Dealing with exclusions

This page provides information about when a child can be excluded and the obligations of the school. 

The relevant DfE guidance governing exclusions can be found here: “Exclusions from maintained schools, academies and pupil referral units – A guide for those with legal responsibilities in relation to exclusion” (September 2017).

Please note that the Department for Education have published statutory guidance on changes to the school exclusion process during the coronavirus outbreak.

The guidance outlines timescales for meetings of governing boards and the Independent Review Panel and remote access. 

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What are the different types of exclusion?

• A fixed term exclusion is for a specific period of time. A pupil may be excluded for one or more fixed periods (up to a maximum of 45 school days in a single academic year). In exceptional cases, usually where further evidence has come to light, a fixed period exclusion may be extended or converted to a permanent exclusion. However, the updated 2017 guidance does make clear that this should be only be done in exceptional circumstances. 
  
• A permanent exclusion involves the child being removed from the school roll. However, the head teacher must not remove a pupil’s name from the school admissions register until the outcome of the Independent Review Panel (if this route is followed by parents). 

In which circumstances can a child be excluded?

A pupil must only be excluded on disciplinary grounds. The decision to exclude must be:

• Lawful
• Rational
• Reasonable
• Fair; and 
• Proportionate

The behaviour of pupils outside of school can be considered as grounds for exclusion. The school’s behaviour policy will set out when a pupil’s behaviour outside of school premises may lead to disciplinary sanctions.

A decision to exclude a pupil permanently 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”.

When reaching the decision to exclude a child, the head teacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’ which means it is more likely than not that a fact is true.

It is unlawful to exclude or to increase the severity of an exclusion for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet. It would also be unlawful to exclude for a reason such as:

• academic attainment / ability
• the action of a pupil’s parents
• the failure of a pupil to meet specific conditions before they are reinstated such as attend a reintegration meeting.

However, a Head Teacher can lawfully exclude a child for:

• Repeated failure to follow academic instruction
• Failure to complete a behavioural sanction, e.g. a detention, a decision to change the sanction to exclusion would not automatically be unlawful
• Repeated and persistent breaches of the schools behavioural policy. Even if the offence that has immediately led to the exclusion would not have normally constituted a serious enough breach on its own a child can still be excluded if it is part of wider pattern of behaviour. These duties need to be taken into account when deciding whether to exclude a pupil
• Formally arranged part-time timetables may be necessary as a temporary measure in exceptional circumstances to meet a pupil’s needs but must not be used as a disciplinary sanction and is not a long term solution. 

What are the factors a head teacher should consider before deciding to exclude?

The decision on whether to exclude is for a head teacher to take. Before deciding whether to exclude a pupil, the Headteacher should:

• Ensure that a thorough investigation has been carried out. 
• Consider all the evidence available to support the allegations, taking account of the school’s behaviour and equal opportunities polices, and, where applicable, the Equality Act 2010. 
• Allow the pupil to give his or her version of events. 
• Check whether the incident may have been provoked, for example by bullying. 
• If necessary, consult others, but not anyone who may later have a role in reviewing the head teacher’s decision, for example a member of the Governing Body. 

The guidance is clear that early intervention should be used to address underlying causes of disruptive behaviour. This should include:

• an assessment of whether appropriate support is in place to support any Special Educational Needs or disability that a pupil may have
• the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour.

Where a pupil has received multiple exclusions or is approaching the legal limit of 45 school days of fixed period exclusion in an academic year, head teachers should consider whether exclusion is providing an effective sanction. 

Maintained schools have the power to direct a pupil off-site for education to improve his or her behaviour (section 29A of the Education Act 2002). If the school decide to use this power, under the Education (Educational Provision for Improving Behaviour) (Amendment) Regulations 2012 they must: 

• Ensure that parents (and the local authority where the pupil has a Statement of Special Educational Needs or an Educational Healthcare Plan—EHCP) are given clear information about the placement: why, when, where, and how it will be reviewed; 
• Keep the placement under review and involve parents in the review. The regulations specify regular reviews but do not specify how often reviews must take place (that should be decided on a case-by-case basis). Reviews should be frequent enough to provide assurance that the off-site education is achieving its objectives and that the pupil is benefitting from it; and 
• Have regard to guidance from the Secretary of State on the use of this power – new statutory guidance on this issue can be found at paragraph 41 of the Alternative Provision – Statutory guidance for local authorities – January 2013.

For more information see our page on Directing a child off-site to improve behaviour.

