School Exclusion Appeals

The Education Act 2002 dictates that a head teacher in a private or state school in England or Wales has the power to exclude a pupil if their behaviour is inconsistent with the general standard of conduct that is expected of students.

School exclusion should be considered a last resort, and according to guidance issued by the Department for Education and the Welsh Assembly Government, alternatives must be considered before issuing such a penalty. There are also steps that must be followed when excluding a pupil. If these steps are not followed correctly, then as a parent, it is likely a successful appeal can be made on the basis of breach of procedure.

How do I Appeal Against a School Exclusion?

The school exclusion appeals procedure tends to vary amongst different Local Authorities for state schools, and it will be distinctly different from making challenges to school exclusion at a private or independent school.

You should receive a school exclusion letter which will set out the steps for you to follow in challenging the decision as well as the reasons for the exclusion. If a pupil has been temporarily excluded for over five school days, or their exclusion will lead to them missing a national curriculum test or public examination, then you will be able to challenge a fixed period school exclusion. If the exclusion is less than five days then you can approach the school governors and request that they consider the decision.

Regardless of the type of school, you have the right to challenge a permanent school exclusion decision via the Governing Body in the first instance. If this does not achieve the desired result, then you can take the matter to an Independent Appeals Panel; an independent body which will conduct a review of the issues at a formal hearing. In particular this will include the decision to make the school exclusion and will look at whether alternatives were considered and whether the correct procedures were followed.

The Independent Appeals Panel does not have the power to compel the school to rescind its decision and readmit a pupil who has been permanently excluded. Instead it can make recommendations that the school exclusion decision is reconsidered if the challenge brought is successful. The decision made by the Appeal Panel and/or the school after that could well be susceptible to Judicial Review if not legally compliant.

What is a School Exclusion?

A school exclusion means that a pupil is disallowed from attending school or being on school premises, either for a set period of time, or permanently. It will follow when cases of serious misconduct have been proved. Local Authorities tend to try and prevent exclusions, but Head Teachers will sometimes use them as a method of managing pupil behaviour and ‘setting an example’ so that other pupils are clear that misconduct will not be tolerated.

What are the Different Types of School Exclusion?

There are two types of school exclusion:

Fixed Exclusion: Otherwise known as a suspension, this type of school exclusion involves the pupil being temporarily removed from school for a set period. There is a maximum total period within a school year of 45 days that a pupil can be removed. Suspension cannot be for an undefined period, and it must be for a reasonable period, taking into consideration the fact that exclusions that extend beyond one to two days will increase the difficulty for the pupil to integrate back into school life. If a fixed term exclusion needs to be extended or made permanent then the Head Teacher is required to write to you as a parent making clear the reasons for the change.

Permanent Exclusion: Otherwise known as ‘being expelled’, this means that the pupil is not allowed to return to the school. Permanent school exclusions should only be imposed if the student is deemed to pose a risk to other pupils. Every child has a right to an education, and permanent exclusion must only be imposed as a last resort. Permanent school exclusion should only be the route taken when the Head Teacher is of the opinion that the school is no longer able to manage the pupil’s behaviour or the incident he/she has committed is very severe.

What Happens After a School Exclusion?

When a pupil is suspended, the school must set and mark homework for the first five school days. If the suspension extends beyond five days, or is permanent, then the school is required to arrange full time education from the sixth school day. The school is required to advise parents as to any alternative education arranged by them or the Local Authority, and then it is the parents’ responsibility to ensure the child’s attendance.

If nothing has been arranged after five days then you should contact the school in the case of a fixed term school exclusion, or the Local Authority in the case of a permanent exclusion. If you have cause to complain about the alternative educational arrangements made for your child then you can put your concerns forward to the school or the Local Authority in the same way. If you are not satisfied with the response you get, you can complain to the Department for Education (DfE).

When a pupil is permanently excluded, the Head Teacher’s decision will be reviewed by a panel of governors. You and your child will be given the chance to state your case at the meeting, and you are within your rights to be accompanied by someone to speak on your behalf, or to support you. If the governors are in agreement with the Head Teacher’s decision then you have a legal right to an independent review.

In England, if your child has been excluded from school, it is your responsibility to take control of their whereabouts during school hours for the first five days of exclusion. If your child is found in a public place or on school property then you will be found to have committed a criminal offence and could be prosecuted by the Local Education Authority and fined.

My Child with Special Educational Needs has been Excluded, What can I do?

Research by the Social Exclusion Unit reveals that children with special educational needs are six times more likely than the average child to be excluded from school. And a study by the Communities Empowerment Network claims that in 2012-13, the figure was ten times more likely.

If you believe that your child has been expelled because the school failed to provide adequate support in light of his or her special needs, which led to the exclusion, then you can follow the appeals process outlined above. For example, if your child has behavioural or emotional issues which led to them being considered disruptive in class, and these were not considered or any steps taken to support your child’s special needs, then you could have a good case for an appeal against the decision to exclude them. If your child has been excluded from school for such a reason then you would also have grounds for bringing a Disability Discrimination case against the school in relation to the Equality Act 2010 legislation. These cases are dealt with by the Special Educational Needs and Disability Tribunal (England) and Special Educational Needs Tribunal for Wales. HCB Solicitors have assisted a number of families in such circumstances with great success.

What can I do if I think that my child has been Expelled Through Discrimination?

It is also against the law in England and Wales for schools to discriminate against pupils on the grounds of their race, sex or physical ability when making a decision concerning school exclusion. If you believe that discrimination has played a part in the exclusion of your child then you should make this clear in your appeal/complaint. Your child’s school exclusion letter will outline the steps to take to make the complaint.

How can HCB Solicitors help me if my Child has been Expelled from School?

If your child has been expelled from school, the specialist education law solicitors at HCB will be able to guide you through the appeals process. We will ensure that all the correct procedures have been followed and that the appropriate school exclusion criteria have been applied.

In many cases we find that procedures have not been correctly followed, and that the Governing Bodies tasked with deciding whether the Head Teacher’s decision should be upheld rarely comprehend the official guidance set out by the Department for Education or Welsh Assembly Government. In some cases we find that children were not allowed to give their version of events, or that witness statements were not considered or reviewed.

Our lawyers have extensive experience and expertise in investigating the circumstances surrounding a school exclusion, and will push hard for justice where your child has been wrongfully excluded, whether on the grounds of inconsistent evidence, procedure or discrimination.

For personalised, confidential advice on your child’s school exclusion, get in touch with our experts today.