Exclusions

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Exclusions law applies to all pupils in England who attend:

● Maintained schools● Academies and free schools● Pupil referral units (PRUs)

This includes pupils who are below and above compulsory school age, such as those in nurseries and sixth forms

An exclusion is simply any period of time during which a pupil is not permitted to attend classes or be on school grounds.

The statutory framework

Your primary resourceStatutory guidance published by the Department for Education:https://www.gov.uk/government/publications/school-exclusion

Based on legislation found in:

● The Education Act 2002, as amended by the Education Act 2011

● The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012

● The Education and Inspections Act 2006● The Education Act 1996● The Education (Provision of Full-Time

Education for Excluded Pupils) (England) Regulations 2007, as amended by the Education (Provision of Full-Time Education for Excluded Pupils) (England) (Amendment) Regulations 2014

Types of exclusions

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Fixed-term exclusions

Sometimes referred to as ‘suspensions,’ fixed-term exclusions are temporary.

● A pupil can be excluded for 1 or more fixed terms - for just part of the day (e.g. lunchtime exclusions) up to a maximum of 45 days Be aware that each lunchtime exclusion counts as half a day when determining the total number of days excluded per term and/or school year

● The headteacher can’t extend a fixed-term exclusion or convert a fixed-term exclusion into a permanent exclusion. However, they can issue a further fixed-period or a permanent exclusion to begin immediately after the end of the first fixed period

● As governors, this means you may have to be involved in multiple processes involving one pupil, as each exclusion must be considered independently

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Permanent exclusions

A permanent exclusion should always be a last resort and should only be taken:

1. In response to a serious breach, or persistent breaches, of the school's behaviour policy; and

2. Where a pupil’s behaviour means that allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

There's no set limit on how long after an incident a headteacher can exclude a pupil. A pupil's behaviour outside of school can also be considered as a reason for a permanent exclusion, if this is in line with your school's behaviour policy

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Internal exclusions

These aren’t formal exclusions and don't fall under the statutory exclusions framework. An example of an internal exclusion is sending a child to work in an isolation unit

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‘Informal’ or ‘unofficial’ exclusions

It’s unlawful to send a pupil home for any length of time without following the statutory exclusions process. The Department for Education (DfE) provides the example of sending a pupil home to ‘cool off’ in their statutory guidance.

Even if the parents agree, any event in which a pupil is sent home is an exclusion and all formal exclusion procedures must be followed, including recording the exclusion.

The exclusions process

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The exclusions process

Only headteachers or those acting in the capacity of headteacher can decide to exclude a pupil. In all cases, the decision to exclude must be lawful, rational, reasonable, fair, and proportionate.

Headteachers also have the power to withdraw an exclusion prior to the governing board convening the panel to consider the exclusion.

n all cases, the headteacher must notify, without delay:

● The parents● Their local authority (and that of the pupil, if the pupil resides in a different LA)● The governing board

Your role in the exclusions process

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Governors’ responsibilitiesDepending upon the circumstances of the exclusion (e.g. fixed-term or permanent, number of days excluded, etc.), you may be called upon to perform a number of tasks. These might include:

● Sitting on a governors' exclusion panel to formally review an exclusion and decide whether to reinstate the pupil

● Chairing a governors' exclusion panel● Ensuring alternative education for those pupils on fixed-term exclusion for more than

5 days ● Considering complaints from the parents related to an exclusion● Sitting on an independent review panel that reviews the decision of the governors'

exclusion panel

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Your roleWhen a pupil is excluded, the governing board has a duty to ‘consider parents’ representations’ about the exclusion.

The whether that’s required and the power it has regarding the exclusion depends on the circumstances.

Where one is required, the selected governors should meet to review the headteacher’s decision. They have the power to do one of two things:

● Uphold the headteacher’s decision to exclude● Reinstate the pupil

You must make "reasonable endeavours" to arrange the meeting to review the exclusion at a date and time that is convenient to all parties and is within the relevant statutory time limits.

