How-to Guide: School exclusion

Complaining about discrimination in an exclusion or suspension

The Equality Act 2010 protects individuals from discrimination in education on certain protected characteristics. It is unlawful for any education provider, including a private or independent provider, to discriminate between pupils on grounds of disability, race, gender reassignment, pregnancy and maternity, religion or belief, or sex. If you feel that there is an element of discrimination behind the decision to exclude further advice should be sought in the first instance from the Equality Advisory and Support Service (0808 800 0082). This service will be able to inform you whether or not there is a potential claim against the establishment for Discrimination.

The deadline for bringing a discrimination claim either through the First Tier Tribunal (Special Educational Needs and Disability) or through the County Court is within six months of the alleged discrimination.

Claims of discrimination can be lodged before, during or after taking any action to challenge an exclusion so as long as it remains within the six month time limit. A claim of discrimination should not be seen as an alternative to challenging an exclusion decision but rather something that can be done alongside as a separate claim. For more information about disability discrimination please see our page and How To Guide.

What are the duties of the school when excluding or suspending a child?

If your child has been excluded the procedures which a school must follow when taking a decision to exclude a child can be found in the Department for Education (DfE) guidance, ‘Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’.

Please refer to our School Exclusions page for detailed information relating to what considerations and steps a headteacher should take prior to making a decision to exclude.

Before taking a decision to exclude the headteacher should give consideration to alternatives to exclusion, such as internal exclusions, extra support for the child, a behaviour support plan or simply looking at whether or not there is currently sufficient support in place for a child’s special educational needs or disability. A headteacher can also consider the use of a multi-agency meeting to identify and support any problems. Headteachers should also consider the following:

• an off-site direction (temporary measure that maintained schools and academies for similar purposes can use) or
• managed moves (permanent measure) as preventative measures to exclusion.

Duty to inform parents about an exclusion or suspension

Whenever a headteacher suspends or permanently excludes a pupil they must, without delay, notify parents of the period of the suspension or permanent exclusion and the reason(s) for it.

• They must also, without delay, after their decision, provide parents with the following information in writing:
• the reason(s) for the suspension or permanent exclusion;
• the period of a suspension or, for a permanent exclusion, the fact that it is permanent;
• parents’ right to make representations about the suspension or permanent exclusion to the governing board and how the pupil may be involved in this;
• how any representations should be made; and
• where there is a legal requirement for the governing board to consider the suspension or permanent exclusion, that parents or a pupil if they are 18 years old have a right to attend a meeting, to be represented at that meeting (at their own expense) and to bring a friend.

Although this must not delay notification, notification should be in person or by telephone in the first instance as this would allow parents to ask any initial questions or raise concerns directly with the headteacher.

Written notification of the information above can be provided by delivering it directly to the parents, leaving it at their usual or last known home address, or posting it to that address. Notices can be given electronically if the parents have given written agreement for this kind of notice to be sent in this way.

If alternative provision is being arranged, then the following information must be included with this notice where it can reasonably be found out within the timescale:

• the start date for any provision of full-time education that has been arranged for the child during the suspension or permanent exclusion;
• the start and finish times of any such provision, including the times for morning and afternoon sessions where relevant;
• the address at which the provision will take place; and
• any information required by the pupil to identify the person they should report to on the first day.

Where this information on alternative provision is not reasonably ascertainable by the end of the afternoon session on the first day of the suspension or permanent exclusion, it may be provided in a subsequent notice, but it must be provided without delay and no later than 48 hours before the provision is due to start. The only exception to this is where alternative provision is to be provided before the sixth day of a suspension or permanent exclusion, in which case the information can be provided with less than 48 hours’ notice with parents’ consent.

Converting and extended an exclusion or suspension

The law does not allow for extending a suspension or ‘converting’ a suspension into a permanent exclusion. In exceptional cases, usually where further evidence has come to light, a further suspension may be issued to begin immediately after the first period ends; or a permanent exclusion may be issued to begin immediately after the end of the suspension.

Education whilst the child is excluded or suspended

For a suspension of more than five school days, the governing board must arrange suitable full-time education for any pupil of compulsory school age. This provision is commonly called alternative provision and must begin no later than the sixth school day of the suspension. Where a child receives consecutive suspensions, these are regarded as a cumulative period of suspension for the purposes of this duty. This means that if a child has more than five consecutive school days of suspension, then education must be arranged for the sixth school day of suspension, regardless of whether this is because of one decision to suspend the pupil for the full period or multiple decisions to suspend the pupil for several periods in a row.

For permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. 

It is important for schools to help minimise the disruption that suspension or permanent exclusion can cause to a pupil’s education. Whilst the statutory duty on governing boards or local authorities is to arrange full-time education from the sixth day of a suspension or permanent exclusion, there is an obvious benefit to the pupil in starting this provision as soon as possible. Where it is not possible, or not appropriate, to arrange alternative provision during the first five school days of a suspension or permanent exclusion, the school should take reasonable steps to set and mark work for the pupil.

 

Which body is responsible for reviewing an exclusion or suspension made by the headteacher?

