The law and exclusions
Some children may find themselves at risk of being excluded, either on a fixed term or permanent basis. Exclusion should be seen as a last resort and, where possible, steps should be taken by the school to prevent the exclusion from taking place.
Guidance exists which all maintained schools, sixth form colleges (forming part of a maintained school and without separate procedures) and pupil referral units must comply with. The guidance should be followed unless there are exceptional reasons not to do so.
Academies, because of their funding agreements, must also have regard to this guidance. This means that the procedures followed by academies should not depart significantly from those in this guidance without good reason.
A number of options should be considered before the decision to exclude either on a fixed term or permanent basis is made, such as:
- Engaging with the parents
- Considering whether more support is needed either through statutory assessment, or by intervention from the special educational needs co-ordinator (SENCo)
- Managed moves
- Placement temporarily in a learning support centre
- Identification of a key worker such as a learning mentor
- A change of teaching set or class
- Internal exclusion
- Restorative justice
This list is not exhaustive. In some circumstances a head teacher may feel that they have no choice but to exclude a pupil.
If a pupil is excluded on permanent basis parents should receive a formal exclusion notice informing them of this, the reason for the exclusion and their right to appeal.
The governing body will be notified of a permanent or fixed term exclusion of more than 15 days and should meet within 6 to 15 days of receiving this notice. Parents and the excluded pupil can attend this meeting and can also make written and oral submissions. Written statements should be circulated at least five days in advance of the meeting.
A decision should be communicated in writing within one school day of the meeting of the Governing Body. If you are not happy with the decision a further appeal right should be offered to an independent appeal panel (IAP).
The appeal to the IAP must be lodged 15 school days after the day on which notice in writing was given. If the notice is sent by first-class post it is treated as having been given on the second working day after it was posted. The IAP should then convene a meeting within 15 school days after the day on which the appeal was lodged.
Again, written evidence should be circulated five days in advance of the hearing.
Specific rules exist around the constitution of the panel. In considering an appeal, the panel should decide, on the balance of probabilities, whether the pupil did what he or she is alleged to have done.
You cannot appeal against the IAP's decision just because you are not happy with it. But if they have erred in law it may be possible to make a legal challenge. Such a challenge would have to be brought within three months of the date of the decision that you seek to challenge. If you think this may have happened you should seek legal advice without delay.
The local authority is responsible for providing full-time education for the pupil from the sixth day of their exclusion.
The New System
New arrangements for school exclusion come into force in September 2012. These will apply to any pupil excluded on or after 1 September 2012 from a maintained school, academy school / Free School, or pupil referral unit in England. For more information and a copy of the regulations and statutory guidance see the Department for Education website.
The new system will be broadly the same as the old system, however the independent appeal panel will now be called the independent review panel. The independent review panel will be able to uphold the decision to permanently exclude a pupil; recommend that the governing body reconsider its decision; or direct the governing body to reconsider its decision. A direction to reconsider will be limited to circumstances where a panel decides that the school has acted illegally, irrationally or where there are significant flaws in procedure. The independent review panel will not be able to reinstate a pupil.
First published: Wednesday 6 June 2012
Updated: Tuesday 6 December 2016