This page provides information about when a child can be excluded and the obligations of the school to review an exclusion and the right to appeal an exclusion.
The rules governing exclusions from schools, academies and pupil referral units in England are contained in the s52 Education Act 2002.
If your child has been excluded, the applicable Statutory Guidance is “Exclusions from maintained schools, academies and pupil referral units – A guide for those with legal responsibilities in relation to exclusion” (September 2012).
Note: A 2014 version of the Exclusions Guidance was issued by the Department for Education earlier this year before being withdrawn to address issues with process. The current guidance to be followed is the above Guidance, which was last updated in September 2017.
- Please note that this page is only applicable to those pupils who are attending school in England; it applies to all children attending a school including those below or above compulsory school age, such as those attending nursery classes or 6th forms.
- Section 52(1) Education Act 2002 states that the head teacher of a Local Authority maintained school may exclude a pupil from the school for a fixed period or permanently.
What are the different types of exclusion?
- A fixed term exclusion is for a specific period of time. A pupil may be excluded for one or more fixed periods (up to a maximum of 45 school days in a single academic year). In exceptional cases, usually where further evidence has come to light, a fixed period exclusion may be extended or converted to a permanent exclusion.
Pupils whose lunchtime behaviour is disruptive may be excluded from the school premises for the duration of the lunchtime period. An exclusion that takes place over a lunchtime would be counted as half a school day. The legal requirements relating to exclusion, such as the head teacher’s duty to notify parents, apply in all cases.
- A permanent exclusion involves the child being removed from the school roll. However, the head teacher must not remove a pupil’s name from the school Admissions Register until the outcome of the Independent Review Panel (if this route is followed by parents).
In what circumstances can a child be excluded?
A pupil must only be excluded on disciplinary grounds. The decision to exclude must be:
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:
- 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.
However a head teacher could lawfully exclude a child for:
- repeated failure to follow academic instruction;
- failure to complete a behavioural sanction, e.g. a detention (a decision to change the sanction to exclusion would not automatically be unlawful);
- repeated and persistent breaches of the school’s behavioural policy. Even if the offence that has immediately led to the exclusion would not have normally constituted a serious enough breach on its own, a child can still be excluded if it is part of wider pattern of behaviour.
These duties need to be taken into account when deciding whether to exclude a pupil.
Formally arranged part-time timetables may be necessary as a temporary measure in exceptional circumstances to meet a pupil’s needs, but must not be used as a disciplinary sanction or as a long term solution.
What are the factors a head teacher should consider before deciding to exclude?
The decision on whether to exclude is for a head teacher to take. Pupils should be given an opportunity to present their case before a decision is made.
When considering whether to exclude, head teachers should take account of any contributing factors identified after an incident of poor behaviour has occurred – for example, where it comes to light that a pupil has suffered bereavement, has mental health issues or has been subject to bullying.
The Statutory Guidance is clear that early intervention should be used to address underlying causes of disruptive behaviour. This should include:
- an assessment of whether appropriate support is in place to support any special educational needs or disability that a pupil may have;
- the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour.
Where a pupil has received multiple exclusions or is approaching the legal limit of 45 school days of fixed period exclusions in an academic year, head teachers should consider whether exclusion is providing an effective sanction.
Directing pupils off-site for education
Maintained schools have the power to direct a pupil off-site for education, to improve his or her behaviour (see section 29(3) Education Act 2002 and the Education (Educational Provision for Improving Behaviour) (Amendment) Regulations 2012). If the school decides to use this power, they must:
- ensure that parents are given clear information about the placement – why, when, where, and how it will be reviewed;
Note: Where the pupil has a Statement of Special Educational Needs (SEN) or an Education, Health & Care Plan (EHCP), the Local Authority must also be kept informed.
- keep the placement under review and involve parents in the review;
Note: The regulations specify regular reviews but do not specify how often reviews must take place (that should be decided on a case-by-case basis). Reviews should be frequent enough to provide assurance that the off-site education is achieving its objectives and that the pupil is benefitting from it; and
- have regard to guidance from the Secretary of State on the use of this power.
Note: New Statutory Guidance on this issue can be found in “Alternative Provision – Statutory guidance for Local Authorities” (January 2013) at paragraph 41.
