DES Circular 15/89 (1989)

This circular offered guidance on section 19 of the 1988 Education Reform Act and the 1989 Education (National Curriculum) (Temporary Exceptions for Individual Pupils) Regulations, which allowed head teachers of maintained schools to make temporary exceptions from the National Curriculum for individual pupils.

See also the covering letter from Jenny Bacon, sent out with this Circular.

Circular 15/89 (1989) was prepared for the web by Derek Gillard and uploaded on 17 March 2021.


Circular 15/89 (1989)
Education Reform Act 1988: temporary exceptions from the National Curriculum

Department of Education and Science
London: 1989
Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland.


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Department of Education and Science
Elizabeth House York Road London SE1 7PH

Circular 15/89 (1989)
(11 July 1989)

To: Local Education Authorities
Directors of Education of Inner London Boroughs and the City Education Adviser
Chairmen of Governing Bodies and Head Teachers of Maintained Schools
Teacher Training Institutions
Other Bodies

EDUCATION REFORM ACT 1988: TEMPORARY EXCEPTIONS FROM THE NATIONAL CURRICULUM

CONTENTS

Para
I INTRODUCTION1

II SCOPE
5
- Which schools?
- Which pupils?
- Which provisions?

III CASES AND CIRCUMSTANCES
9
- General directions
- Special directions

IV GIVING DIRECTIONS - PROCEDURES
21
- Reasons for the direction
- Effect of the direction
- Duration of the direction
- Information about the direction

V VARIATIONS
37

VI REVOCATIONS
41

VII RENEWALS
43

VIII PARENTAL REQUESTS AND APPEALS
49

IX SPECIAL DIRECTIONS
50

X RESOURCES
59

XI MONITORING
60

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ANNEXES

A. INFORMATION TO BE PROVIDED ABOUT DIRECTIONS, VARIATIONS, REVOCATIONS AND RENEWALS

B PROCEDURES FOR PARENTAL REQUESTS AND APPEALS







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I INTRODUCTION

1. The Education Reform Act 1988 (the ERA) places a duty on head teachers to ensure that the National Curriculum, as in force at the start of the school year, is provided for all pupils of compulsory school age on the register of their school, subject to certain limited exceptions authorised by Orders or Regulations.

2. This Circular covers Regulations made under Section 19 of the Act which allow head teachers of maintained schools to make temporary exceptions from the National Curriculum for individual registered pupils.

3. This Circular offers guidance on the provisions of Section 19 and the Education (National Curriculum) (Temporary Exceptions for Individual Pupils) Regulations 1989. The Regulations come into force on 1 August 1989. This Circular does not constitute an authoritative legal interpretation of the Act or Regulations: that is a matter for the Courts.

4. Enquiries about the content of this Circular should be addressed to:

Miss E Kirszberg
Schools Branch 3
Department of Education and Science
York Road
London SE1 7PH

Telephone: 01-934 9340

II SCOPE

Which schools?

5. The power to make temporary exceptions extends to head teachers of county and voluntary schools, maintained special schools not established in a hospital, and grant-maintained schools - ie all those who are under a duty by virtue of Section 10 of the ERA to secure that the National Curriculum is implemented in their school.

Which pupils?

6. The Regulations empower head teachers to give, vary or revoke directions modifying or lifting for a brief period National Curriculum requirements as they affect any individual registered pupil. Where exceptional arrangements already apply to such a pupil - through a statement of special educational needs (SEN) under Section 18 of the Act; for groups of pupils in the particular cases or circumstances specified in Section 17 Regulations or Section 4 Orders prescribing attainment targets, programmes of study and assessment arrangements; or for pupils in schools or classes which are the subject of Section 16 directions for experiment and development work(1) - it will still be possible to make a temporary exception under Section 19. However, before giving directions, head teachers should satisfy themselves that the pupil's needs cannot be accommodated within any of the exceptional provisions already available.

(1)These are described in DES Circular 5/89 - The Education Reform Act 1988: The School Curriculum and Assessment.


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Which provisions?

