Pupil Exclusion: Legal Requirements and Good Practice

28 Aug

I           Introduction

The most daunting and challenging aspect of school governance after that of appointing a headteacher, is dealing with the aftermath of a pupil exclusion by the headteacher.  Governors are exhorted to develop policies where all pupils may thrive.  An implicit requirement is the promotion of inclusion. Youngsters should feel part and parcel of the school community, where they are safe and happy.  Yet, it is open to the headteacher to exclude a pupil that does not fall into line with the school’s behaviour policy.   Theoretically, the concept is anathema to the running of an outstanding school.  In fact, Ofsted inspectors raise quizzical eyebrows whenever they make judgements on schools if pupils are ‘turfed’ out routinely.

Yet, there are some pupils, for a multitude of reasons who make it impossible not only for them to thrive but also their peers.  They are disruptive, aggressive, inattentive and, altogether, unwelcome to the school community.   How often have I heard it said that such-and-such a pupil is like a virus or bacterium to the school-body politic and has no place in education.   Yet, we have a legal (if not moral) responsibility to educate all our children – if the parents of a child so choose to have them educated at school (and not otherwise with home-tutoring).

So how can governors deal with this burning issue without getting themselves burnt? At the outset, the governing body has to establish a pupil behaviour policy.  In an academy or a multi-academy trust (MAT), the trust, per se, will determine who is responsible for constructing such a policy.

A good policy will set out the school’s/academy’s expectations of pupils.  It will describe strategies for promoting good behaviour – especially opportunities for children to learn how to live in amity with one another and adults – and the rewards they may expect.

The policy will describe the measures the school will take to bring them to heel where, despite the best efforts of the staff, pupils misbehave.  It will be a hierarchy of sanctions.  In extremis, pupils could be excluded for fixed-term periods, and after that, permanently.

Statutory guidance from the Department for Education states that permanent exclusion should be used as a last resort, when all other methods for promoting the child’s good behaviour fails. It must be lawful, reasonable and fair. The policy should explicitly state the kinds of behaviour which will result in permanent exclusion, such as peddling drugs – in or outside the school – and bringing a weapon to school.

A school may not discriminate on the basis of protected characteristics such as disability, race and/or gender.  It must give particular attention to vulnerable pupils treating them fairly.    It also states that only the headteacher may exclude, unless, of course, s/he is unwell or the post vacant, in which case, the deputy headteacher or acting headteacher is empowered to exclude. 

II          Headteacher’s Responsibilities

The headteacher may exclude a pupil permanently

(i)         in response to a serious breach or persistent breaches of the school’s behaviour policy and

(ii)        where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

Where the headteacher excludes a pupil, s/he must immediately

(i)         notify the parent/s/carer/s of the period of the exclusion and the reasons for it,

(ii)        state whether the exclusion is fixed-term, in which case the duration, or permanent,

(iii)       apprise the parents/carers of

  • their right to make representations to the governing body and how the pupil can be involved in this,
  • how representations may be made, and
  • their right to attend a meeting of the committee of the governing body, be represented at this meeting (at their own expensive) and to bring a friend.

In the case of a permanent exclusion, the headteacher must explain to the parents/carers that they have responsibility for providing alternative education for their child during the first five school days of the exclusion and that s/he (i.e. the child) should not be present in a public place during school hours without reasonable justification.   If the parents fail in this duty, they could be given a fixed-penalty notice and prosecuted where they fail to pay.

After the first five days, the local authority will provide alternative education.  The headteacher is required to inform the parents/carers of these arrangements including

(i)         the start date for any provision of full-time education arranged during the period of exclusion;

(ii)        the start and finish times of any such provision, including the times for the morning and afternoon sessions, where relevant;

(iii)       the address at which the provision is being made; and

(iv)       any information required by the pupil to identify the person s/he should report to on the first day.

Without delay, the headteacher must notify both, the governing body and the local authority of

(i)         a permanent exclusion, including a fixed term-exclusion being made permanent;

(ii)        an exclusion where the pupil is being excluded for more than five school days (or more than 10 lunchtimes) in a term; and

(iii)       an exclusion which would result in a pupil missing a public examination or national curriculum test.

In the case of all exclusions, the headteacher must notify the local authority and governing body once a term.  The information must include the reasons for the exclusions and the duration for fixed-term exclusions.  It is also good practice for the headteacher to include data on the ethnicity and gender of the pupils, to enable governors to satisfy themselves that no one group is being disproportionately targeted.  Where a pupil, who is permanently excluded, lives outside the local authority in which s/he is being educated, the headteacher must also immediately inform the pupil’s “home authority” of the exclusion.

III        Governing Body’s Responsibilities

(a)        Making arrangements for the representations meeting

The governing body and local authority have a statutory responsibility to provide full-time education from the sixth day of an exclusion.   However, the statutory guidance explains that this may not always be possible, in which case, the school should take “reasonable steps to set and mark work” for the pupil.   The work provided should be accessible and achievable by the pupil outside school.

