Exclusion
What is an Exclusion?
* When using the term “parents” this refers to all those that have parental responsibility and any person (e.g. a foster carer) with whom the child lives.
**When reference is made to “days” this equates to school days
What is an Exclusion?
Exclusion is a disciplinary sanction, which is used when a pupil breaches a school’s Behaviour and/or Discipline Policy(ies). An Exclusion means that a pupil is not allowed on the school premises for the duration of the Exclusion.
A pupil may be excluded for one or more fixed periods (up to a maximum of 45 school days in a single academic year), or permanently.
There are two types of Exclusion:
- Fixed-Term Exclusion
- Permanent Exclusion
Fixed-Term Exclusion
- A set number of days, after which the pupil returns to school.
- The school must inform the parents/carers explaining the reasons for the exclusion and how long it is to last.
- For the first five days, the school should set and mark work for the pupil.
- If the exclusion is for more than five days, the school (Governing Body) must make arrangements for alternative education for the pupil, as from the sixth day.
- During the exclusion, the pupil must not be in a public place during school hours and the parents are responsible for the whereabouts of the pupil.
- On returning to school, there will be a re-integration meeting, in which all those concerned can discuss the best way forward for the pupil.
- Parents may have a right to challenge the exclusion through written representation to the Governing Body. Parents may also request a meeting with the Governing Body. Governors may then decide whether or not to reinstate a pupil and if the Head teachers decision to exclude was justified based on the evidence.
- If there is alleged disability discrimination, appeals can be heard by the First-Tier (SEND) Tribunal. Making a claim would not affect your right to make representations to the Governing Body.
Permanent Exclusion
- For the first five days, the parents are responsible for the pupil’s whereabouts and he/she must not be in a public place during school hours.
- For the first five days, the school should set and mark work for the pupil.
- An assessment of the pupil should be undertaken by the Local Authority, so that a long-term re-integration plan for a new placement can be devised.
- The Local Authority must arrange suitable full time education for the pupil to begin no later than the sixth day of the exclusion.
- Where a pupil has a statement of SEN, the Local Authority must ensure that an appropriate full time placement is identified in consultation with the parents, who retain their rights to express a preference for a school that they wish their child to attend, or make representations for a placement in any other school.
- The school’s Governing body will meet to decide whether or not to reinstate a pupil and if the Head teacher’s decision to exclude was justified based on the evidence.
- Parents and the pupil will have an opportunity to present their point of view, regarding the exclusion. At that meeting the Governors will either uphold the exclusion, or reinstate the pupil.
- If the permanent exclusion is upheld by the Governors, the parents have the right to appeal to an Independent Review Panel.
- If there is alleged disability discrimination, appeals can be heard by the First-Tier (SEND) Tribunal. Making a claim would not affect your right to make representations to the Governing Body.
*Only the head teacher of a school can exclude a pupil.
Why would a pupil be excluded?
A decision to exclude a pupil permanently should only be used as a last resort and taken:
- in response to serious or persistent breaches of the school's behaviour policy;
- where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
When establishing the facts in relation to an exclusion decision the head teacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true, rather than the criminal standard of ‘beyond reasonable doubt’.
*** The behaviour of pupils outside school can be considered as grounds for exclusion. This will be a matter of judgement for the head teacher in accordance with the school’s published behaviour policy.
What if my child has Special Educational Needs?
There are certain factors that should be taken into consideration for children who display disruptive behaviour that is as a result of their Special Educational Need (SEN).
- Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs.
- Early intervention to address underlying causes of disruptive behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have.
- Head teachers should also consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour.
- Head teachers and governing bodies must take account of their statutory duties in relation to SEN when administering the exclusion process. This includes having regard to the SEN Code of Practice.
- Where a school has concerns abouth the behaviour, or risk of exclusion, of a child with additional needs, a pupil with a statement of SEN or looked after child, it should in partnership with others (including the Local Authority as necessary) consider what additional support or alternative placement may be required.
The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty under the Equality Act 2010 not to discriminate against pupils on the basis of protected characteristics, such as disability.
Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. This includes the duty to make reasonable adjustments to policies and practices in order that their policies and practices do not discriminate against pupils by unfairly increasing their risk of exclusion.
In addition, The Public Sector Equality Duty means schools must have regard to the need to:
- Eliminate discrimination and other conduct that is prohibited by the Equality Act.
- advance equality of opportunity between people who share a protected characteristic and people who do not share it.
When deciding whether to exclude a pupil with a statement:
- Headteachers should, as far as possible, avoid excluding permanently any pupil with a statement of SEN.
- Where a pupil has a statement of SEN and is at risk of exclusion, schools should consider requesting an early annual review or interim/ emergency review.
What happens following an exclusion?
Whenever a head teacher excludes a pupil of compulsory age they must, without delay, notify parents of the period of the exclusion and the reasons for it.
In addition the head teacher must also notify the governing body and Local Authority of:
- a permanent exclusion (including where a fixed period exclusion is made permanent);
- exclusions which would result in the pupil being excluded for more than five school days (or more than ten lunchtimes) in a term; and
- exclusions which would result in the pupil missing a public examination or national curriculum test.
For the first five school days of an exclusion (or until the start date of any alternative provision where this is earlier) parents are legally required to ensure that their child is not present in a public place during school hours without reasonable justification, and parents may be given a fixed penalty notice or prosecuted if they fail to do so.