7. The temporary exceptions that may be made under these Regulations can modify or disapply any or all of the provisions of the National Curriculum. These provisions include the requirement (Section 10 of the Act) that schools should teach pupils all relevant foundation subjects for a reasonable time; and the Section 4 Orders setting out attainment targets, programmes of study and related assessment arrangements for individual subjects, once such Orders are brought into force.(2)

8. Temporary exceptions cannot be made to the provisions in Chapter 1 of the Act relating to the general requirement for a balanced and broadly based curriculum (Section 1), or the requirements in respect of qualifications and syllabuses (Section 5), religious education and collective worship (Sections 6-9), information (Section 22) or complaints (Section 23). These provisions all offer important general safeguards for pupils and their parents. Where, as in the case of the information requirements, some exceptional arrangements may be necessary, these will be secured in the relevant Regulations following separate consultation.

III CASES AND CIRCUMSTANCES

9. Section 19 Regulations allow, but in no circumstances require, temporary exceptions to be made under certain conditions. The Secretary of State expects head teachers to use their powers of direction sensitively and sparingly. All pupils should have the opportunity of benefiting from the National Curriculum. The National Curriculum framework provides wide scope for teachers to deal with the full range of individual pupils' needs without the need for exceptional arrangements.(3)

10. Head teachers may give directions in respect of an individual pupil only if they are of the opinion that it is for the time being inappropriate to offer the National Curriculum as it currently applies to him or her (ie subject to any existing exceptions through a SEN statement or under Section 4 Orders, Section 17 Regulations or Section 16 directions). The Secretary of State expects a head teacher to consider making a temporary exception for a particular pupil only in rare cases when it is clear that the pupil's present circumstances or conduct mean that he or she cannot fully participate in and benefit from the National Curriculum. Exceptions should be limited to modifying, or if necessary lifting, only as many aspects of the National Curriculum as are inappropriate for the pupil.

11. The Regulations define two further circumstances, one of which must be met before a head teacher can make a temporary exception. The first circumstance, set out in Regulation 3(1)(b)(i) - "general directions", is that the factors necessitating the exception are likely to have changed significantly in 6 months so that the pupil can be expected to undertake the full National Curriculum as it applies to him or her thereafter. (See paragraphs 13-18 below.) The second circumstance, set out in Regulation 3(1)(b)(ii) - "special directions", is that the head teacher believes that the pupil has a longer-term need for exceptions or modifications to the National Curriculum, which can only be made through a statement of special educational needs, and temporary exception is necessary while the process of assessment or reassessment takes place. (See paragraphs 19-20 below.)

(2) Circular 5/89 outlines the Government's latest thinking about the timetable for introducing the new requirements.

(3) Circulars 6/89 (The Education Reform Act 1988: National Curriculum: Mathematics and Science Orders under Section 4) and 10/89 (The Education Reform Act 1988: National Curriculum: English Key Stage One Order under Section 4) provide guidance on the scope offered by Section 4 Orders to cover the substantial majority of pupils, including some with special educational needs.


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12. Head teachers will need to exercise discretion in deciding when particular arrangements made for a pupil are sufficient to require a Section 19 direction. Head teachers and their staff may sometimes find it necessary to meet a pupil's particular needs in ways which require him or her to concentrate, perhaps for several weeks, on areas of particular weakness. Teachers should continue to be able to make such arrangements, and a direction will not be required to meet such a short-term contingency.

General Directions

13. General directions are those given by virtue of Regulation 3(1)(b)(i) - see paragraph 11 above. The Regulations do not list specific cases in which a temporary exception of this type may be made. Examples are given below where general directions could be needed to allow exceptions from aspects of the National Curriculum. This list is not intended to be exhaustive. Nor should it be assumed that all such cases as those listed below wIll need temporary exceptions. It is only in rare circumstances that a temporary exception should be considered.

a. Pupils who arrive from such a different educational system that they require a period of adjustment to the National Curriculum;

b. Pupils who have had spells in hospital, been educated at home or been excluded from school and need time to adjust;

c. Pupils who temporarily have severe emotional problems (perhaps because of a family crisis) and need special arrangements.

14. A head teacher's duty to implement the National Curriculum for all registered pupils extends to those pupils who are on the school's register but are being educated away from the school under temporary arrangements made by the head teacher, governing body or, in the case of a LEA-maintained school, local education authority. It therefore extends to registered pupils being educated at home, a hospital school or an off-site unit. Where it is impossible to offer pupils in such circumstances the full National Curriculum, the head teacher must give Section 19 directions. As long as pupils remain on the register, the school has a legal obligation to their continuing education.