A pupil can also be transferred to another school as part of a ‘managed move.’ This is to allow the pupil to have a fresh start in a new school and is an alternative to exclusion. Managed moves must only be arranged with the consent of the parties involved, including the parents. The threat of exclusion must never be used to influence parents to remove their child from the school. Managed moves are usually subject to a trial period in the new school. Pupils can be returned to the original school if the placement fails. For more information see our page on Arranging Managed Moves.

Can a child be informally excluded?

An informal exclusion involves a child being sent off the school premises, where this is not officially recorded as exclusion (e.g. where a child is sent home for a ‘cooling off’ period). It is unlawful for a child to be informally excluded from school, even where the child’s parent/s or carer/s agree to the exclusion. 

 What are the school’s obligations when a child has Special Educational Needs (SEN) or is looked after?

There are certain groups of pupils with additional needs who are particularly vulnerable to exclusion. This includes pupils with Statements of Special Educational Needs (SEN) or an Education Health Care Plan (EHCP) and looked after children.

Head teachers should, as far as possible, avoid excluding permanently any pupil with a statement of SEN or EHCP or a Looked after Child. Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs. In relation to looked after children, schools should co-operate proactively with foster carers or children’s home workers and the local authority that looks after the child. Where a school has concerns about the behaviour, or risk of exclusion, of a child with additional needs, a pupil with a statement of SEN, an EHCP or a looked after child it should, in partnership with others (including the local authority as necessary), consider what additional support or alternative placement may be required. This should involve assessing the suitability of support for a pupil’s SEN. Where a pupil has a statement of SEN or EHCP, schools should consider requesting an early annual review or interim / emergency review.

What is the procedure for excluding a pupil?

When a head teacher or teacher in charge decides to exclude a pupil, the parent /s or carer/s should be notified immediately, usually by telephone, followed by a letter without delay. As amended by the 2017 guidance, parents may now be given an exclusion notice electronically, if they have provided written consent for notice to be sent this way. However ideally notification should be provided in person or by telephone in the first instance to allow for any initial questions or concerns. The correspondence must state:

• If the exclusion is permanent
• If the exclusion is fixed-term, the precise period of the exclusion
• The reasons for the exclusion
• The parent’s right to make representations to the governing body, and how the pupil can be involved in this
• Who to contact about making such representations
• The right on written request to see copies of a child’s school record
• The arrangements made by the school / Pupil Referral Unit for the pupil to continue their education during the first five days of the exclusion, including setting and marking of work. It is the parents’ responsibility to ensure that work sent home is completed by the pupil and returned to school
• The school days (or school day from) which the pupil will be provided with alternative suitable education.

The DfE Exclusions Guidance (September 2017) states the following: “the law does not allow for extending a fixed period exclusion or ‘converting’ a fixed period exclusion into a permanent exclusion. In exceptional cases, usually where further evidence has come to light, a further fixed period exclusion may be issued to begin immediately after the first fixed period ends; or a permanent exclusion may be issued to begin immediately after the end of the fixed period.”

If the child is excluded for a further fixed period, or is permanently excluded following the original exclusion, the head teacher must issue a new exclusion notice to parents, and notify them of the new exclusion without delay.

Does the school have to provide education during the first 5 school days of exclusion?

It is important for schools to help minimise the disruption that exclusion can cause to an excluded pupil’s education. Whilst the statutory duty on governing bodies or Local Authorities is to provide full-time education from the sixth day of an exclusion, there is an obvious benefit in starting this provision as soon as possible. 

Where it is not possible, or appropriate, to arrange alternative provision during the first five school days of an exclusion, schools should take reasonable steps to set and mark work for pupils. Work that is provided should be accessible and achievable by pupils outside of school. 

When will a Governing Body review an exclusion?

The governing body has a duty to consider parents’ representations about an exclusion. The extent of this duty and how it is exercised depend on the length and nature of the exclusion.

The governing body must consider the reinstatement of an excluded pupil within 15 school days of receiving notice of the exclusion if:

• The exclusion is permanent;
• It is a fixed period exclusion which would bring the pupil’s total number of school days of exclusion to more than 15 in term; or
• It would result in a pupil missing a public examination or national curriculum test.

If it is not possible to convene a hearing before the exam, the chair of governors may consider the exclusion independently and decide whether or not to reinstate the pupil. These are the only circumstances in which the chair can review an exclusion decision alone. In such cases parents still have the right to make representations to the governing body and must be made aware of this right.