Type of school	Who has duty to review decisions of the headteacher?	Who has duty to arrange an IRP hearing?
Maintained Schools	The Governing Body	The Local Authority
Academy Schools	The Governing Body or Academy Trust	The Academy Trust
Free School	The Academy Trust	The Academy Trust
Alternative Provision Academies	The Governing Body or Academy Trust	The Academy Trust
Pupil Referral Units	The Local Authority	The Local Authority

Duty of the relevant body – Flowchart

Duty of the reviewing body to review an exclusion or suspension if the pupil will miss an exam or national curriculum test

Where a suspension or permanent exclusion would result in a pupil missing a public examination or national curriculum test, there is a further requirement for a governing board. It must, so far as is reasonably practicable, consider and decide on the suspension or permanent exclusion before the date of the examination or test. If it is not practical for sufficient governors to consider the reinstatement before the examination or test, the chair of governors, in the case of a maintained school, may consider the suspension or permanent exclusion alone and decide whether or not to reinstate the pupil.

There is no automatic right for an excluded pupil to take an examination or test, but the relevant body should consider whether it would be appropriate to exercise discretion to allow the excluded pupil on the school premises for the purpose of taking the examination or test only.

What will happen at the review meeting?

The relevant body must inform the parent of the child of the date that it will consider the exclusion decision and reinstatement of the pupil and invite the parent to attend this meeting. They will also request evidence relating to the incident from the school and circulate this along with a list of persons to be present at least five school days prior to the meeting.

Parents are allowed to be accompanied by a friend or representative at the meeting and should be advised of this. Any costs for legal representation will be met by the parent. Reasonable adjustments if necessary should be made and the excluded pupil should be encouraged to attend and put across his or her views if felt of an age or competent to do so.

How do I prepare for the review meeting?

Prior to the relevant body meeting, the first steps that a parent should take are to request from the school in writing:

• The behaviour and discipline policy of the school 
• The child’s educational records, specifically including information such as evidence and written reports relating to the alleged incident 
• Records referring to the thorough investigation of the incident 
• If the child has special educational needs (SEN) then the school SEN policy should also be requested.

There may be grounds on which to challenge a decision to exclude if the decision was unlawful, unreasonable or unfair. To determine whether the decision falls into one of these categories the behaviour and discipline policy of the school should be looked through, alongside the child’s educational records which detail the incident which led to exclusion, including the investigation into the alleged incident and reasons for the decision.

For example, if the school policy states that setting off a fire alarm falsely within school would lead to a sanction of a two day exclusion and the child was permanently excluded as a result of this act, and this was a first time offence, the decision may be unlawful as the school’s policy was not followed. If the act had been part of a wider pattern of poor behaviour however the school maybe justified in its decision. 

If a child had been bullied over a period of time which included physical bullying and on one occasion the child fought back and was permanently excluded as a result of this. A decision to permanently exclude that child for snapping and retaliating could be argued to be an unreasonable decision. This would be a stronger argument if the school were aware of the bullying and had not taken any action to prevent this or comply with its own anti-bullying policy. In this context unreasonable would mean that the decision was one that no other reasonable school would have taken in the same circumstances. 

An example of an unfair decision would be where a child was found to be in breach of the school behaviour and discipline policy along with a group of children who were also breaching the policy in the same way but only one child, who did not have a noticeably worse behavioural record than the other children, was permanently excluded and the others received no punishment. 

Once a parent has the relevant policies and the educational records a statement should be drafted to argue against the decision of the head teacher. ‘Any supporting evidence that the parent has should be submitted to the relevant body, along with a statement of the grounds they are seeking to challenge the exclusion on, by the deadline notified by the relevant body.’ 

Any additional evidence required relating to vulnerable children should also be submitted for the relevant body to consider at the same time. This is where the additional evidence has relevance to the incident which led to the exclusion. For example, any special educational needs which result in a certain type of behaviour may be relevant if a child is being excluded for displaying that behaviour. 

When taking a decision on whether or not to exclude a child, the head teacher would have applied the civil standard of proof ‘on the balance of probabilities’ rather than the criminal standard of proof ‘beyond reasonable doubt’. This should be remembered when preparing to argue against a decision taken by a head teacher and any additional evidence that comes to light between the incident and the governing body meeting to support the case of the child should be included.

Once the relevant body has considered the decision of the head teacher and any representations made by all parties it can either decide to:

• Uphold the head teacher’s decision
• Or, direct reinstatement of the pupil into the school 

If the relevant body has upheld the head teachers decision then it should notify the following in writing of the decision and reasons for the decision without delay:

• Parents 
• Head teacher 
• Local Authority/Academy Trust

Further right of Review against a permanent exclusion decision to the Independent Review Panel

Parents should be notified of the right to ask for the decision to be reviewed by an Independent Review Panel, this right is available whether the parents attended the relevant body consideration meeting or not and the notice must include the following:

• The deadline to request an independent review of the decision (the legal requirement is 15 school days following the date of the decision of the governing body)
• The contact details for where to request an independent review and submit any evidence and statements 
• Whether or not the child has recognised special educational needs, parents should be informed that they have a right to request that the Local Authority or Academy Trust appoint a SEN expert to attend the review
• In addition to notifying parents of the right to have a SEN expert, details of the role of the SEN expert should also be provided
• The right for parents to bring someone to represent them at the review or bring along support, for example from a friend 

Independent Review Panel Procedure

The deadline for the independent review to be held is within fifteen school days of receiving the application for the review. An application for a review which has been made later than the fifteen day limit must be rejected and an independent review does not have to be carried out.

