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New exclusions guidance – what’s changed?

The new statutory exclusions guidance for maintained schools, academies and pupil referral units came into force on 1 September 2017, and applies to all exclusions made after that date. Any exclusions made prior to 1 September will be dealt with under the 2012 statutory guidance. It applies to maintained schools and academies, including pupils attending nursery classes or sixth form at those schools, but does not apply to independent schools, sixth form colleges, city technology colleges or 16-19 academies.

Key Changes

One of the central changes is that schools are no longer allowed to extend fixed term exclusions or ‘convert’ fixed term exclusions into permanent exclusion. However, the guidance does state that in “exceptional cases” a further fixed term exclusion or permanent exclusion may be issued to begin immediately after the first period ends.

Exceptional circumstances are not defined, but the guidance states this will usually be where further evidence has come to light. As the extension of a fixed term exclusion or change to a permanent exclusion is often used where there has been a serious incident for which the pupil is initially excluded for a fixed term whilst the matter is fully investigated, in practice this change may not fundamentally alter a school’s approach. Often in such circumstances an investigation may give rise to further evidence upon which a further decision can be made.

However, schools should be mindful of the exceptional circumstances wording as the reason for the justification, which was also present in the previous guidance, to ensure that they can justify the decision as being ‘exceptional’, if seeking to rely on it. This should be considered when dealing with all exclusions, as any frequent use of this approach may reduce the opportunity for a school to justify specific circumstances as ‘exceptional’.

Exclusion should be a last resort

As before, the decision to permanently exclude a pupil should only be taken as a last resort 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 two-part test is the same as in the previous guidance. The guidance repeats a point from the previous guidance which recently gained national attention: that exclusions cannot be for non-disciplinary reasons, such as academic attainment or ability.

SEN pupils

For pupils with special educational needs the wording of the guidance has been updated to include reference to Education, Health and Care Plans. For schools the key guidance remains that annual reviews could be held where a child is at risk of exclusion. The guidance also states that local authorities may need to review the EHC Plan or reassess the child’s needs with a view to identifying a new placement in cases of permanent exclusion, but there is not a duty on them to hold the review. As a new placement would need to be identified and named in Section I of the EHC Plan this is likely to be good practice, but there is not a requirement for either schools or local authorities to convene an annual review. The guidance continues to state that schools should, as far as possible, avoid permanently excluding a pupil with an EHC Plan, which reflects the wording in the previous guidance relating to pupils with statements of special educational needs.

Duty to arrange education following exclusions

Incorporated into the guidance is the Department for Education’s amended regulations from 2015 which clarified that the governing body’s duty to arrange education from the sixth day of a fixed term exclusion is triggered by consecutive fixed term exclusions totalling more than five days. This would apply for one fixed term exclusion of more than five days, or a series of fixed term exclusions the cumulative total being more than five days, which remains possible despite the alteration to the wording of extending fixed term exclusions, as explained above.

Role of the governing body

The guidance clarifies that for governing bodies the decision is whether or not to reinstate the excluded pupil, not whether the head teacher’s decision to exclude was correct. The Independent Review Panel must then decide whether the governing body was right not to reinstate the pupil, not whether the head teacher’s decision to exclude was correct. The IRP’s decision should not be influenced by any statements made by the pupil or parents or whether or not there is an intention to return to the school, so the IRP must decide whether there are sufficient grounds to direct or recommend reconsideration of the governing body decision to uphold the exclusion in all decisions considered.

Where a governing body has been directed or recommended to reconsider reinstatement following the IRP it must look afresh at the question, in light of the IRP’s findings, but is not required to seek further representations from other parties or to invite them to the reconsideration meeting. This does not prevent the governing body from taking into account other matters that it considers relevant, but if does so it should ensure that such information does not make the reconsideration decision unlawful.

The guidance also clarifies that at independent review panels the venue must be accessible to all parties, which will require the local authority or academy trust arranging the IRP to consider its duties under the Equality Act 2010 and any reasonable adjustments required in order to meet this requirement.

Conclusion

Overall there have not been substantive changes to the guidance, but the adjustments made and clarifications of the law mean that schools should take care when following the exclusion process to ensure that they have taken into account the current position.

If schools do not comply when making an exclusion decision, the appeal could be approached on the basis that it has been made unlawfully and it would therefore be more likely that a challenge against it could succeed.

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