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Statutory timeframes

The time limit is 15 school days for:

● All permanent exclusions● All fixed-period exclusions of pupils who have been

excluded for more than 15 school days in the term● All fixed-period exclusions that would result in a pupil

missing a public examination or National Curriculum test

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Statutory timeframes

The time limit is 50 school days for a fixed-period exclusion of more than 5 but up to 15 days in a term (including the 15th day), and there’s no time limit for exclusions of fewer than 5 days in a term

Governors’ exclusions panel: membership

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Size of the panel

The governing board decides who sits on an exclusions panel. In maintained schools, there must be at least 3 governors as described in The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013.

Academies can have smaller committees if their trust's articles of association permit it (see page 18 of the DfE exclusions guidance).

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Membership

The panel should be impartial

● Anyone who sits on the panel should have no prior connection to the pupil● Governors should first only be asked if they're available to consider an exclusion. The name

of the pupil shouldn’t be given to the full board● Then, those chosen governors should be given the name of the pupil and they can notify

the chair and clerk if they have any connection. Any governor with a connection should be replaced

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Membership

Staff governors● It's unlikely that staff governors wouldn't have prior knowledge of the pupil● It could also be inappropriate for a staff governor because of their relationship with the

headteacher, so it's normally best to avoid this

Parent governors● Parent governors can sit on the panel as long as they don't know the child or their parents● Try not to have a parent on the panel if they have a child in the same year group as the

pupil being excluded

Associate members/people who aren’t trustees

● Associate members of maintained schools can sit on exclusion panels and vote, as long as at least 3 of the other members are governors.

● Similarly, people who aren’t trustees can sit on the panel in academies if your articles of association permit it

Governors’ exclusions panel: procedures

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Before the meeting

The clerk should ask for any written statements and/or evidence in advance and circulate these documents, along with the agenda, to all parties at least 5 days in advance (if possible). At a minimum, these should include:

● A list of those who will be present at the meeting● Any written statements● Other relevant information held by the school, for example, information relating to a pupil's

special educational needs (SEN)

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Who must attend

The following people must be invited to the meeting and allowed to make statements:

● The parents● The headteacher● A representative of the local authority (if you're a maintained school)

While academies are not required to invite a representative of the local authority (LA), parents may invite them as an observer. The LA representative may only make representations with the panel’s consent.

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Who may attend

Parents have the right to be accompanied by a friend or representative. The friend is there to accompany and support the parent.

You should permit the friend or representative to make statements or ask questions on the parents’ behalf if they request it. Questions could be determined beforehand and provided to attendees in advance of the hearing, although this is not essential.

The pupil should be encouraged to attend to speak on their own behalf if they’re able to do so.

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During the meeting

There’s no set procedures for conducting the meeting, but we suggest:

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Deliberation

All parties should withdraw when the exclusions panel is ready to start deliberating.

The clerk should remain available to:

● Refer to their notes if the panel needs it● Help the panel with the wording of the decision letter● Minute the reasons behind the committee's decision, including the main points of the

discussion

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Standard of proof

In these proceedings, you have to determine whether a fact is ‘more likely than not’ to be true. This is called the civil standard of proof, and shouldn’t be confused with the criminal standard of ‘beyond reasonable doubt’

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Making a decisionDuring the meeting, you must consider all of the evidence to determine:

“...whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the headteacher’s legal duties and any evidence that was presented to the governing board in relation to the decision to exclude.”

To reach your decision, you could also consider:

● The interests and circumstances of the pupil who has been excluded, including the circumstances in which the pupil was excluded

● The interests of other pupils and people working at the school● Whether the headteacher has taken all possible steps to establish the true facts of the

incident that prompted the exclusion● The likely impact of the exclusion on the pupil who has been excluded● The likely impact on the school, and whether the exclusion can be considered an

appropriate sanction

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Communicating your decisionThe panel has the power to do one of two things:

● Uphold the headteacher’s decision to exclude● Reinstate the pupil

You must notify parents, the headteacher and the local authority of your decision, and the reasoning behind it. This should be in writing and without delay.

Where the pupil resides in a different LA from the one that maintains the school, you must also inform the pupil's ‘home authority’.

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If it’s a permanent exclusionYour notification must state the fact that it's permanent and that the parents have a right to request the decision be reviewed by an independent review panel.