A pupil can also be transferred to another school as part of a ‘managed move’. This is to allow the pupil to have a fresh start in a new school and is an alternative to an exclusion. Managed moves are voluntary – they must only be arranged with the consent of the parties involved, including the parents. The threat of exclusion must never be used to influence parents to remove their child from the school. Managed moves are usually subject to a trial period in the new school. Pupils can be returned to the original school if the placement fails. For more information see our page on Managed Moves.
It is unlawful for a child to be informally excluded from school.
Can a child be informally excluded?
An ‘informal’ exclusion involves a child being sent off the school premises, without this being officially recorded as an exclusion (e.g. where a child is sent home for a ‘cooling off’ period). It is unlawful for a child to be informally excluded from school, even where the child’s parent/s or carer/s agree to the exclusion. If a parent believes that their child has been unlawfully excluded they should, as a first course of action, pursue an internal complaint within the school. For more information on making a complaint please see our page on Complaints to Schools
What are the school’s obligations when a child has special educational needs (SEN) or is ‘looked after’?
There are certain groups of pupils with additional needs who are particularly vulnerable to exclusion. This includes pupils with Statements of Special Educational Needs (SEN) or an Education, Health & Care Plan (EHCP) and ‘looked after’ children.
Head teachers should, as far as possible, avoid permanently excluding any pupil with a statement of SEN or EHCP or a ‘looked after’ child. Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs. In relation to ‘looked after’ children, schools should co-operate proactively with foster carers or children’s home workers and the Local Authority that looks after the child.
Where a school has concerns about behaviour, or risk of exclusion, of a child in one of these vulnerable groups, it should, in partnership with others (including the Local Authority as necessary), consider what additional support or alternative placement may be required. This should involve assessing the suitability of support for a pupil’s SEN. Where a pupil has a statement of SEN or EHCP, schools should consider requesting an early annual review or interim / emergency review.
What is the procedure for excluding a pupil?
When a head teacher or teacher in charge decides to exclude a pupil, the parent(s) or carer(s) should be notified immediately, usually by telephone, followed by a letter without delay. Note: Parents may now be given an exclusion notice electronically, if they have provided written consent for notice to be sent this way. However, ideally notification should be provided in person or by telephone in the first instance to allow for any initial questions or concerns.
The correspondence must state:
- whether the exclusion is permanent;
- where the exclusion is fixed-term, the precise period of the exclusion;
- the reasons for the exclusion;
- the parent’s right to make representations to the governing body, and how the pupil can be involved in this;
- who to contact about making such representations;
- the right on written request to see copies of a child’s school record (Local Authority maintained schools only);
- the arrangements made by the school / pupil referral unit for the pupil to continue their education during the 1st 5 days of the exclusion, including setting and marking of work (with parent(s) having responsibility for ensuring that work sent home is completed by the pupil and returned to school);
- the school days (or school day from) which the pupil will be provided with alternative suitable education.
The DfE Exclusions Guidance (September 2017) states that “the law does not allow for extending a fixed period exclusion or ‘converting’ a fixed period exclusion into a permanent exclusion. In exceptional cases, usually where further evidence has come to light, a further fixed period exclusion may be issued to begin immediately after the first fixed period ends; or a permanent exclusion may be issued to begin immediately after the end of the fixed period.”
The child should not return to school between these periods. This does mean that the school could exclude for a fixed period while ‘investigation is underway’ and decide to permanently exclude or extend the fixed term exclusion if new evidence is provided to them during the investigation period.
If the child is excluded for a further fixed period, or is permanently excluded following the original exclusion, the head teacher must issue a new exclusion notice to parents, and notify them of the new exclusion without delay.
What are the obligations of parents during a period of exclusion?
During the 1st 5 days of a period of exclusion (whether fixed-term or permanent), the parents of an excluded pupil, who is of compulsory school age, must make sure that he or she is not present in a public place during school hours, unless there is a reasonable justification. Failing to ensure this is an offence, and parents may be given a fixed fine of £60. If the school or Local Authority thinks that parents could better influence the behaviour of the pupil, a Parenting Contract may be offered. This is an agreement between the school and parents that they will both support the child in improving their behaviour.