15. The Secretary of State does not expect head teachers to give Section 19 directions temporarily excepting pupils from the National Curriculum if they are absent from school because of illness, holidays or other reasons beyond the head teacher's control. Where absence from school is avoidable, he would expect the school to take other appropriate steps to secure the pupil's full-time attendance.

16. Nor does the Secretary of State expect directions to be given in the case of pupils who are not receiving education because they have been temporarily excluded from school under the provisions of the Education (No 2) Act 1986 or, in the case of a grant-maintained school, its articles of government. He would however expect the school and, if it is LEA-maintained, the local education authority, to work within the relevant provisions to secure the early resolution of such cases so that pupils return to full-time education as soon as possible.

17. In cases of extended absence whether for reasons such as those given in paragraphs 15 and 16 above or for other reasons, it may nevertheless be appropriate to give general directions excepting the pupil from the full range of the National Curriculum requirements to enable him or her to adjust on return to school or full-time education. Head teachers will however wish to avoid making any temporary exceptions which mean that the pupil may lose further ground unnecessarily.


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18. The continuity offered by the National Curriculum should allow pupils who change schools frequently to be more readily integrated into a new school. There should be no assumption that pupils arriving from other schools or authorities will need a period of exceptional treatment.

Special directions

19. Special directions are those given by virtue of Regulation 3(1)(b)(ii) - see paragraph 11 above. They may be given to cover the period while pupils are being assessed for special educational needs or SEN statements are being prepared: section IX of this Circular gives further guidance on this.

20. The Secretary of State expects head teachers to give special directions only when they can present evidence to suggest a prima facie case for assessment. Even then a special direction will not always be necessary. Head teachers should bear in mind that it may be more difficult to carry out assessments if pupils have been excepted from aspects of the National Curriculum. They should consider in each case if there is a clear case for a direction, and should not assume that this will be so or prejudge the outcome of the assessment procedures. It will remain for the LEA to determine whether or not there are sufficient grounds for assessment.

V GIVING DIRECTIONS - PROCEDURES

21. This section outlines the requirements to be followed when a head teacher gives a direction. Unless otherwise specified, the requirements apply to both general and special directions.

22. A direction should be given separately for each pupil. This will enable variations or revocations to be made (see sections V-VI below) according to each pupil's circumstances and progress.

23. The Secretary of State expects that, before giving a direction, the head teacher will discuss the pupil's circumstances and needs with his or her parents(4) and teachers, and consult educational psychologists, medical officers or other specialist staff. In the case of a special direction, the Regulations require the head teacher to consult the LEA before giving a direction (see paragraph 51 below).

24. The head teacher should normally allow one calendar month after giving a direction before it comes into effect. This will allow parents and (except in the case of a general direction given by the head teacher of a grant-maintained school) the LEA the opportunity to query the reasons or suggest changes. However, when there is an urgent need for the temporary exception to start more quickly, the head teacher may give a direction that comes into effect in less than one month. In such cases the reason for the urgency must be specified in the direction.

Reasons for the direction

25. The direction must explain the action that is being taken, specify whether it is a general or special direction, and state why exceptional arrangements are necessary.

26. For a general direction, the Secretary of State expects head teachers to include why the pupil's present circumstances make it inappropriate to continue offering the National Curriculum

(4) "Parent" is defined in the Education Act 1944 as including a guardian and every person who has actual custody of a child.


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provisions that currently apply to him or her, how those circumstances seem likely to be changed over the period of the direction, and how the pupil will be enabled to adjust to those National Curriculum requirements that have been modified or lifted during the direction.

27. The slightly different requirements for special directions are outlined in paragraph 51 below.

Effect of the direction

28. Any direction must state which aspects of the National Curriculum are to be modified or lifted, and what alternative provision is being made for the pupil's education whilst the direction lasts. The Secretary of State expects head teachers to offer positive alternative arrangements in all cases, bearing in mind the overriding principles of Section 1 of the ERA.

Duration of the direction

29. Any direction must specify when the exceptional arrangements will start and end, or the factors which will determine their ending. An initial direction may last no longer than six calendar months.

