options.

    I am concerned that there may be a limit on the time I can delay taking legal action against the education authorities, the school and the individuals who made the decision to exclude personally. PETER As my article states; this action is clearly illegal. You haven't supplied the name of the school so i can't make an assessment of your situation. I am not a lawyer so can't answer the question about time limits, but suspect it should be sooner rather than later, although I understand the difficulty about your younger son. Feel free to contact me directly and confidentially..

  • Comment Link Monday, 09 October 2017 08:44 posted by Bill

    Hello Peter,

    In response to your response to my earlier post I would like to comment I am not trying to persuade you to alter your opinion.

    But the issue on removal from courses does not appear to be settled.

    This is another legal opinion:

    "Schools and colleges removing A Level students mid-course for non-disciplinary reasons are very likely to be acting unlawfully, and should take legal advice immediately."

    I also believe it may breach the 16-19 funding regulations, which seem to imply the student's consent is required to remove a child from a course.

    I'm not intending to get into any debate, but I thought you might be interested in the legal opinion attached above. PETER: Bill, this has been overtaken by the DfE instructions to schools quoted above. However, expect to see schools putting pressure on students to "choose to leave". Have just received notice of a contract being served at beginning of Year 13. If not high score in mocks, student will not be entered!

  • Comment Link Saturday, 07 October 2017 13:27 posted by St Olaves Unofficial News

    @Martin, we are very interested in anything that might prove St Olave's were aware they were operating an illegal policy, something the Head strenuously denies.

    If you have anything that can help us please contact our site using the contact form.

    Thanks, St Olave's Unofficial News. PETER: You will find the site at An excellent read about a famous school in meltdown. As with so many such cases in these pages, it appears all down to the one person who can take complete control of a school, if governors who have the legal responsibility abdicate that responsibility.

  • Comment Link Saturday, 09 September 2017 23:55 posted by Martin

    Dear Peter,

    At the Grammar School Headteachers Association conference in 2015, an Education Lawyer gave a presentation regarding Sixth Form admissions criteria. This individual has recently emailed Grammar Schools again in relation to the presentation and the recent press.
    I know that Invicta were present at this meeting.

    The email is copied below, but the header and footer is removed, what is shows is that all grammars present were left in no uncertanty that exclusion on the basis of performance in year 12 was legal...

    Dear all,
    Following recent media coverage on the use of exclusions within school sixth forms, we are writing to remind you of the rules surrounding exclusion from school, including school sixth forms, which apply to maintained and academy schools.
    Once a pupil has been admitted to a school, they can only be removed from the roll if they meet one of the criteria set out in the Education (Pupil Registration) (England) Regulations 2006, as amended. If a school sets academic entry standards for pupils to progress into the school sixth form, the Regulations say that they may remove pupils from their registers at this point if they have failed to meet these standards and will cease to be of compulsory school age before the school next meets. At all other points, including between Year 12 and 13, it is unlawful to remove pupils as a result of their academic attainment or ability.
    Schools can exclude pupils, either permanently or for a fixed period, for disciplinary reasons, and the Department supports schools in using exclusion where this is warranted. Exclusion on any grounds other than discipline is unlawful. Where a pupil is asked to leave the school, the formal exclusions process set out in the school exclusion guidance must be followed. Schools may not exclude pupils because of their academic attainment or ability. Sending a pupil home without recording it as an exclusion is also not permitted.
    Permanent exclusion should only be used as a last resort, in response to a serious breach or persistent breaches of the school's behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
    Further information, including the full formal exclusions process, can be found in the statutory guidance on exclusion from school
    School exclusions
    Department for Education PETER: ~Thank you so much for this, which appears to confirm that Invicta acted illegally with knowledge.