For a fixed period exclusion of more than 5 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 (for example, home tutoring, a pupil referral unit or online studies). This provision must begin no later than the 6th day of the exclusion. This duty is set out in section 100 Education and Inspections Act 2006.
For permanent exclusions, the Local Authority must arrange suitable full-time education for the pupil, again of compulsory school age, to begin no later than the 6th day of the exclusion. This duty is set out in section 19 Education Act 1996.
In addition, where a pupil has a Statement of Special Educational Needs (SEN) or Education, Health & Care Plan (EHCP), the Local Authority must ensure that an appropriate full-time placement is identified in consultation with the parents.
Does the school have to provide education during the first 5 school days of an exclusion?
It is important for schools to help minimise the disruption that exclusion can cause to an excluded pupil’s education. Whilst the statutory duty on governing bodies or Local Authorities is to provide full-time education from the 6th day of an exclusion, there is an obvious benefit in starting this provision as soon as possible.
Where it is not possible, or appropriate, to arrange alternative provision during the 1st 5 school days of an exclusion, schools should take reasonable steps to set and mark work for pupils. Work that is provided should be accessible and achievable by pupils outside of school.
When will a governing body review an exclusion?
The governing body has a duty to consider parents’ representations about an exclusion. The extent of this duty and how it is exercised depend on the length and nature of the 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 term; or
- it would result in a pupil missing a public examination or national curriculum test.
Where an exclusion would result in a pupil missing a public examination or national curriculum test, there is a further requirement for a governing body to consider exclusion before the date of the examination or test. If this is not possible, the chair of governors may consider the exclusion independently and decide whether or not to reinstate the pupil. These are the only circumstances in which the chair can review an exclusion decision alone. In such cases parents still have the right to make representations to the governing body and must be made aware of this right.
If a child has been excluded for a period of more than 5 school days but not more than 15 in a single term, the parents can request that the governing body consider the reinstatement of the child. In these circumstances the governing body must consider the reinstatement within 50 school days of receiving notice of the exclusion. This may not affect the actual exclusion, as the child is likely to have completed their exclusion prior to the governing body considering reinstatement. However, if the governing body did decide to overturn the exclusion and direct reinstatement, a record to this effect could be added to the child’s school records.
In the case of a fixed period exclusion which does not bring the pupil’s total number of days of exclusion to more than 5 in a term, the governing body must consider any representations made by parents. However, it cannot direct reinstatement and is not required to arrange a meeting with parents.
What will happen at a Governing Body meeting?
The following parties must be invited to a meeting of the governing body and allowed to make representations:
- the head teacher; and
- a representative of the Local Authority (in the case of a maintained school or pupil referral unit)
The Governing Body must:
- ask for any written evidence in advance of the meeting (including witness statements and other relevant information held by the school, such as those relating to a pupil’s special educational needs);
- circulate any written evidence and information, including a list of those who will be present, to all parties at least 5 school days in advance of the meeting;
- allow parents and pupils to be accompanied by a friend or representative;
- identify the steps they will take to enable and encourage the excluded pupil to attend the meeting and speak on their own behalf (taking into account the pupil’s age and understanding), or participate by other means if attending the meeting is not possible.
When considering the exclusion, the governing body must consider:
- the interests and circumstances of the excluded pupil;
- the circumstances in which the pupil was excluded; and
- the interests of other pupils and people working at the school.
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.
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 light of their consideration, the Governing Body can either:
- 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.
The governing body must notify parents, the head teacher and the Local Authority of its decision, and the reasons for its decision, in writing and without delay. The governing body should set out the reasons for its decision in sufficient detail to enable all parties to understand why the decision was made.
In the case of a permanent exclusion, the governing body’s notification must also include the following information:
- the fact that it is permanent;
- notice of the parents’ right to ask for the decision to be reviewed by an Independent Review Panel, including:
- the date by which an application for a review must be made;
- 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 parents have a right to require the Local Authority / Academy Trust to appoint an special educational needs (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; and
- 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, in addition to the right to apply for an Independent Review Panel, if parents believe that the exclusion has occurred as a result of discrimination, they may make a claim under the Equality Act 2010 to the (Special Educational Needs and Disability), First-Tier Tribunal in the case of disability discrimination, or the County Court in the case of other forms of discrimination;
- that a claim of discrimination made under these routes should be lodged within 6 months of the date on which the discrimination is alleged to have taken place, e.g. the day on which the pupil was excluded.
What will happen at an Independent Review Panel?
If the governing body uphold a permanent exclusion, parents have the right to request that their decision is reviewed by an Independent Review Panel (IRP).
Parents must lodge their application for a review:
- 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.
These are strict deadlines and any application made outside of the legal time frame must be rejected by the Local Authority / Academy Trust.
Parents may request an Independent Review Panel even if they did not make a case to, or attend, the meeting at which the governing body considered the exclusion.
Parents must submit written representations and, if applicable, supporting evidence, when lodging their application. New evidence can be submitted to the Independent Review Panel. However, when deciding whether to quash the decision, the panel should only take account of evidence available to the governing body at the time of making its decision not to reinstate. The Panel is able to take account of evidence that they consider would, or should have been available to the governing body, and that the governing body ought to have considered if they had been acting reasonably.
The Local Authority / Academy Trust must constitute the Panel with either 3 or 5 members:
- a lay member to chair the panel;
- 1 (or 2) school governor(s) who have served as a governor for at least 12 consecutive months in the last 5 years, provided they have not been teachers or head teachers during this time; and
- 1 (or 2) head teacher(s) or individual(s) who has/have been head teacher(s) within the last 5 years.
A clerk will also be present to provide advice to the Panel and parties to the review on procedure, legislation and Statutory Guidance on exclusions. The clerk does not take part in the decision-making process.
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 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.
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 head teacher and / or governing body act outside the scope of their legal powers in taking the decision to exclude?
- 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 process of exclusion and the governing body’s consideration so unfair or flawed that justice was clearly not done?
If any of these criteria are met, the Panel can quash the decision of the governing body and direct that they consider the exclusion again.
Where the criteria for quashing a decision have not been met, the Panel should consider whether it would be appropriate to recommend that a governing body reconsiders their decision not to reinstate the pupil. This should be used where evidence or procedural flaws have been identified that do not meet the criteria for quashing the decision but which the Panel believe justify a reconsideration of the governing body’s decision.
In all other cases the panel should uphold the exclusion.
There is no further right of appeal against the decision of an Independent Review Panel. However, if you feel that the Review Panel process was unfairly run, you may be able to take this further by complaining about maladministration by the IRP. A successful complaint may result in a recommendation that a new IRP should be arranged, but the decision to uphold the exclusion cannot be overturned. The body this complaint should be made to will depend on the type of school involved:
For community, voluntary controlled, voluntary aided and foundation schools
A complaint should be made to the Local Government Ombudsman (LGO). The LGO have an advice line number which you can call for further advice: 0300 061 0614.
A complaint should be made to the Secretary of State who will pass the complaint to the Education Funding Agency (EFA). They can be contacted on 0370 000 2288.
Can I request a special educational needs (SEN) expert attend the Independent Review Panel (IRP)?
Parents have a right to request the attendance of a SEN expert at the IRP, regardless of whether or not the school recognises that their child has SEN.
The SEN expert should be a professional with first-hand experience of the assessment and support of SEN, as well as an understanding of the legal requirements on schools in relation to SEN and disability.
SEN experts must be impartial. The SEN expert can be employed by another Local Authority or Academy Trust but they should not have had any previous involvement in the assessment or support of SEN for the excluded pupil, or siblings of the excluded pupil. The purpose of this is to avoid a conflict of interest.
The appointment of an SEN expert is for the Local Authority / Academy Trust to make, but it should take reasonable steps to ensure that parents have confidence in the impartiality and capability of the SEN expert. Where possible, this may include offering parents a choice of SEN expert.
The SEN expert’s role is similar to an expert witness. They should provide impartial advice to the Panel on how SEN might be relevant to the exclusion. The SEN expert should base their advice on the evidence provided to the panel. The SEN expert’s role does not include making an assessment of the pupil’s SEN.
The focus of the SEN expert’s advice should be on whether the school’s policies which relate to SEN, or the application of these policies in relation to the excluded pupil, were legal, reasonable and procedurally fair. If the SEN expert believes that this was not the case, they should advise the Panel on the possible contribution that this could have made to the circumstances of the pupil’s exclusion.