30. For a general direction, a head teacher may set a shorter duration in terms of calendar months or some other event if that occurs before the six-month limit. Such events might include, for instance, return from an off-site unit. A general direction must also outline how the head teacher proposes to secure the reapplication of those National Curriculum provisions that have been modified or lifted by the direction when it comes to an end.

31. The duration of special directions is explained in paragraphs 54-56 below.

32. Any direction will cease to have effect if a pupil is removed from the register of a school. It is for the head teacher of any school to which such a pupil transfers to judge the pupil's needs and make provision accordingly. But a direction given by one head teacher will continue if he or she leaves the post: it will be treated as if given by his or her successor for the purposes of variation, revocation or renewal as in sections V-VII below.

33. The Secretary of State intends shortly to make Regulations under Section 218 of the ERA requiring governing bodies to maintain an educational record on every registered pupil and to transfer the record on request to any educational establishment to which the pupil transfers. The Secretary of State would expect such records to include details of any directions given under Section 19.

Information about the direction

34. The Secretary of State intends in due course to make Regulations under Section 22 of the Act requiring head teachers to give parents an annual curriculum plan for their child. The Regulations will require that a revised version of that plan should accompany any Section 19 direction. In the meantime, information about exceptional arrangements should be provided in a way which is likely to be understood by parents, but which also makes quite clear to which specific provisions of the ERA an exception applies.

35. Where the parents may have difficulty in understanding any direction, because of difficulty with reading or with understanding English, the head teacher should make appropriate arrangements to explain what is planned.


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36. Annex A sets out how head teachers should inform the various parties concerned of any direction or its renewal. They must include information about parents' right of appeal. (See section VIII below.)

V VARIATIONS

37. Head teachers may vary directions, whether general or special - eg if the pupil's circumstances change or new information about them comes to light. Directions may be varied in any respect other than by increasing their length.

38. The Secretary of State expects head teachers to keep the progress of pupils who are the subject of temporary exceptions under review. Where the need to vary a direction arises, they should discuss the pupil's changing circumstances and needs with his or her parents and teachers, and consult specialist staff before making the variation.

39. Head teachers must give notice in writing of any variation to the chairman of the governing body, the LEA (except in the case of a general direction varied by the head teacher of a grant-maintained school) and at least one parent. They must set out which provisions of the direction are to be varied, giving brief details of each variation and reasons for it. A variation should normally take effect one month after the head teacher has given notice of it unless exceptional circumstances make more urgent revision necessary.

40. The notice of variation should meet all the information requirements of an initial direction (see Annex A).

VI REVOCATIONS

41. Head teachers may also revoke directions of either type - eg if the pupil's circumstances change so markedly that exceptional arrangements cease to be appropriate. The Secretary of State expects head teachers, before doing so, to discuss their plans with the pupil's parents, teachers and any specialist staff who have been involved in the case.

42. When revoking a direction, head teachers must give notice in writing to the chairman of the governing body, the local education authority (except in the case of a general direction revoked by the head teacher of a grant-maintained school) and at least one parent, as described in Annex A. They must specify the date when it will take effect. They must also give reasons for revoking the direction and outline plans for securing the reapplication of the lifted or modified National Curriculum provisions, unless the plans are the same as originally specified in the direction in all respects except timing.

VII RENEWALS

43. Section 19 directions are not intended to provide long-term exemptions from the National Curriculum provisions. The majority of pupils for whom a general direction is given will be able to resume the full National Curriculum requirements that would normally apply to them within six months. There may however be exceptional cases where the original expectation that a pupil's circumstances would change sufficiently within six months to return to the full National Curriculum is not fulfilled.


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44. In such cases, head teachers may renew a general direction by issuing a further direction to run on consecutively. They may do this on up to 2 occasions for a further 3 calendar months only in each case. Before doing so, they must obtain the written consent of three members of the governing body. On the second occasion the head teacher of a LEA-maintained school must also obtain the authority's prior written consent. Directions may not be renewed for a third time. (See paragraphs 55-56 below for renewals of special directions.)

45. In rare cases, a pupil who has already been the subject of a temporary exception may undergo a further change in circumstances and require a new direction that does not fall within paragraph 44 above. In such cases, a head teacher who proposes to give a new direction for a pupil for whom he or she has given a previous direction must obtain the prior written consent of three members of the governing body and, in the case of a LEA-maintained school, the local education authority. A new direction may only be made if the reasons for it are different from those which gave rise to a previous direction.