  • Comment Link Wednesday, 06 September 2017 14:41 posted by Bill

    It would be nice to have another legal opinion on this.
    Internal strategies would still be subject to JR, subject to grounds (there are at least 13 grounds for JR).
    I cannot see how a school could justify forcing a student to drop a course just because the grade was C in a mock exam (I do not think a D or E would be sufficient to force a student to drop a course).
    Offering advice is a different matter.
    The point of academic selection is Year 11 into Year 12. There is no progression to Year 13 as such: the student is on the school roll and may only be removed on the grounds set in the regulations. Trying to get rid of the student by removing all the courses does not seem to be playing by the rules. PETER: Sorry Bill, you appear to live in an idealistic world where all schools exist for the benefit of ALL their students, although of course the great majority do. They have the right to offer alternative courses if they claim to believe they are in the interests of students, but cannot offer them nothing. I am not a lawyer (but have been proven consistently right on the legality of this one) and have come under pressure to withdraw my very public view, but I can't see a legal challenge being made in such a case, when there is no legislation to cover it.

  • Comment Link Tuesday, 05 September 2017 21:52 posted by Martin

    Dear Peter,

    I spoke to the schools adjudicator relating to the invicta year 12 to year 13 admissions criteria. They referrred me to the DFE who at that time could give no sensible response. But below is the advise from ASCL...
    Following reports in the media, ASCL’s legal partner Browne Jacobson has provided the following clarification for members:
    Recent events have raised the issue of whether a student in a school sixth form can be removed at the conclusion of Year 12 if the grades achieved are not sufficient in the opinion of the school. The rules vary depending on the category of school and are summarised as follows:
    Maintained schools and academies
    Maintained schools and academies may set minimum academic requirements as part of their admission arrangements into the sixth form (Year 12). This is confirmed by paragraph 2.6 of the School Admissions Code 2014.
    Once part of the sixth form cohort, the student must be registered with the school in accordance with the Education (Pupil Registration) Regulations 2006. This, in turn, means the student may only be taken off the school roll in accordance with the limited grounds provided for by regulation 8(3), ie:
    * ceased to attend
    * continuous absence for over 20 school days
    * permanent exclusion or death
    Failure to comply with the regulations is a criminal offence punishable by a fine.
    Any decision to permanently exclude must follow the legal framework around exclusion, including the statutory guidance. Paragraph 13 of the 2017 exclusion guidance confirms that it is unlawful to exclude for a non-disciplinary reason such as academic attainment. A repeated failure to disobey teachers’ academic instructions could result in an exclusion.
    Any school policy around minimum academic requirements for transfer from Year 12 to 13, and where a potential outcome is for the student to be removed from the school, is likely to be subject to challenge.
    Schools need to consider their approach to this situation. Any policy or procedure around attainment levels within the sixth form needs to be clear and well-publicised to students, parents and carers in advance of the start of the sixth form provision. The policy should set out what standards are expected of a student during Year 12 in order to progress to Year 13, and also set out how the school will monitor the student and, where necessary, provide support.
    The policy, and more importantly, the practice in the school must reflect the need to understand the student and assist them make the choices that best support their wish to continue in education. A number of options may arise from these discussions:
    * Repeating the year.
    * Finding alternative courses better suited to their needs within the sixth form.
    * Moving to different institutions to continue their education.
    As stated above, the decision to remove the student cannot be made by the school unless the grounds in the Education (Pupil Registration) Regulations 2006 are satisfied, however, it would be appropriate to help the student make the right choices with respect to their education.
    In terms of policy and practice around education attainment, schools should consider whether a support package for students struggling in sixth form is appropriate and agree a suitable plan for the student to follow. Where a student fails to meet his/her obligations to attend sessions or fails to follow academic instructions, exclusion could be an option to bring the placement to an end.
    Again, it is important that such matters are made clear alongside the expectations placed on sixth form students. PETER: Thank you for this. I have added a sentence on the subject in my article. Note: ASCL is the Association for School and College Leaders, the 'union' for heads and deputies. So this is advice to schools, confirming they should have known the law beforehand!

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