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School Exclusion

What is exclusion?

Exclusion is the formal sending home of a pupil from school for disciplinary reasons. An exclusion can be fixed term (temporary) or permanent. A pupil is not allowed in school while they are excluded.

All state-funded mainstream and special schools, including academies and free schools, must follow the government statutory guidance on Exclusions (find the link below).

The information here is about exclusions from state-funded schools and pupil referral units. Independent schools do not have to follow this guidance, and they will have their own exclusion procedures.

Schools must have a behaviour policy setting out the school rules and the consequences if pupils break the rules, including the circumstances where exclusion might be used. In some situations, a pupil can be excluded for behaviour outside school. Exclusion may be for a series of incidents, often described as “persistent disruptive behaviour”, or for more serious “one off” incidents.

Only Head Teachers can exclude children from school and must only do so for disciplinary reasons.

Unofficial or informal exclusions (like sending a child home to ‘cool off’ or reducing a child’s timetable on the basis that the school can’t meet the child’s needs) are unlawful – even if parents have given permission for their child to go home.

There are two types of exclusion, fixed term and permanent.

In what circumstances can a child be excluded?

A pupil must only be excluded on disciplinary grounds. The decision to exclude must be:

  • Lawful
  • Rational
  • Reasonable
  • Fair
  • Proportionate

The behaviour of pupils outside of school can be considered as grounds for exclusion. The school’s behaviour policy will set out when a pupil’s behaviour outside of school premises may lead to disciplinary sanctions.

A decision to exclude a pupil permanently should only be taken: “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”.

When reaching the decision to exclude a child, the head teacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’, which means it is more likely than not that a fact is true.

Under the Equality Act 2010 schools must not discriminate against, harass or victimise pupils because of their:

  • Sex
  • Race
  • Disability
  • Religion or belief
  • Sexual orientation
  • Because of a pregnancy / maternity; or
  • Because of a gender reassignment.

For disabled children, this includes a duty to make ‘reasonable adjustments’ to policies and practices. It is unlawful to exclude or to increase the severity of an exclusion for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet. It would also be unlawful to exclude for a reason such as:

  • Academic attainment / ability;
  • The action of a pupil’s parents;
  • The failure of a pupil to meet specific conditions before they are reinstated such as attend a reintegration meeting.

A fixed period exclusion is where the child is temporarily removed from school. Children can only be removed for a maximum of 45 days a year, even if they have changed schools within that year.

For the first five days of exclusion, schools must take reasonable steps to set and mark work for the child to complete. The Head Teacher should send a formal letter setting out the reasons and conditions of the exclusion and should also specify how the school will provide work for the child to complete during the first five days. Work that is provided should be accessible and achievable by pupils outside of school.

For a fixed period exclusion of more than five school days, the governing body (or local authority in relation to a pupil excluded from a pupil referral unit) must arrange suitable full-time education for any pupil of compulsory school age. This provision must begin no later than the sixth day of the exclusion.

Permanent exclusion means the child has been expelled from the school. It is the local authority’s duty to provide alternative, suitable, full- time education no later than the 6th school day after the exclusion. This applies to all children of compulsory school age resident in the local authority area, whatever type of school they attend.

The case for reinstating an excluded pupil

Within 15 days of receiving notice of the exclusion, the governing body must consider the reinstatement of the pupil 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.

When making this decision, the governing body must arrange a meeting to discuss the exclusion, with the parents, the headteacher/principal and a representative from the Local Authority (LA), at a convenient time for all parties. The governing body must then either uphold the exclusion or direct that the pupil be reinstated immediately/on a particular date.

Challenging a decision to exclude a child

There are two main courses of action that parents can take to challenge a decision to exclude a pupil. Firstly, parents can request that the LA/academy set up an Independent Review Panel (IRP) to review the decision. Parents must lodge their review application within 15 school days of receiving the decision. The LA must then arrange a mutually convenient date for the all parties to meet before a three to five person panel, which must include members with experience of being a school governor or headteacher.

Alternatively, if parents consider their child to have experienced discrimination, they may make a claim to the First-tier Tribunal [Special Educational Needs & Disability] (for disability discrimination) or a County Court (for other forms of discrimination).

Children with SEN

It is unlawful to exclude a child because the school says it can’t meet the child’s SEN. The school must look at putting alternative provisions in place and assessing what additional support the child requires, through SEN Support or an EHC assessment / plan.

If a child has been permanently excluded, then the local authority has a duty to provide an alternative provision that will be able to meet the child’s needs. If the child has a an EHCP the local authority must also consult with the parents before naming the alternative provision. The EHCP are still both legally binding documents and the local authority has a continuing duty to provide the educational provision set out in section F. Further information and resources

Statutory Government Exclusion Guidance
https://childlawadvice.org.uk/information-pages/school-exclusion/
School’s duties on Exclusions

Disclaimer: SIASS has made all reasonable efforts to ensure that the information contained here is accurate and up to date at the time of publication. It does not constitute legal advice and SIASS cannot accept any responsibility for any loss or damage suffered as a consequence of any reliance placed upon it.