46. Governing bodies may be involved in hearing appeals as well as giving consent to renewals or new directions. The Secretary of State expects them to make arrangements for considering renewals or new directions in such a way that would allow any subsequent appeal to be heard by governors who had not been involved in the earlier consideration of a particular case - eg by delegating an appeal hearing to a committee composed of different governors.

47. The Secretary of State expects that, before making a renewal or new direction, head teachers should again discuss the pupil's circumstances and needs with parents, teachers and any specialist staff involved in the case.

48. Whenever a renewal or new direction is made, the head teacher must make information available in accordance with Annex A. Parents have the right to make requests and appeal, as described below.

VIII PARENTAL REQUESTS AND APPEALS

49. Parents may ask for any direction to be given, varied, revoked or renewed. In cases of dissatisfaction they may appeal to the school's governing body. Annex B sets out in detail the procedures to be followed.

IX SPECIAL DIRECTIONS

50. This section outlines the requirements to be followed when a head teacher gives a direction for a pupil who in his or her opinion has or probably has special educational needs which are such that the local education authority would be required to determine the special educational provision that should be made for him or her whether initially or on review of an existing statement.(5) These requirements apply also to directions which started as general directions but have been varied for the purpose of a SEN assessment. Because of LEAs' responsibilities for the assessment of children in their area who need, or may need, special educational provision to be determined by the LEA to meet their needs, all the requirements apply to grant-maintained as well as LEA-maintained schools.

(5) The DES draft Circular which will replace Circular 1/83 on Assessments and Statements of Special Educational Needs will provide fuller guidance on the procedures for assessments and the making of statements within the education, health and social services.


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51. Head teachers must consult the LEA before giving a special direction. If, having done so, they decide to proceed with giving a special direction, they must include in it reasons for their opinion that the pupil has or probably has special educational needs requiring an assessment or the amendment of an existing statement. The Secretary of State expects head teachers to refer to any procedures the school has used to analyse and monitor the pupil's needs and difficulties, and any action taken to address them, including any special support offered.

52. The head teacher need not describe at the outset plans for reapplying the National Curriculum to the pupil in the event of a statement not being made or amended. But in other respects the direction should follow the requirements in section IV above, except where otherwise specified.

53. Information should be provided in accordance with Annex A. Head teachers of grant-maintained schools should note that they must inform the local education authority if they are of the opinion that a pupil has or probably has special educational needs that require an assessment under the Education Act 1981 which may lead to a first or amended statement.

54. Special directions will automatically end as soon as the statement is made or amended, and should be superseded by the special educational provision specified in that statement. If the LEA decides against assessment or has assessed (or reassessed) the pupil and decides not to make (or amend) a statement, it should inform the head teacher as soon as possible. The head teacher must then arrange for the pupil to resume the National Curriculum provisions which have been modified or lifted by the direction. Resumption must take place within one calendar month of the head teacher's receiving the LEA's notification, when the direction will expire. If the month expires during a school holiday, the National Curriculum should be re-applied when term resumes. The Secretary of State expects head teachers to keep parents informed.

55. If after six months the authority has neither made (nor amended) a statement nor informed the head teacher that it does not intend to do so, a special direction will automatically expire. In such cases, the head teacher may renew the direction once by issuing a further direction to run on consecutively. The renewed direction should end no later than one calendar month after the statement has been made (or amended) and in any event after six calendar months.

56. A head teacher may also renew a special direction, by issuing a further consecutive direction, if there is an appeal under the 1981 Act either against the decision of a LEA not to make a statement or against the content of a statement. A renewal for this purpose may last no longer than one month after completion of the appeal and in no event longer than six calendar months. Only one renewal may be made if the appeal is against a LEA's decision not to make a statement. If necessary, more than one renewal may be made if the appeal is against the content of a statement.

57. Whenever a renewal is made, the head teacher must make information available in accordance with Annex A. Parents have the right to make requests and appeal, as described in Annex B.

58. If head teachers are to make plans either to reapply National Curriculum requirements or to renew directions in good time, LEAs will need to keep them informed of progress in assessing pupils or in deciding not to assess them. In particular, if assessment is still taking place towards the end of a direction, the head teacher will need to know whether the authority expects this process to be completed within the period of the direction and, if not, when.