This notice must include:● The date by which an application for a review must be made (15 school days from the date on which notice

in writing of the governing board's decision was given to parents)● The name and address to whom an application for a review (and any written evidence) should be

submitted● That any application should set out the grounds on which it is being made and that, where appropriate,

this should include a reference to how the pupil’s special educational needs are considered to be relevant to the exclusion

● That, regardless of whether the pupil has recognised special educational needs, parents have a right to require the LA or academy trust to appoint an SEN expert to attend the review

● Details of the role of the SEN expert and that there would be no cost to parents for this appointment● That parents must make clear if they wish for a SEN expert to be appointed in any application for a review● That parents may, at their own expense, appoint someone to make written and/or oral representations to

the panel and that parents may also bring a friend to the review● That they can make a claim under the Equality Act 2010 if they believe the exclusion has occurred as a

result of discrimination. This is in addition to the right to apply for an independent review panel

Appeals

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Types of appeals

Parents have the right to appeal a permanent exclusion by:

● Requesting an independent review panel - an independent panel of specially-trained people convened by the LA or the trust to hear an appeal from a permanent exclusion

● Making a claim under the Equality Act 2010 - If they believe the exclusion has occurred as a result of discrimination, they can request a hearing before the tribunal. This is in addition to the right to apply for an independent review panel

Both of these are quite rare, and beyond our discussion here today

Special considerations

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Lawful vs. unlawful

Exclusions are only ever lawful when they are taken for disciplinary reasons. In the case of permanent exclusions, both of these must be true:

1. In response to a serious breach, or persistent breaches, of the school's behaviour policy; and

2. Where a pupil’s behaviour means that allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

It's unlawful to exclude a child for nondisciplinary reasons. Examples of unlawful reasons include:

● The actions of the pupil’s parents● The pupil having additional needs or a disability that the school feels unable to meet● Poor academic ability or attainment● The pupil failing to meet specific conditions before they're reinstated, such as failing to

attend a reintegration meeting

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Rational and reasonable

You’ll have to determine whether the headteacher acted rationally and reasonably in excluding the pupil.

We can look to the principles of judicial review to get an understanding of when a decision is irrational:

● Did the headteacher rely on irrelevant points?● Did they fail to take account of all relevant points?● Did they make a decision so unreasonable that no headteacher acting reasonably in

such circumstances could have made it?

Vulnerable pupils and the Equality Act 2010

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Groups with disproportionately high rates of exclusionCertain groups of pupils are more likely to be excluded. These include:

● Pupils with special educational needs (SEN)● Children who qualify for free school meals● Looked after children● Children from certain ethnic groups - Gypsy/Roma, Travellers of Irish heritage and

Caribbean pupils

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Pupils with EHC plans and LAC

Pupils with Education, Health and Care (EHC) plans and looked after children (LAC) have been identified as being particularly vulnerable to the impact of exclusion. As a result, headteachers should, as far as possible, avoid permanently excluding these pupils.

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Evidence to look for

Whenever you’re considering the exclusion of a pupil from one of these groups, you should seek extensive evidence that the school:● Engaged proactively with parents, social workers, foster carers, and local authorities to

support these pupils● Took steps to identify and address the specific needs of these pupils● Intervened early to try to mitigate problems before they reached the level of exclusion

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Equality Act 2010

Your school’s obligations under the Equality Act extend to exclusions. This means pupils can’t be excluded on the basis of:

● Sex ● Race● Religion or belief● Sexual orientation● Gender reassignment● Pregnancy and maternity● Age● Disability

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Forms of discrimination in exclusionsDirect discrimination - Excluding a pupil as a direct result of a protected characteristic

Indirect discrimination - Excluding a pupil under a policy or practice which, though applied equally to all pupils, has a disproportionate impact on a group of pupils sharing a protected characteristic

Discrimination arising from disability - Excluding a pupil for something that, while not in itself a disability, is the direct result of a disability

Any time you think discrimination might have played a role in an exclusion, you should seek legal advice.

