UK: A Guide To The Exclusions Procedure

Last Updated: 8 March 2019
Article by Graham Shaw

The key elements of the, often either misunderstood or not properly implemented, exclusions procedure for maintained schools and academies.

In our work with schools and academies, we encounter situations where exclusions procedure is not correctly implemented or is simply misunderstood.. This article summarises the key elements of the exclusions procedure for maintained schools and academies under the Education Act 2002 (the "Act") and the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (the "Regulations"). The procedure for pupil referral units and alternative provision academies is different and so not covered.

In this note, references to "governing body" include the governing body of a maintained school and the board of directors/trustees of an academy trust, as applicable.

Stage 1: Head teacher decision

The head teacher decides whether to exclude a pupil for a fixed period or permanently and, when establishing any fact, decides whether that fact is established on the balance of probabilities.

A pupil may not be excluded for one or more fixed periods if the result would be to exclude the pupil for more than 45 days in any school year.

It is key that any decision takes proper account of any possible disability discrimination and the duty to make reasonable adjustments.

Stage 2: Head teacher informs

Without delay, the head teacher must inform the parent (or pupil, if aged 18) of:

  • the period of exclusion and the reasons for it;
  • that they (and the pupil, if aged under 18) may make representations to the governing body; and
  • the procedure for making representations.

Where the exclusion is permanent or the pupil will be excluded for more than 5 days in any term or miss a public exam or National Curriculum test, the head teacher must also inform the governing body and local authority of the period of the exclusion (with reasons) and inform the parent (or pupil, if aged 18) that they may attend the governing body and be represented and accompanied by a friend.

Stage 3: Governing body decision

Governing body informed by head teacher

Where the head teacher has informed the governing body of

  • a permanent exclusion,
  • an exclusion where, as a result, the pupil would be excluded for a total of more than 15 school days in any term or would lose the opportunity to take a public exam or a National Curriculum Test or
  • an exclusion where, as a result, the pupil would be excluded for a total of more than 5 school days in any term and the parent (or pupil, if aged 18) makes representations to the governing body,

the governing body must decide whether the pupil should be reinstated and, if so, whether immediately or by a particular date and do so:

  • within 15 school days of a permanent exclusion or an exclusion for a fixed period where the pupil will be excluded for more than 15 school days in any term or miss a public exam or National Curriculum test; or
  • within 50 school days of an exclusion for a fixed period where the pupil will be excluded for more than 5 (but not more than 15) school days in any term and the parent (or pupil, if aged 18) has made representations to the governing body.

When making its decision, the governing body must:

  • consider the pupil's interests and circumstances;
  • have regard to the interests of other pupils and persons working at the maintained school or academy;
  • consider any representations made to it by or on behalf of the parent (or pupil, if aged 18), the head teacher or (for a maintained school) the local authority; and
  • take reasonable steps to arrange a meeting to consider the exclusion when the head teacher, the parent (or pupil, if aged 18), the local authority (in the case of a maintained school) and, if requested by the parent (or pupil, if aged 18) at an academy, their representative or friend and a representative of the local authority are able to attend and make representations.

When establishing any fact, the governing body must decide whether that fact is established on the balance of probabilities.

Where the pupil will miss a public exam or National Curriculum test, the governing body must, so far as is reasonably practicable, decide if the pupil should be reinstated before the date of the exam or test.

Governing body not informed by head teacher

Where the head teacher is not required to inform the governing body of the exclusion (with reasons) - because the pupil has been excluded for less than 5 days in any term and will not miss a public exam or National Curriculum test - but the governing body receives representations from the parent (or pupil, if aged 18), the governing body must consider those representations.

Stage 4: Reinstatement

Pupil reinstated

If the governing body decides that the pupil should be reinstated, it must (without delay):

  • direct the head teacher to reinstate the pupil; and
  • inform the parent (or pupil, if aged 18) and the local authority of itsdecision (with the reasons) in writing.

The head teacher must comply with the direction by the governing body.

Pupil not reinstated

If the governing body decides not to reinstate the pupil, it must (without delay) inform the parent (or pupil, if aged 18), head teacher and local authority of its decision (with the reasons) in writing.

Where the pupil is permanently excluded, the governing body must also confirm to the parent (or pupil, if aged 18) in writing:

  • that the exclusion is permanent;
  • that the parent (or pupil, if aged 18) may apply for the decision of the governing body to be reviewed by a review panel and may require the local authority (in the case of a maintained school) or the academy trust (in the case of an academy) to appoint a special educational needs ("SEN") expert to advise the panel);
  • the role of the SEN expert in relation to the review;
  • the procedure for applying for a review;
  • that the parent (or pupil, if aged 18) may appoint someone to represent them at the review; and
  • that the parent (or pupil, if aged 18) may claim under the Equality Act 2010 (with the time period for a claim) where they believe there has been unlawful discrimination.