Schools should take reasonable steps to set and mark work for pupils during the first five school days of an exclusion.
Alternative provision must be arranged by the school from the sixth day.
The governing body’s duty to consider an exclusion
The governing body has a duty to consider parents' representations about an exclusion.
The governing body must consider the reinstatement of an excluded pupil within 15 school days of receiving notice of the exclusion if:
- The exclusion is permanent;
- it is a fixed period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term; or
- it would result in a pupil missing a public examination or national curriculum test.
If a pupil would be excluded from school for more than five school days, but not more than 15, in a single term, and requested to do so by the parents, the governing body must consider the reinstatement of an excluded pupil within 50 school days of receiving notice of the exclusion.
In the case of a fixed period exclusion which does not bring the pupil's total number of days of exclusion to more than five in a term, the governing body must consider any representations made by parents, but it cannot direct reinstatement as it does not have the power to overturn the head teacher’s decision and is not required to arrange a meeting with parents. In this case they should consider whether it would be appropriate to place a note of their findings on the pupil’s educational record.
When establishing the facts in relation to an exclusion decision the governing body must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true rather than the criminal standard of ‘beyond reasonable doubt’.
Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.
In the light of their consideration, the governing body may (where applicable):
- uphold an exclusion; or
- direct reinstatement of the pupil immediately or on a particular date.
Where reinstatement is not practical because for example, the pupil has already returned to school following the expiry of a fixed period exclusion or the parents make clear they do not want their child reinstated, the governing body must, in any event, consider whether the head teacher's decision to exclude the child was justified based on the evidence.
In reaching a decision on whether or not to reinstate a pupil, the governing body should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the head teacher’s legal duties.
In the case of a permanent exclusion the parents have the right to ask for the decision to be reviewed by an Independent Review Panel.
Where there is an allegation of discrimination (under the Equality Act 2010) in relation to a fixed-period or permanent exclusion, parents can also make a claim to the First-Tier (SEND) Tribunal (for disability discrimination) up to six months after the discrimination is alleged to have occurred.
If the tribunal agrees, parent can request an expedited hearing and the case will be heard in no more than six weeks from application to judgement.
The Tribunal can order the Responsible Body to do anything reasonable to put right the effects of the discrimination, including reinstatement of the pupil. However, the law does not allow payment of compensation.
Please click here for a flow chart summary of the governing body's duties to review a head teacher's exclusion decision.
What is an Independent Review Panel?
If applied for by parents within the legal time frame, the local authority or (in the case of an Academy) the Academy Trust must, at their own expense, arrange for an independent review panel hearing to review the decision of a governing body not to reinstate a permanently excluded pupil.
The legal time frame for an application is:
- within 15 school days of notice being given to the parents by the governing body of their decision to uphold a permanent exclusion or
- where an application has not been made within this time frame, within 15 school days of the final determination of a claim of discrimination under the Equality Act 2010 in relation to the exclusion.
If requested by parents in their application for an independent review panel, the local authority/Academy Trust must appoint an SEN expert to attend the panel and cover the associated costs of this appointment. The SEN expert’s role is like that of an expert witness, providing impartial advice to the panel on how special educational needs might be relevant to the exclusion, for example, whether the school acted reasonably in relation to its legal duties when excluding the pupil.
Parents have a right to request the attendance of an SEN expert at a review, regardless of whether the school recognises that their child has SEN.
The role of the panel is to review the governing body’s decision not to reinstate a permanently excluded pupil. In reviewing the decision the panel must consider the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded, and have regard to the interests of other pupils and people working at the school.
The panel must apply the civil standard of proof, (i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true) rather than the criminal standard of ‘beyond reasonable doubt’.
Following its review the panel can decide to:
- uphold the exclusion decision;
- recommend that the governing body reconsiders their decision, or
- quash the decision and direct that the governing body considers the exclusion again.
An independent review panel does not have the power to direct a governing body to reinstate an excluded pupil. However, where a panel decides that a governing body’s decision is flawed when considered in the light of the principles applicable on an application for judicial review, it can direct a governing body to reconsider its decision. If the governing body does not subsequently offer to reinstate a pupil, the panel will be expected to order that the school makes an additional payment of £4,000. This payment will go to the local authority towards the costs of providing alternative provision.
Does this apply to Academies?
Yes.
The information in this summary is taken from the Department for Education document Exclusion from maintained schools, Academies and pupil referral units in England: A guide for those with legal responsibilities in relation to exclusion.
Whilst Academies are accountable centrally, through their funding agreement with the Secretary of State, the School Discipline (Pupil Exclusions and Reviews)(England) Regulations 2012 have been applied directly to academies. As this is linked to primary legislation, these regulations override the terms of the individual funding agreements. This provides clarity and consistency across all academies.
For further information:
Please contact the ask Parent Partnership Service on 01380 871200 or visit the following websites:
- Statutory guidance that schools (including Academies) are expected to follow
- Behaviour and Discipline in Schools - a guide for headteachers and school staff
- For further national Exclusions guidance
- Equality and Human Rights Commission
- www.ipsea.org.uk
- Wiltshire Educational Welfare Service and Exclusion Advice - The Education Welfare Service works with schools and families to support all children of statutory school age, so they achieve and maintain excellent attendance at school. It also works in partnership with a variety of agencies (both voluntary and statutory). This approach aims to prevent and resolve difficulties that may lead to absence from school. In particular, the Education Welfare Service focuses on reducing truancy and exclusion.
Share this post