The Timpson Report - what we expect will change

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What was in the reportIn March 2018 the government commissioned a review of school exclusion to:

● Study current exclusion practice● Understand why some groups of pupils are more likely to be excluded

The results were published on 7 May 2019 and included 30 recommendations "that seek to ensure that exclusion is used consistently and appropriately, and that enable our schools system to create the best possible conditions for every child to thrive and progress."

On the back of the report, the government has made 4 core promises:

1. Support headteachers to maintain safe and orderly environments for the benefit of all pupils and staff

2. Support schools to put effective interventions in place to give pupils at risk of exclusion the best chance to succeed

3. Provide greater clarity on when and how it's appropriate for pupils to be removed, and make sure there's sufficient oversight when pupils move around the education system

4. Support schools and alternative provision (AP) providers so excluded pupils continue to receive high-quality education

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What the government has promised to change1. Schools will be accountable for the outcomes of permanently excluded pupils● The report suggested this approach, and also that schools should be responsible for

commissioning AP where necessary● The government will launch a consultation in the autumn on how to actually deliver on

these reforms, and how to tackle potential unintended consequences (like schools off-rolling pupils to avoid permanent exclusions – more on this in a minute)

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What the government has promised to change2. Exclusions guidance will be updated by September 2020The report found a lack of uniformity in exclusion practice – behaviour that gets a pupil excluded in one school might not in another. It also identified issues with:

● In-school units – some schools use these well, but if used poorly they can effectively take pupils out of education

● Managed moves – many schools use these as well thought out alternatives to exclusion that work in the pupil's best interests, but lack of guidance has also led to unsuccessful and uncoordinated moves, creating a 'shunting game'

● Fixed-term exclusions – currently, schools are only required to arrange AP for exclusions of more than 5 days. Since pupils can be excluded for up to 45 days in a school year, it would be possible for a child to be out of education for all 45 days if each exclusion was for 5 days or less

In response, the government will update its guidance to ensure uniformity not only in exclusions but also in behaviour management and discipline.

It'll also consider changing the rules on fixed-term exclusions, after public consultation (it doesn't say when that'll be though)

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What the government has promised to change3. Governing boards will be expected to review all pupil movements● The government's response says that governing boards, directors of children's services,

and local forums of schools should review information on children who leave (whether through exclusion or other reasons) and establish a shared understanding of how the data feeds into local trends.

● The goal will be to improve practice and reduce disparities, with particular reference to pupils at greatest risk of exclusion such as those with special educational needs (SEN), those who have a social worker and children of particular ethnic backgrounds.

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What the government has promised to change4. The government will work with Ofsted to define and tackle off-rolling● There's currently no legal definition of off-rolling, but Ofsted defines it as:

○ “The practice of removing a pupil from the school roll without a formal, permanent exclusion or by encouraging a parent to remove their child from the school roll, when the removal is primarily in the interests of the school rather than in the best interests of the pupil.”

● Under the 2019 Ofsted inspection framework, schools found doing it will have their leadership and management judged 'inadequate’

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What the government has promised to change5. The government will increase support for alternative provision (AP)The report called on the government to make capital investment in alternative provision a priority.

Though the government’s response makes no specific commitment on this aside from conducting a budget review, it has committed to creating a new AP workforce programme to attract and develop high-quality staff. There'll be more information on this in the autumn.

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More key pointsThe report made other recommendations, most of which will be considered as part of consultations, reviews and reforms that are in progress or coming up, so we may hear more on them soon. These include calls to:

● Rebrand pupil referral units to properly identify them as specialised schools that educate and support children to overcome barriers to education

● Reform school funding to remove the incentive for schools to exclude at certain points in the year or be discouraged from admitting excluded pupils

● Expand training for governors so they can properly challenge pupil movements, including:○ Exclusions○ Managed moves○ Direction into alternative provision

● Systematically track pupil movements to increase transparency and ensure children don't fall through the cracks

● Consider implementing a 'right to return' period for parents who've chosen or been pressured into homeschooling, where pupils can return to their previous school

● For children in need, require that the social worker be notified whenever the child is moved from school for any reason. They should also be involved in any processes for challenging, reconsidering or reviewing decisions to exclude

The Key for School GovernorsFor more information please contact:

Linda UnternahrerTel: 020 8057 9815Email: linda.unternahrer@thekeysupport.com