Since 1st September, all maintained schools and academies have to comply with revised statutory guidance on excluding children. The previous version had been in place since 2012, despite an abortive attempt to change it in 2015 to lower the threshold for permanent exclusion. The new 2017 guidance does not bring in any significant changes, but has been updated to reflect changes in terminology in the last 5 years and to clarify some issues and responsibilities.
Pupils can only be excluded by the head teacher. This includes someone exercising the powers of a head teacher if the full time head teacher is absent. The process for excluding a child and the information to be given to parents and governors are unchanged.
The new guidance clarifies that a 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 5 days. It also updates references to ‘Statements’ to the new terminology of Education, Health and Care Plans (EHCPs) introduced by the Children and Families Act 2014.
It remains the case that a child can only be permanently excluded 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.
Permanent exclusions must be considered by the governing body’s Discipline Committee (or equivalent). Parents have a right to attend this meeting and challenge the permanent exclusion, and the guidance sets out the process and considerations to be applied at this meeting (this is unchanged). The governors’ decision must be sent in writing to the parents, including specified information about the parents’ further rights and sources of advice.
If parents are unhappy with the decision taken by the governing body, they can ask for an Independent Review Panel to consider the decision. This request must be made within 15 schools days of the governors written decision letter – but a decision letter posted first class is deemed received on the second working day after posting. The request must be in writing and must include reasons, although an email stating “I wish to appeal because the permanent exclusion was unfair/too harsh” would be enough to meet the legal requirement. The parents can request the involvement of an SEN expert at the panel, but must do so in their original written request for review – it is too late to ask afterwards.
The review panel must be entirely independent, must be properly constituted and must convene within 15 school days of the written request. The guidance sets out the process for the review and clarifies the roles of those attending. The review panel cannot reinstate the pupil but can uphold or quash the governors’ decision or, where new evidence has come to light, can ask the governors to reconsider it without forcing them to do so. If the panel quashed to the decision, the governor committee must meet again to re-take the decision. If they decide again to uphold the permanent exclusion, the school must pay a £4000 ‘financial readjustment’ to the local authority.
The guidance introduces two new appendices, setting out issues for head teachers to consider at each stage of the process from exclusion through to review panel, and giving guidance to parents and carers.
Schools and academies often struggle with the process after a permanent exclusion has taken place, particularly where the school has relatively little experience of permanent exclusions. Issues can arise around the information provided to parents about their rights; a lack of rigour or perceptions of unfairness in the governor discipline committee meeting; failure to provide proper reasons for the governors’ decision or to include the legally-required information in the decision letter; failure to provide the review panel with the appropriate information to support the school’s case.
It can also be very difficult for academy trusts to arrange an independent review in the time available – particularly in finding governors, headteachers and a clerk who are unconnected with the school, available at short notice and have received the statutory training on exclusions law within the last two years.
If you would like advice or support on an Exclusions matter, or need help setting up or training an independent review panel, please contact us on 0800 0241 976.