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X RESOURCES

59. The Secretary of State expects directions to be given for very few pupils. It is not anticipated that they will lead to any significant increase in expenditure.

XI MONITORING

60. The Secretary of State intends to keep the use of Section 19 Regulations under review.

61. The Education (School Curriculum and Related Information) Regulations 1989 require governing bodies to provide details in a particular format by 30 June each year of pupils for whom directions have been given. Such details are to be sent to the LEA in the case of LEA-maintained schools and the Secretary of State in the case of grant-maintained schools. LEAs are to send copies of the information they receive to the Secretary of State by 30 September.(6)


JOHN CAINES C.B.



(6) Circular 14/89: The Education (School Curriculum and Related Information) Regulations 1989 gives further guidance, including dates of implementation.


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ANNEX A

INFORMATION TO BE PROVIDED ABOUT DIRECTIONS, VARIATIONS, REVOCATIONS AND RENEWALS

1. Head teachers must give a direction, whether an initial direction or a renewal, in writing. They must also give notice of a variation or revocation in writing.

2. A copy must be kept at the school with the pupil's educational records.

3. Copies must be sent as soon as a direction or notice of variation or revocation is given and in any event within 3 working days to the chairman of the governing body, the local education authority (except in the case of a general direction given by the head teacher of a grant-maintained school) and at least one of the pupil's parents as registered at the school. Copies must be sent by first-class post.

4. Parents' copies must be sent to their registered address. Directions should include details of parents' right to appeal (see section VIII and Annex B).

5. Where head teachers have reason to believe that a parent may have difficulty in understanding the direction or notice, they must offer appropriate assistance - eg by providing an interpretation or translation of the documents, or arranging to discuss them with the parent, or in some other way.

6. When a head teacher renews a general direction or gives any new direction for a pupil for whom he or she has given a previous direction (see section VII), the requirements outlined in paragraphs 2-5 of this Annex apply to the written consent of three members of the governing body and, where required, the local education authority as well as the direction.




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ANNEX B

PROCEDURES FOR PARENTAL REQUESTS AND APPEALS

1. Parents may ask a head teacher to give a direction temporarily excepting their child from National Curriculum provisions. They may also ask for any direction that is already in force to be varied, revoked or renewed.

2. The Secretary of State expects that head teachers will discuss requests with parents and seek to resolve any differences without resort to formal procedures. Should this fail, parents may make a formal request either in writing or orally to the head teacher. They must give reasons for it.

3. Head teachers must respond to requests within a fortnight. If they accept the request, they must send copies of the direction or notice of variation or revocation to the parent, the governing body and, where appropriate, the LEA as outlined in Annex A.

4. If the head teacher decides not to meet the request, he or she must write to the parent giving reasons for rejecting it and details of the parent's right of appeal. Copies must be sent to the governing body and, in the case of a LEA-maintained school, the authority. Where the parent may have difficulty in understanding the letter, because of difficulty with reading or with understanding English, the head teacher should make appropriate arrangements to explain it. (See Annex A, paragraph 5.)

5. If the head teacher does not respond within a fortnight, the parent has the right of appeal to the governing body.

6. The Secretary of State expects governing bodies to hear appeals with all due speed. He is proposing that governing bodies should have discretion to delegate the hearing of appeals under Section 19 to any member of the governing body (except the head teacher) or to committees of governors.

7. The Secretary of State expects governing bodies to allow representations from parents, accompanied by a friend if they wish, as well as the head teacher and other specialist staff if necessary.

8. The governing body may either confirm the head teacher's action or direct him or her to take any other action they consider appropriate within the scope of the Regulations - ie give, vary or revoke a direction in the manner permitted. They must notify the parent and head teacher in writing of their decision.

9. The head teacher must comply with the governing body's decision.

10. In order to avoid continuing dispute and uncertainty, head teachers need not consider more than one request from a parent for a direction to be varied or revoked during the course of that direction. They must however consider a further request, if parents choose to make one, once a direction has been renewed.

11. If parents remain dissatisfied, they may make a complaint -

a. in the case of LEA-maintained schools, under arrangements made by the LEA and approved by the Secretary of State under Section 23 of the Act;

b. in the case of grant-maintained schools, under arrangements made by the governing body and approved by the Secretary of State in accordance with the school's articles of government.