New evidence can be submitted to the Independent Review Panel if it was not available at the time of the relevant body consideration of the exclusion decision. The school cannot however, introduce new reasons for the decision to exclude and new reasons provided should be disregarded.

Who will sit on the Independent Review Panel?

The Independent Review Panel will consist of either three or five members consisting of at least one from each of the following categories:

• A lay person to chair the panel who has no experience of working in a school and being paid for this work
• School governors who have twelve months experience in the previous five years ensuring that they have not been a teacher or head teacher in this time
• Head teachers or a person with experience of being a head teacher in the last five years

The panel members and the clerk (if appointed) are required to have had relevant training in the past two years to be able to perform the function of independently reviewing the decision of the head teacher to exclude a child.

There are certain exemptions to acting as a panel member in place to protect the independence and fairness of the independent review. If you feel that a panel member breaches the independence of the review, clarification should be sought to the independence of the member.

The role of the clerk to the panel

A clerk does not need to be appointed and if there is not a clerk then consideration should be given for the chair of the panel having legal experience. The role of the clerk will be to advise the panel and the parties on procedure, legislation and statutory guidance on exclusions so will be required to have up to date knowledge of the law relating to these areas.

A clerk will also need to be independent and not have served as a clerk to the relevant body meeting.

If a clerk is appointed then they also have to perform the following secretarial functions to ensure that parties are aware of the process and procedure for the review. This includes informing the following parties that they can make written and oral representations to the panel, be represented (and if the parent, bring support):

• The pupil 
• Parents
• Head teacher 
• Relevant body 
• Local authority (if a maintained school or PRU) 

The clerk also needs to ensure that the following paperwork is made available to all parties five school days prior to the review:

• Decision of the relevant body
• The parents application for review 
• Any policies or documents that the relevant body was required to have regard to in making a decision.

The clerk also needs to attend the review and prepare minutes for the review.

The role of the SEN expert at an Independent Review panel

If a parent has requested a SEN expert then the cost of appointing such an expert lies with either the Local Authority or the Academy Trust. The SEN expert has to satisfy the requirements of Independence and must act impartially but can be an employee of the Local Authority or Academy Trust. As noted before the request for a SEN expert by a parent is not limited by the school not recognising that the child has any SEN. If the school have recognised that the child has SEN then the SEN expert appointed must not have had any involvement with the child previously. 

The SEN expert should be a professional with knowledge of assessment and support of a child’s SEN and the legal duties of schools in relation to SEN and disability. The role of the SEN expert will be similar to that of an expert witness, the SEN expert should not make an assessment of the child’s SEN but instead explain how any SEN may be relevant to exclusion. The SEN expert will also comment on whether the school’s policies relating to SEN are legal, reasonable and fair. Where the school has not recognised a child’s SEN then the SEN expert should provide advice as to whether the school has acted in a legal, reasonable and fair way to determine whether or not the child has any SEN.

The role of the Independent Review Panel

The role of the panel is to review the decision of the relevant body but not to reinstate the permanently excluded pupil. The panel will continue to apply the civil standard of proof, ‘the balance of probabilities’.

The panel need to request that the SEN expert provide views of how the SEN might be relevant to the child’s exclusion. There is statutory guidance for Independent Review Panel members to take into account when reaching a decision on the exclusion which is found in the DfE guidance. Among others, the panel should apply tests for Illegality, Irrationality and Procedural impropriety.

When considering the Governing Body’s decision, the panel should apply the following tests which need to be satisfied to quash the decision:

• Illegality – did the governing board act outside the scope of their legal powers in deciding that the pupil should not be reinstated?

• Irrationality – did the governing board rely on irrelevant points, fail to take account of all relevant points or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made it.

• Procedural impropriety – was the governing board’s consideration so procedurally unfair or flawed that justice was clearly not done?

Possible decisions that the Independent Review Panel can make – Flowchart

Removing a pupil from the school roll

There are limited legal circumstances in which a child’s name can be removed from the admissions register of the school. If a parent requests an independent review of an exclusion decision then a child’s name cannot be removed from the school roll until that review has been carried out and the head teacher’s original decision upheld. If a child’s name is removed prior to this then the school may be acting unlawfully and advice should be sought on this matter.

Bringing a judicial review claim against the decision of the Independent Review Panel

If the parent or guardian feels that a panel has made a clear mistake of law, has been unreasonable or has breached the rules of natural justice, they may be able to apply for a Judicial Review. The court will look at the lawfulness of the decision and could overturn any decision or direct a new appeal hearing. Any application for judicial review should be made promptly but at most within 3 months of the date of the decision. Parents would be strongly advised to consult with an education law solicitor over any potential application for Judicial Review.