GDPR AND EXCLUSION HEARINGS

[ahen]

Hi All

The DfE guidance around Exclusions (Sept 2017) contains statutory guidance advising the governing board in preparing for the consideration of an exclusion hearing that attendees are provided with the same evidence pack 5 days ahead of the hearing date ie, inclusion officer, social worker, parents and governors (and possibly others). DPOs of some schools are beginning to advise their respective school to only make this information available to attendees 1 hour prior to the meeting in order to avoid a personal data breach.

 

The guidance around exclusions is dated 2017 and is obviously pre-GDPR. Has anyone had any experience of this? I tend to feel that a either decision should be made on a case by case basis and that the decision should rest with the DPO or that the pack should ask all those in receipt to respect the confidentiality of the evidence and to return the document within an agreed period of time. Any thoughts?

 

Many thanks

Annette

[Ditto]

My view would be that schools should follow the statutory guidance. I'm unconvinced the timing has much impact on a possible data breach. By not following the guidance, I would be concerned that an unfair hearing claim could be made. I would be looking to follow up with ICO and DfE for further guidance. Edited November 29, 2019 by Ditto

[ahen]

Thanks Ditto, that's really helpful. I'm trying to follow up with ICO at the moment. Will update as soon as I manage to get some guidance.

[elsiegee40]

I am extremely experienced in Chairing Exclusion Panels, I chair them for a MAT, and having paperwork available only 1 hour before is totally ridiculous.

 

 

@ahen It is definitely not long enough to read and absorb a pile of papers that is frequently an inch thick.

 

Governors and schools are bound by the law. The statutory bit of Statutory Guidance means that this is the law... DPOs can’t ignore one law to comply with another!

 

You do as it says in the statutory guidance and make papers available to all parties (Governors on the panel, the family, the LA representative and those representing the school) 7 days in advance as set out in the guidance, ie the law.

 

Failure to do so would make the decision made my the panel unlawful.

 

Do take sensible precautions with paperwork. The clerk should ask Governors to collect it or post it using signed for delivery marking the envelope private and confidential. The Clerk should collect the paperwork from the Governors at the end of the meeting and store securely in case it is required for an Independent Review Panel.

 

GDPR is about balance and risk assessment not about making it impossible to do your job properly and thus not giving the excluded child the fair hearing they deserve.

Edited November 29, 2019 by elsiegee40

[forkies]

As already said above I would go with statutory guidance otherwise it opens you up to an appeal on any exclusion from the parents/their educational legal representative.

 

On the note of GDPR/DPA, we watermark all our packs once they are redacted in PDF, with the watermark stating who they are given to (I.E "PARENT COPY") so that they can be accounted for when they are returned and also if the parent loses their copy that it is clearly marked as their copy so we cannot be held responsible. As you can imagine if it was not watermarked and they lost their copy and it turned up they could say we lost it with all the school logos on the paperwork! I would strongly recommend this.

[elsiegee40]

I am properly appalled that any DPO is suggesting this.

 

I have shown it to some National Leaders of Governance who are similarly shocked.

 

One said “That advice could be costly if it ever got to court.”

 

Another “The process would be deemed unlawful on appeal as the correct procedures as stipulated by the DfE had not been followed. Personally, I think the DPO would also find his position at risk for clear and obvious failings.”

 

And a third “If someone really wanted to share personal info contained in the pack, they can do so within that hour! GDPR requirement is that personal data is shared if you can show a need for sharing it. Giving panel this data meets legal requirements. Just mark it confidential. I think the DPO needs training. And fast! They could land the school in big trouble!”

 

 

The Statutory Guidance that says the board “must circulate any written evidence and information, including a list of those who will be present, to all parties at least five school days in advance of the meeting”. (Note the word MUST!)

 

If a panel is called where the parties present don’t have the proper time to read the paperwork the panel should be postpone the hearing.

 

Doing otherwise is unlawful and result in the panel’s decision being overturned at appeal because the correct procedure was not followed.

 

If this is happening in your area then challenge it now!

 

This is a link to the Statutory Guidance:

https://www.gov.uk/government/publications/school-exclusion

Edited November 30, 2019 by elsiegee40

[GrumbleDook]

I’d be interested to why this has been recommended. Can you PM me some details please @ahen? Edited November 30, 2019 by elsiegee40