The governing body must consider parental representations to a fixed-term exclusion (of more than five days) or a permanent one.   It is good practice to delegate this task to a committee of three governors who were no involved in any shape or form with matters that led up to the exclusion.  The committee’s role is to consider the reinstatement of the excluded pupil, if

(i)         the exclusion is for more than 15 school days – including the fixed term exclusion which would bring the pupil’s total number of school days’ (of the pupil’s exclusion) to more than 15 days in the term,

(ii)        a permanent exclusion, or

(iii)       it would result in the pupil missing a public examination or a national curriculum test.

Where it is not practicable for a committee to meet in advance of the public examination or national curriculum test, the chair of governors may consider the exclusion and decide independently on the reinstatement. Parents will still have the right to make representations.

The parties that must be invited to the representations meeting of the committee are

(i)         the parents/carers,

(ii)        the headteacher, and

(iii)       a representative of the local authority, in the case of a maintained school or Pupil Referral Unit (PRU).

The excluded pupil, according to the DfE guidance, should be encouraged to attend the meeting and speak on her/his own behalf, taking account of the pupil’s age and understanding.  Where this is not possible, arrangements could be made to receive the pupil’s views by other means.

In a fixed-term exclusion of fewer than five school days in the term, the governing body must consider any representations by parents but cannot direct reinstatement and is not required to arrange a meeting with the parents.

(b)        Good practice at the representations meeting

When determining the facts at the meeting, the committee must apply the civil standard of proof, i.e. “the balance of probabilities”, where it is more likely than not that something is true, rather than the criminal standard of proof, i.e. “beyond reasonable doubt”.

On that basis, the committee can either

(i)         uphold an exclusion or

(ii)        direct reinstatement of the pupil immediately or by a particular date.

Where reinstatement is not practicable, for instance where the pupil has already returned to school or the parents state that they do not wish their child reinstated, the committee must consider (anyway) whether the headteacher’s decision to exclude was justified on the basis of the evidence.

Prior to making their decision, members of the committee must require all interested parties to withdraw from the meeting.  The clerk is entitled to remain to record the deliberations and outcome.   It is good practice for the chair to ask all interested parties before they withdraw whether they thought that the discussions were “full and fair”.  If not, s/he can invite them to supply more data to achieve that objective.

In coming to a determination, the governors on the committee need to consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair taking account of the headteacher’s legal duties.  The decision should be retained in the pupil’s educational records, along with copies of other relevant papers for future reference.  In a case where the governors consider the parental representations but have no power to direct reinstatement, they should consider whether it would be appropriate to place a note on their findings on the pupil’s educational record.

(c)        After the meeting

Following the meeting, the governors must, without delay, notify the parents, headteacher and local authority of their decision and the reasons for it.   In a case where the pupil lives in a local authority different from the one maintained by the school, the governors must also inform the pupil’s ‘home authority’. The information should include the following matters, where the governors affirm the permanent exclusion of the headteacher.

(i)         The fact that the permanent exclusion is affirmed.

(ii)        Notice of the parents’ right to ask for the decision to reviewed by an independent review panel.

(iii)       The date by which an application for a review must be made (i.e. 15 school days from the date on which notice in writing of the governing body’s decision is given to the parents).

(iv)       The name and address of the person to whom an application for a review (and any written evidence) should be submitted.

(v)        That the application should set out the grounds on which it is being made and that, where relevant, this should include a reference to how the pupil’s special educational needs are considered to be relevant to the exclusion.

(vi)       That the parents have a right to require the local authority/Academy Trust to appoint a special educational needs expert to attend the review meeting.

(vii)      Details of the role of the SEN expert and that there would be no cost to parents for this appointment.

(viii)     That parents/carers must clarify if they wish for an SEN expert to be appointed in any application for a review.

(ix)       That parents/carers may, at their own expense, appoint someone to make written and/or oral representations to the review panel and that they may also bring a friend to the review.

(x)        That if the parents/carers believe that the exclusion occurred as a result of unfair discrimination, 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 or the County Court in the case of other forms of discrimination.

(xi)       That a claim of discrimination should be lodged within six months of the date on which the discrimination is alleged to have taken place, i.e. the day on which the pupil was excluded.

IV        Conclusion

The overall number of permanent exclusions for state-funded secondary and special schools increased, but remained static for primary schools.  Across all schools, the number of permanent exclusions increased from 4,950 in 2013/14 to 5,800 in 2014/15, rising from 0.06% to 0.07%.   On average, the increase was from 26 per day in 2013/14 to 31 in 2014/15. Secondary schools excluded 83% of pupils in 2014/15 – up from 81% in previous year.  The rate of permanent exclusions in special schools increased from 0.07% to 0.09%.   The rest of the permanent exclusions, i.e. 16.1% occurred in primary schools.

The number of fixed-term exclusions also increased from 269,480 (3.50%) in 2013/14 to 302,980 (3.88%) in 2014/15.  It increased in primary and secondary schools but decreased in special schools.

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