Exclusions

This is the link to the Government’s Statutory guidance on the exclusion of pupils from local-authority-maintained schools, academies and pupil referral units:

https://www.gov.uk/government/publications/school-exclusion

Exclusion from school from IPSEA

https://www.ipsea.org.uk/what-steps-does-the-school-have-to-take

“Children with special educational needs and disabilities (SEND) are much more likely to be excluded from school than their classmates.

Only the head teacher of a school (or the teacher in charge of a pupil referral unit or the principal of an academy) can exclude a pupil.

There are only two types of exclusion from a school which are lawful: permanent and fixed-period. This means that legally a pupil is either in school full-time or they are excluded from school. They can be excluded for a fixed term (for a specific number of school days) or permanently excluded. Any exclusion of a pupil, even for a short period of time, must be formally and accurately recorded.

Pupils can only be excluded for disciplinary reasons: they cannot be excluded because a school, pupil referral unit (PRU) or academy cannot meet their needs or for something which their parents did or did not do.

‘Informal’ or ‘unofficial’ exclusions, such as sending a pupil home to cool off or the school putting a pupil on a ‘part-time timetable’, are all unlawful regardless of whether they occur with the agreement of parents or carers.

Unlawful exclusion of a pupil with a disability may amount to disability discrimination under the Equality Act 2010.

Most of the content in this section relates only to pupils at maintained schools, academies or pupil referral units.

What steps does the school have to take?

No child should be excluded for an indefinite period, or for a non-disciplinary reason, or without formal notice in writing from the head.

What should I do if my child is excluded?

Children with special educational needs may be excluded for reasons which arise from their needs not being properly met. If your child has been excluded, whether for a fixed term or permanently, you should consider what actions you can take to try to get their needs met more effectively and avoid further exclusions in the future.

The actions you can take will be different depending on whether your child has an education, health and care plan or not:

If you have an EHC plan

An EHC plan is a legal document, and the LA has a duty under the law to ensure that the special educational provision set out in the EHCP is provided.

If you believe that your child has been excluded as a result of their special educational needs not being met, you may need to consider one or more of the following:

  1. Has the provision set out in Section F of the EHC plan been arranged? If not, you should make a complaint to the LA about their failure to implement the EHC plan.
  2. Is the provision in the EHC plan the right kind of provision, and/or is there an adequate amount of support? If not, write to the LA asking for an early Annual Review. At the Annual Review you can request that changes are made to add more support, or make the description of the support required more specific. This is particularly urgent if your child has been permanently excluded as you will need to choose a new school to name in the EHC plan.
  3. If you feel that the EHCP does not accurately reflect your child’s needs or the provision they require, and that new information is required in order to work this out, you may wish to ask for a re-assessment.
  4. Read the relevant sections of the statutory guidance ‘Exclusion from maintained schools, academies and pupil referral units in England’. In particular, if your child has been given a fixed-term exclusion, check paragraph 25, which consider the steps a school should take to support your child. If your child has been given a permanent exclusion, check paragraphs 75 and 76, which sets out the matters of which you must be notified by the governing body.
  5. If your child has been permanently excluded, consider whether you want to use your right to have a SEN expert present at the independent review panel.
  6. If your child has been excluded for more than 5 days, they are entitled to alternative education. You should ensure this education is provided.
  7. You should also note that during the first 5 days of any exclusion a parent must ensure that the child is not present in a public place during school hours without reasonable justification. Parents can be given a fixed penalty notice of £50 if they fail to do this.

 

How can I ensure alternative education is provided?

For a fixed-term exclusion of more than five school days, or a permanent exclusion, the pupil must be provided with suitable alternative education.

The duty to provide ‘suitable’ education means that there is a duty to make provision which will meet your child’s special educational needs.

For a fixed-term exclusion, the governing body of the school is obliged to provide alternative education. Your local authority has a continuing duty (under section 42 of the Children and Families Act 2014) to ensure the provision set out in the EHCP is provided, even while the pupil is excluded. This means if the school cannot make alternative provision which delivers the support set out in the EHCP, the LA must do so.

For a permanent exclusion, it is the LA who must provide the alternative education. You should write to the Director of Children’s Services at your LA as soon as you learn that your child has been permanently excluded, telling them that you expect full time provision to be made.

In your letter or email, you should set out:

  • the date by which the LA will have a duty to provide full-time education for your child (i.e. from the sixth school day after the exclusion)
  • your child’s age
  • details of your child’s special educational needs and of the provision which will be required in order for the alternative education provision to be ‘suitable’
  • attach a copy of your child’s EHC plan, and ask for details of how the LA intends to ensure that the special educational provision is received.

Keep a copy of your letter so you have a record of your contact with the LA.