Stage 5: Review panel

Arrangements

Where the parent (or pupil, if aged 18) applies for a review within 15 school days of receiving notice of the governing body decision, the local authority (in the case of a maintained school) or the academy trust (in the case of an academy) must:

  • make arrangements for the review of the governing body decision; and
  • if requested by the parent (or pupil, if aged 18) when they apply for a review, appoint an SEN expert to advise impartially on how SEN may be relevant to the exclusion.

Constitution

The review panel must consist of 3 or 5 members appointed by the local authority (for a maintained school) or the academy trust (for an academy) from:

  • persons who have never worked in a school in a paid capacity ("Group 1");
  • head teachers (or persons who have held that position during the last 5 years) ("Group 2"); and
  • persons who are or have been a governor of a maintained school, a member of a pupil referral unit management committee or a trustee/director of an academy trust  where they have served in that capacity for at least 12 consecutive months within the last 5 years and have not been a teacher or a head teacher in any school in the last 5 years ("Group 3").

For a panel of 3 members, one member is drawn from each Group.

For a panel of 5 members, one member is drawn from Group 1 and two members are drawn from each of Group 2 and Group 3.

The panel may not include:

  • any member or director of the local authority or the governing body (in the case of a maintained school) or the academy trust (in the case of an academy);
  • the head teacher of the maintained school or academy in question (or any person who has held that position within the last 5 years);
  • an employee of the local authority or the governing body (in the case of a maintained school) or the academy trust (in the case of an academy) other than the head teacher of another maintained school or academy); or
  • anyone who has had any connection with the parent (or pupil, if aged 18), the pupil, the incident leading to the exclusion or the maintained school, local authority or governing body (in the case of a maintained school), orthe academy or academy trust (in the case of an academy) which might reasonably be taken to raise doubts about that person's impartiality.

Training

During the last 2 years, each member of the review panel must have received sufficient information and instruction to know and understand:

  • the requirements of legislation and statutory guidance governing exclusions;
  • the role of the chair of a review panel;
  • the role of the clerk to a review panel;
  • the relevant effect of the Equality Act 2010;
  • the requirement to act compatibly with human rights under the Human Rights Act 1998 and the Convention for the Protection of Human Rights and Fundamental Freedoms; and
  • the need to observe procedural fairness and the rules of natural justice.

Clerking

The local authority (for a maintained school) or the academy trust (for an academy) may appoint a clerk to advise the review panel and the parties to the review on the procedure for the review and the law and statutory guidance relating to exclusions.

The clerk must have received sufficient information and instruction, during the last 2 years, to meet the above training requirements for panel members.

The clerk must make reasonable efforts to provide all parties with copies of relevant documents at least 5 school days before the start of the review.

Decision

The review panel may:

  • uphold the decision of the governing body;
  • recommend that the governing body reconsiders the exclusion; or
  • if it considers that the decision of the governing body was flawed in light of the principles applicable on application for judicial review, quash the decision of the governing body and direct them to reconsider the exclusion.

The review panel must consider the pupil's interests and circumstances and have regard to the interests of other pupils and persons working at the maintained school or academy.

When establishing any fact, the review panel must decide whether that fact is established on the balance of probabilities.

The decision of the review panel is binding on the parent (or pupil, if aged 18), the governing body, the head teacher and the local authority.

The review panel may direct the governing body to place a note on the pupil's educational record.

Stage 6: Reconsideration by governing body

Where the review panel

  • recommends that the governing body reconsiders a decision not to reinstate a pupil who has been permanently excluded or
  • quashes the governing body decision and directs the governing to reconsider the matter,

the governing body (within 10 school days of receiving notice of the review panel decision) must reconvene to reconsider the exclusion.

When establishing any fact, the governing body must decide whether that fact is established on the balance of probabilities.

The governing body must inform the parent (or pupil, if aged 18), the head teacher and the local authority of their reconsidered decision.

Where the panel quashed the governing body decision but the governing body reconsiders the exclusion and decides not to reinstate the pupil or the governing body fails to reconsider the exclusion within 10 school days of receiving notice of the review panel decision, the review panel may order the local authority (for a maintained school) to adjust the school's budget share by £4,000 or order the academy trust (in the case of an academy) to pay £4,000 to the local authority.

Closing remarks

Given the recent media spotlight on the high rate of exclusions, including the higher incidence of exclusion of disadvantaged and SEND pupils, it is more important than ever for schools and academies to follow the correct procedure when excluding a pupil, reviewing that exclusion and reconsidering the exclusion following a review panel decision. Given that the actions by a governing body following the decision of a review panel can have financial consequences for the school or academy, there is also a financial incentive for schools and academies to follow the correct procedure which cannot be overstated in the current financial climate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions