School Exclusion Guidance Updates 2022

Our specialist education lawyers receive regular enquiries from parents who wish to challenge the decision of a school to permanently exclude their child. Our solicitors appreciate the concerns that parents have regarding the effect of an exclusion, whether fixed term or permanent, on their child’s education. This blog will discuss the updates to the guidance that schools must follow when deciding whether a suspension or exclusion is necessary, how you can challenge this decision and how our specialist solicitors are able to help you. 

The Department for Education has recently published its updated guidance on Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England. This new guidance replaces the guidance published in 2017 and is stated to reflect the Government’s ambition to create high standards of behaviour in schools to ensure that children and young people are protected from disruption and have a calm, safe and supportive environment in which they can learn and thrive.  Changes to the guidance have also been made to reflect specific changes in the legislation governing the disciplinary school suspension and exclusion process. 

The new guidance, and the strive to protect from disruption all come at a time when zero tolerance Heads are being publicly lauded by the Government.

Under the Education and Inspections Act 2006, headteachers may only exclude as a last resort when all other behaviour management strategies have failed. A pupil can either be suspended, which used to be called a fixed term exclusion, or permanently excluded. A suspension is where a pupil is temporarily removed from school for one or more fixed periods, up to a maximum of 45 schools days in a single academic year. A permanent exclusion is when a pupil is no longer allowed to attend a school. 

The new updates to the guidance allow a headteacher to cancel any exclusion that has not been reviewed by the governing board. The guidance also clarifies that when the decision is made to permanently exclude a pupil then the headteacher must notify the parents without delay. This is also extended to informing a child or young person’s social worker and/or Virtual School Head if the child is a looked-after child. The Local Authority must also be notified without delay if a pupil is permanently excluded, regardless of the length of that exclusion. Any exclusion, no matter its length, must be confirmed to the parents in writing with notice of the reasons for the suspension or exclusion.   

The new guidance clarifies the position of using off- site direction as a short term measure. Off- site direction is a strategy that requires a pupil to attend another education setting, often to improve their behaviour where interventions or targeted support have not been successful. The governing body must ensure that parents are notified in writing and provided with information about the new placement as soon as practicable after the direction has been made and no later than 2 days before the new placement will start. If the pupil has an Education Health and Care Plan, the Local Authority must also be notified in writing. A review meeting can also be requested by either the parents or the local authority and governing boards must comply with this request unless there has been a review meeting within the previous 10 weeks. These meetings will review whether the off-site direction should continue to have effect.   

New guidance on managed moves has also come into effect clarifying exactly what these are and how they should be used. A managed move is used to initiate a process which leads to a pupil transferring to another mainstream schools permanently. This should be voluntary and agreed with all parties involved. Importantly, a managed move should not be imposed on parents as being the alternative to a permanent exclusions. 
Managed moves should only occur when it is in the pupil’s best interests. If a pupil has an Education Health and Care Plan, the relevant statutory duties will apply to the new school and Local Authority. The current school contemplating the managed move should consult with the Local Authority and if all parties are in agreement, including parents, then the Local Authority should follow the statutory procedures for amending the EHC plan. 
If you believe that you are being pressured into a managed move or are unhappy with a managed move you can use the school’s formal complaint procedure with the governing body and the Local Authority. It may also be that such behaviour can be challenged through judicial review and/or via a complaint of disability discrimination further to the Equality Act 2010.

The new guidance also clarifies the role of social workers and Virtual School Heads during governing board and IRP meetings as well as the duty for governing boards to review data to ensure that permanent exclusion is only being used when necessary as a last resort. 

There is also further guidance on the practice of involving pupils in all stages of the suspension or permanent exclusion process. The excluded pupil should be enabled and encouraged to participate in all stages of the process, taking into account their age and ability to understand. 
The Equality Act 2010 requires schools to make reasonable adjustments for disabled pupils. Further, the Children and Families Act 2014 requires that schools use ‘best endeavours’ to ensure that appropriate provision is made for all pupils with SEN to ensure that they are given the support they require to manage their behaviour needs as a result of their SEN. Clearly, where a child has an Education Health and Care Plan, the provision detailed in that plan must be delivered. 

 Where a schools highlights concerns about the behaviour of a pupil with SEN, a disability or an EHC plan, which may result in a suspension or permanent exclusion, they should consider what additional support or alternative provision may be required. This should be in partnership with others, including the Local Authority where appropriate, and should involve assessing the suitability of the provision currently in place for that pupil’s SEN or disability. When the pupil has an EHC plan the school should request an early annual review to address behavioural concerns prior to imposing a suspension on permanent exclusion. Where the child does not have an EHC plan the current support arrangements should be reviewed and if deemed appropriate this may lead to an EHC needs assessment being requested. It is unlawful to exclude a pupil simply because they have SEN or a disability that the school feels they cannot cater for.    

For the academic year 2019/2020, data from the Office for National Statistics showed that again exclusion rates are higher among pupils with SEN. The permanent exclusion rate for those pupils with an EHC plan was 0.10, for pupils with SEN without an EHC plan was 0.20 and pupils without SEN was 0.04. It is clear that rates are significantly higher for those pupils with SEN and only reinforces the worrying trend we highlighted in our June blog ‘How have Special Educational Statistics Changed in England in the Academic Year 2021/2022?’, which looked at the high number of pupils with EHC plans in pupil referral units.

These figures do present as lower than for the academic year 2018/2019, but the coronavirus lockdown will have undoubtedly affected the statistics so it is difficult to compare to previous years.   

If you believe that the reason your child has been excluded is connected to their SEN or disability, there may be scope to make a claim for disability discrimination to the SEN and Disability Tribunal. 

How can I challenge the school’s decision to permanently exclude my child?
A permanent exclusion is a decision made by a Head Teacher to exclude a student who is not able to return to the school unless that decision is overturned.
There are numerous reasons why a student may be excluded including:

• Bullying
• Drug and alcohol related behaviour
• Persistent disruptive behaviour
• Physical assault against a pupil or adult
• Racial abuse
• Sexual misconduct
• Theft
• Verbal abuse or threatening behaviour against a pupil or adult

The head teacher should write to inform the parent or guardian of the reasons why they have decided to exclude the pupil and also inform them what to do if they disagree with the decision made. The process of challenging a decision made by a maintained school or academy will include the following:

1.    Governing Board: review of the head teacher’s decision to permanently exclude the student in question.
2.    Independent Review Panel: a request for an independent review made by the parents following a decision by the governing board to uphold the head teacher’s decision. The role of the IRP is to assess whether a pupil’s exclusion has been lawful, reasonable, and procedurally fair and what further action might need to be taken.
Our education solicitors are frequently instructed to challenge permanent exclusion cases. 
Persistent disruptive behaviour continues to be the most common reason for permanent exclusion, as confirmed by the Office for National Statistics, which often raises the following questions:

• Did the school fairly investigate the case?
• Did the school apply their behavioural policy correctly?
• What steps did the school take to address the alleged behaviour?
• Are there underlying causes for the disruptive behaviour? For example bullying, SEN or disabilities?
• Was permanent exclusion the last resort?

There are a variety of issues that may not have been taken into consideration by the head teacher before setting down the ultimate sanction. Our specialist education team appreciate that each student is different and that they should not be treated as a tick box exercise. 

How we can help you
If your child has been excluded and you wish to challenge the decision made by the school or governing body, our education solicitors can provide independent and impartial advice whilst also providing robust grounds of appeal. Our education solicitors can also provide representations at the board of governors meeting and/or the independent review panel.

If you did wish to challenge the decision to permanent exclude your child, please contact our specialist education legal team on 0333 202 7175 for advice and guidance, or send us an email on education@hcbgroup.com.