Where the school does not recognise that a pupil has SEN, the SEN expert should advise the Panel on whether they believe the school acted in a legal, reasonable and procedurally fair way with respect to the identification of any SEN that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion.
What happens when the Independent Review Panel (IRP) recommends the governing body reconsiders the exclusion?
Where the IRP directs or recommends that the governing body reconsiders its decision, the governing body must reconvene within 10 school days of being given notice of the IRP’s decision.
If, following a direction to reconsider, the governing body does not offer to reinstate the pupil within 10 school days of being notified of the Panel’s decision, a negative adjustment may be made to the school’s budget of £4,000.
In the case of an academy, the school would be required to make an equivalent payment directly to the Local Authority in which the school is located. This payment will be in addition to any funding that would normally follow an excluded pupil.
In the case of either a recommended or directed reconsideration, the governing body must notify the following people of their reconsidered decision, and the reasons for it, in writing and without delay:
- the parents;
- the head teacher;
- the Local Authority and, where relevant, the ‘home Authority’.
If the governing body upholds the exclusion again, there is no further right to refer the matter to the IRP. However, it might be possible to challenge the decision on the grounds listed below, if the governing body:
- made an error in law;
- acted unreasonably;
- was in breach of natural justice.
The application for judicial review should be made promptly, but at least within 3 months of the date of the decision. You would need legal representation should you decide to pursue this course of action.
When can I bring a judicial review claim against the decision of the Independent Review Panel (IRP)?
As noted above, there is no appeal from the decision of an IRP. However, the IRP’s decision may also be subject to judicial review (on the same grounds as above); if successful, the judge could quash the original decision and order that a fresh hearing is arranged. The same time limit of 3 months applies. You would need legal representation should you decide to pursue this course of action.
Examples of potential maladministration that could lead to a complaint include the following:
- The Panel was not properly constituted, e.g. a member of the panel was not truly independent and had links to the school.
- The Panel relied on information provided by the school that has subsequently been shown to be false.
- A parent was not allowed to properly participate in the proceedings.
- A parent did not receive proper notice of the Panel hearing.
Parents have a right to request the attendance of a SEN expert at the Independent Review Panel.
What can I do if the exclusion involved disability discrimination?
If parents believe that the exclusion has occurred as a result of discrimination then they may make a claim under the Equality Act 2010 to the First-tier Tribunal (Special Educational Needs and Disability), in the case of disability discrimination.
In order to fall under the protection of the Equality Act 2010, a pupil needs to be classed a ‘disabled’ for the purposes of the Act. A person is disabled if they have a physical/mental impairment which is long term (has lasted or will last for more than 12 months) and has a substantial effect on their ability to carry out normal day to day activities. The school is under a duty not to discriminate against a person who is classed as disabled for the purposes of the act.
The Equality Act 2010 requires that educational establishments must take reasonable steps to ensure that disabled pupils are not substantially disadvantaged compared with pupils who are not disabled. Educational establishments have a duty to avoid the substantial disadvantage caused by a provision criterion or practice. The duty applies to the provision of education and access to any benefit, service or facility.
When the duty arises, the issue to be considered is whether the adjustment is reasonable. When deciding whether the adjustment is reasonable, a number of factors will be taken into account including the financial resources available, the cost of taking a particular step and the extent to which it is practicable to take a particular step. Discrimination will only occur if the failure to make reasonable adjustments has put the pupil at a substantial disadvantage compared to their non-disabled peers.
In addition, schools have a duty to ensure that a disabled pupil is not treated unfavourably because of something connected with their disability. This is called ‘discrimination arising from disability’. This will occur when the school treats a disabled pupil unfavourably because of something connected with the disabled pupil’s disability, and the school cannot justify the treatment by showing that it is a ‘proportionate means of meeting a legitimate aim’.
Claims for disability discrimination would be lodged with the First-Tier Tribunal (Special Educational Needs & Disabilities). There is strict time limit of 6 months from the date of the alleged discrimination for lodging a claim. A successful claim may result in a declaration that the school has discriminated against the pupil, an apology for this discrimination and a change in school policy.
Parents can make a claim to the Tribunal for any type of exclusion, fixed term or permanent. For permanent exclusions, this right is in addition to the right to request a review by an Independent Review Panel.
For more information please see our page on Disability Discrimination.
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