Fixed period exclusion of between 5 – 15 School days

If requested to do so by the parents, the Governing Body must consider reinstatement within 50 school days of receiving notice of the exclusion. 

The pupil is likely to have completed the exclusion prior to the Governing Body considering reinstatement. However, if the Governing Body deem the exclusion to be unlawful, a record to this effect should be added to the child’s school records.

Fixed period exclusion of between 1-5 School days

The Governing Body must consider any representations made by parents. 

However, they are not legally obliged to arrange a meeting with the parents and are unable to direct reinstatement. 

What will happen at a Governing Body meeting?

The following parties must be invited to a meeting of the Governing Body and allowed to make representations:

• parents;
• the head teacher; and
• a representative of the local authority (in the case of a maintained school or Pupil Referral Unit)

The Governing Body must:

• ask for any written evidence in advance of the meeting (including witness statements and other relevant information held by the school, such as those relating to a pupil’s Special Educational Needs). 
• circulate any written evidence and information, including a list of those who will be present, to all parties at least five school days in advance of the meeting. 
• allow parents and pupils to be accompanied by a friend or representative.
• identify the steps they will take to enable and encourage the excluded pupil to attend the meeting and speak on his / her own behalf, taking into account the pupil’s age and understanding; or by other means if attending the exclusion meeting is not possible.

When considering the exclusion, the Governing Body must consider:

• the interests and circumstances of the excluded pupil
• the circumstances in which the pupil was excluded, and
• have regard to the interests of other pupils and people working at the school.

When establishing the facts in relation to an exclusion decision the Governing Body must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true. 

In reaching a decision on whether or not to reinstate a pupil, the Governing Body should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking account of the head teacher’s legal duties. 

In the light of their consideration, the Governing Body can either:

• uphold an exclusion; or
• direct reinstatement of the pupil immediately or on a particular date. 

Where reinstatement is not practical because for example, the pupil has already returned to school following the expiry of a fixed period exclusion or the parents make clear they do not want their child reinstated, the Governing Body must, in any event, consider whether the head teacher’s decision to exclude the child was justified based on the evidence.

The Governing Body must notify parents, the head teacher and the local authority of their decision, and the reasons for their decision, in writing and without delay. The Governing Body should set out the reasons for their decision in sufficient detail to enable all parties to understand why the decision was made.

Parents do have the option of escalating an exclusion appeal to the Independent Review Panel. If applied for by parents within the legal time frame, the local authority or (in the case of an Academy) the Academy Trust must, at their own expense, arrange for an independent review panel hearing to review the decision of a governing body not to reinstate a permanently excluded pupil.

The head teacher’s duty to remove a permanently excluded pupil’s name from the school registers

The head teacher must remove a pupil’s name from the school admissions register if: 

• 15 school days have passed since the parents were notified of the governing body’s decision to uphold a permanent exclusion and no application has been made for an independent review panel; or 
• The parents have stated in writing that they will not be applying for an independent review panel. 

Where an application for an independent review panel has been made within 15 school days, the head teacher must wait until the review has been determined, or abandoned, before removing a pupil’s name from the register. 

Where a pupil’s name is removed from the school register and a discrimination claim is subsequently made, the First-tier Tribunal or County Court has the power to direct that the pupil should be reinstated. 

Independent Review Panel 

One of the key changes brought about by the updated 2017 statutory guidance is that there is a greater onus on the governing board to present their reasoning (In the case of an upheld exclusion) to the Independent Review Panel. In the past it was predominantly the Headteacher who would have to justify their decision to exclude to the IRP but now there is a much greater expectation on the Governing Board. 

The revised guidance makes clear that following an IRP decision to direct or recommend reconsideration of an exclusion decision, the governing board’s duty is to reconsider reinstatement. Where the panel directs or recommends that the governing board reconsider whether a pupil should be reinstated, the governing board must reconvene to do so
within ten school days of being given notice of the panel’s decision. 

It is important that the governing board conscientiously reconsiders whether the pupil should be reinstated, whether the panel has directed or merely recommended it to do so. Whilst the governing board may still reach the same conclusion as it first did, it may face challenge in the courts if it refuses to reinstate the pupil, without strong justification.

In the case of either a recommended or directed reconsideration, the governing board must notify the following people of their reconsidered decision, and the reasons for it, in writing and without delay:

• the parents;
• the head teacher;
• the local authority; and, where relevant, the ‘home authority’.

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