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Social Mobility and reducing exclusions

On 27 February 2017, the Social Mobility Commission published important research into low-income pupil’s attainment levels and barriers to their progress. It made a number of recommendations that all secondary school head teachers and school staff should understand.

The research identifies that the gap between poor pupils’ attainment at the end of primary school and the end of secondary school has widened. Since 2012, low-income families have been making less progress year on year, compared to their more affluent peers.

Outcomes for children from low-income backgrounds are also affected by the fact that they are more at risk of behavioural issues and exclusion from school. The report highlights that pupils eligible for free school meals are particularly vulnerable to exclusion with an exclusion rate four times higher than their better off peers.

The report makes a number of recommendations for school leaders in relation to reducing exclusions including:

  • A requirement that multi-academy trusts must help secondary schools reduce exclusion by offering a variety of specialist services that meet the needs of pupils with behavioural or conduct problems, and to ensure different school types (such as Pupil Referral Units, Alternative Provision, Special and Mainstream schools) can support each other and work collaboratively;
  • A requirement that secondary school leaders should reduce exclusion, particularly of low income pupils.

This guide helps head teachers understand the complicated legal framework around exclusions.

How can a pupil be lawfully excluded from school?

There are two types of lawful exclusions: fixed term and permanent. Only a head teacher of a school can exclude a pupil and their exclusion must be linked to their behaviour inside or outside of school. The school must have a behaviour policy and this must be available to parents.

Before a head teacher excludes a pupil s/he must be satisfied that the pupil has breached the school’s behaviour policy. This is judged on the civil standard of proof (it is more likely than not), NOT the higher standard of proof required n criminal cases.

  1. Fixed term exclusions

    A fixed-term exclusion must be for a specified period of time. After that the pupil will return to school, unless the head teacher decides to permanently exclude the pupil. Schools may arrange ‘reintegration meetings’ on the first day back. If a pupil is given one or more fixed term exclusions the total number of excluded days must not exceed more than 45 days in any one academic year. Where the limit of fixed term exclusions is reaching the 45 day limit head teachers should consider whether exclusion is providing an effective sanction.
  2. Permanent exclusions

    A decision to permanently exclude a pupil 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.

This is a two-stage test so the head teacher must be satisfied that both elements of the test are met before the exclusion decision is made and reasons for the decision including evidence that was taken into account should be recorded. Where practical, pupils should be given an opportunity to present their case before the decision is made. Head teachers should also take into consideration any contributory factors that may have affected the pupil’s behaviour, such as mental health issues.

A fixed-term exclusion can be converted into a permanent exclusion. Where this happens parents must be provided with the reasons for the change. It is expected that this will occur where the head teacher has conducted further investigations during the fixed-term exclusion. If this has happened then the head teacher should have included the excluded pupil’s views as part of the investigation.

What records are required?

Any exclusion must be confirmed in writing and recorded.

What constitutes an unlawful exclusion?

It is unlawful to ask a pupil to be taken home to ‘cool off’ or because they are struggling with the requirements of the school day. If a parent is asked to take a child home they can refuse.

Requests for parents to take a child home will most usually occur where pupils have special educational needs. Where this appears necessary, rather than excluding, schools should consider whether the child requires additional support in school.

Children with special educational needs (SEN) and disability

Pupils with SEN are nine times more likely to be excluded than pupils without SEN. They are also more vulnerable to the impact of an exclusion. Schools must not discriminate against a disabled pupil in any conduct, including exclusions decisions.

In order to reduce or prevent the chance of a pupil with SEN being excluded, schools should consider whether an assessment of the support that the pupil requires is required. If a pupil is displaying persistently disruptive behaviour a multi-agency assessment should be considered. If a pupil with SEN or disability is excluded and the school has not taken steps to address this at an earlier stage, parents may raise this during an appeal and the school will need to explain why it has not taken preventative steps.

If a pupil has a statement of special educational needs or an Education, Health and Care Plan (EHCP) schools should consider what additional support a pupil may require and whether the statement or EHCP should be reviewed an in interim / emergency basis.

Offsite education

Maintained schools can direct that a pupil be educated off-site to improve their behaviour. A school does not require parental consent for this but must provide clear information about the placement and keep it under regular review with parents.

Managed moves

As an alternative to exclusion, a pupil can be transferred to another school as part of a ‘managed move’. Everyone involved in the process must agree to this, including the parent and receiving school. Head teachers must be careful how they suggest this as it parents should not feel that they are under pressure to accept this option as an alternative to exclusion.

What are the legal requirements about educating children who have been excluded?

Where a pupil of compulsory school age is permanently excluded or excluded for a fixed term of more than five school days the governing body must arrange suitable full-time education to begin no later than the sixth day of the exclusion. If the pupil attends a school in a different local authority to the one they live in, it is the ‘home’ local authority’s duty to arrange education.

When alternative education is provided the head teacher must confirm with parents the start date, times of sessions and location.

If a pupil of compulsory school age is excluded parents must also be notified that for the first five days of the exclusion, or the start of alternative provision if this is earlier than the fifth day, that their child must not be present in a public place, during school hours, without reasonable justification. Parents are at risk of a fixed penalty notice or prosecution if they fail to comply with this.


Governing body

When a head teacher decides to exclude a pupil they must, without delay, notify parents of the decision and set out the period of exclusion (number of days unless permanent) and the reasons for this. Parents must also be informed of their right to make representations to the governing body.

The head teacher must also notify the governing body and local authority of any permanent exclusion, fixed-term exclusion of more than five school days and a fixed-term exclusion which results in the pupil missing a public examination or national curriculum test.

The governing body is required to consider parents’ representations about exclusions and the timeframes it should adhere to depend on the nature of the exclusion as set out below.

  1. Permanent, fixed term (in excess of 15 in one term) or where pupil misses an exam or national curriculum test.
    The governing body must consider reinstatement within 15 school days of receiving notice of the exclusion. If it is reasonably practical, the governing body should review the exclusion before the date of any public examination or test. It should also consider allowing the pupil on site to complete the examination or test but there is not an automatic entitlement to this.  
  2. Fixed-term exclusion of more than 5 school days, but not more than 15 school days in a term.
    The governing body must consider reinstatement within 50 school days of notice of the exclusion.
  3. Fixed-term exclusion of less than 6 days in a term
    The governing body must consider the representation but cannot direct reinstatement and it does not have to meet with parents.

What is the role of the governing body?

After considering representations from parents, the head teacher and representative of the local authority (if applicable) the governing body must decide whether to uphold the exclusion or direct the pupil’s reinstatement either immediately or on a specific date. If the governing body would direct reinstatement, but this is not practical, it must still decide whether the head teacher’s decision to exclude was justified. The governing body will need to establish the facts applying the same test as the head teacher – on the balances of probabilities. The governing body must provide written notification of its decision and the reasons underlying it.

Independent review panel

If the governing body upholds a permanent exclusion it must provide a right for parents to apply to have the decision reviewed by an Independent Review Panel (IRP). This is not a reconsideration of the original exclusion decision, but a review of the governing body’s decision not to reinstate a permanently excluded pupil. An application to the governing body must be made within 15 school days of notice being given. Parents can request the IRP’s review even if they have not attended the governing body meeting.

The governing body (or Academy Trust) must arrange for an IRP hearing. There must be either 3 or 5 members on a panel. The panel will be made up of a lay member who is a chair, a school governor and a head teacher. To be independent they must not have any relationship with the school, local authority, pupil or be connected to the incident which led to the exclusion. The panel may be assisted by a clerk to advise on procedure, legislation and statutory guidance. The clerk must not be part of the decision-making process.

If requested by parents, the governing body (or Academy Trust) must appoint a SEN expert. It does not matter whether the school considers that the pupil has SEN, if requested by the parents the expert must be appointed. The expert must be independent and have first-hand experience of assessing and supporting pupils with SEN. The expert must also understand the legal requirements on schools regarding SEN and disability. Examples of the types of professionals who could be an expert are SENCO, specialist teacher, or educational psychologist. The expert’s role in the IRP is similar to the role of an expert witness. They must provide impartial advice to the panel.

The IRP can hear new evidence during the hearing, but the school cannot provide new reasons for the exclusion. The IRP should seek the SEN expert’s view on how a pupil’s SEN may be relevant to the exclusion. The IRP can consider issues of discrimination when reaching its decision.

What options are open to the IRP?

The IRP can only decide on a majority basis:

  • To quash the exclusion and direct the governing body to consider its decision again.
  • To recommend the governing body reconsider its decision or uphold the exclusion.

It cannot reinstate the pupil.

It must provide written notification of its decision, the reasons for it, if there is any financial readjustment and details of any information required on the pupil’s educational record.

Under what circumstances can an exclusion be quashed?

The panel can only quash the decision and direct the governing body to consider it again if it concludes that the decision is flawed, applying the principles of judicial review. There is a high threshold for this test and requires the IRP to consider whether the decision is unlawful. In some cases there can be procedural flaws but they will not be sufficient to show that the decision is unlawful. In those cases the IRP may recommend that the governing body reconsiders its decision, but cannot force it to do so.

If the IRP directs or recommends the governing body to reconsider its decision, the governing body must meet within 10 school days. If the governing body does not reinstate the pupil following direction from the IRP then an adjustment in the school’s budget of £4,000 can be made. The payment does not need to be made if the governing body offers to reinstate the pupil, but parents decide that their child will not return.

Special Educational Needs and Disability Tribunal

In addition to, or as an alternative to a review by the IRP, parents can also bring a claim for disability discrimination in tribunal about the exclusion. This claim can cover the exclusion decision itself, as well as any other alleged discriminatory conduct within 6 months of the claim being lodged. If the application relates to a permanent exclusion decision, one remedy available to the tribunal is to make an order reinstating the pupil.

If you require any advice or assistance in relation to an exclusion matter please don’t hesitate to contact Polly Sweeney, Partner in our education law team on 0117 926 1535 or email polly.sweeney@irwinmitchell.com


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Key Contact

Polly Sweeney