As above, the LA has a continuing duty to ensure that the provision in the EHCP is received. This duty applies even though your child is excluded from school.

If you do not have an EHCP

If you believe that your child has been excluded as a result of their special educational needs not being met, there are a number of steps you can take.

  1. Ask for your child to be assessed for SEN Support.
  2. If your child is already receiving SEN Support, ask for an urgent review of this support. If you are concerned they have not been receiving the support agreed, ask to see the educational record.
  3. Check the school’s SEN information report (this is about SEN provision the school says it provides and should be on the school’s website). See whether there is anything else which could help your child, which the school is able to provide.
  4. If you believe the school could be doing more, complain to Governors that their duties under section 66 of the Children and Families Act 2014 have not been fulfilled – this is the duty to use their ‘best endeavours’ to ensure that children with special needs receive provision to meet their needs.
  5. If you believe your child needs more support to meet their SEN than the school can provide, you may wish to request an EHC needs assessment.
  6. You may consider that a change of school is necessary.
  7. Read the relevant sections of the statutory guidance ‘Exclusion from maintained schools, academies and pupil referral units in England’. In particular, if your child has been given a fixed-term exclusion, check paragraphs 13,19 and 22, which consider the steps a school should take to support your child. If your child has been given a permanent exclusion, check paragraphs 75 and 76, which sets out the matters of which you must be notified by the governing body.
  8. If your child has been permanently excluded, consider whether you want to use your right to have a SEN expert present at the independent review panel.
  9. If your child has been excluded for more than 5 days, they are entitled to alternative education. You should ensure this education is provided.
  10. You should also note that during the first 5 days of any exclusion a parent must ensure that the child is not present in a public place during school hours without reasonable justification. Parents can be given a fixed penalty notice of £50 if they fail to do this.

 

How can I ensure alternative education is provided?

For a fixed-term exclusion of more than five school days or a permanent exclusion, the pupil must be provided with suitable alternative education.

The duty to provide ‘suitable’ education means that there is a duty to make provision which will meet your child’s special educational needs.

For a fixed-term exclusion, the governing body of the school is obliged to provide alternative education. You should ask for this to include SEN Support if your child does not already have this.

For a permanent exclusion, it is the local authority who must provide the alternative education. You should write to the Director of Children’s Services at your LA as soon as you learn that your child has been permanently excluded, telling them that you expect full time provision to be made.

In your letter or email, you should set out:

  • the date by which the LA will have a duty to provide full-time education for your child (i.e. from the sixth school day after the exclusion)
  • your child’s age
  • details of your child’s special educational needs and of the provision which will be required in order for the alternative education provision to be ‘suitable’.

Keep a copy of your letter so you have a record of your contact with the LA.

Disability discrimination and exclusions

If a school unfairly excludes a child with a disability, this may amount to disability discrimination.

A child is disabled if they have a long-term physical or mental impairment which has an adverse effect on their ability to carry out day-to-day activities (this is the definition in the Equality Act 2010).

A school may have discriminated against a disabled child if they were aware of the child’s disability and the exclusion was because the child is disabled or because of something which happened because of their disability. This could be because of a school policy which is in fact discriminatory towards pupils with disabilities. You should consider whether the school has made reasonable adjustments to accommodate the child’s disability (e.g. giving the child SEN Support in school – see chapter 6 of the SEN and Disability Code of Practice).

However, the school may be able to argue that there was a legitimate reason for the exclusion such as health and safety.

Fixed term for up to 5 days

There are a number of things the school is legally required to do when a pupil is excluded for up to 5 days.

  1. The Head must write immediately giving length and reason for exclusion.
  2. The Head must inform the Governors and LA only if an external exam or National Curriculum test would be missed or if the total days excluded in that term are more than 5. (The maximum number of days in a school year for which a child can be given fixed-term exclusions is 45.)
  3. The Governors must meet only if:
  • an external exam or National Curriculum test would be missed or
  • the total days excluded in that term is over 5 and parents ask for a meeting.

4. If there is a meeting, parents have the right to attend.

5. Parents have the right to make ‘written representations’ which must be considered by governors even where there is no requirement for a meeting.

6. School must take reasonable steps to set and mark work for the first five days of a period of exclusion.

7. School or LA may ask parent to sign a Parenting Contract or apply to Magistrates’ Court for a Parenting Order.

Entitlement to alternative education      

The statutory guidance ‘Exclusion from maintained schools, academies and pupil referral units in England’ says that 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. In particular, in the case of a looked after child, schools and local authorities should work together to arrange alternative provision from the first day following the exclusion.

The guidance goes on to say that 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.

Fixed term for between 5 and 15 days

There are a number of things the school is legally required to do when a pupil is excluded for between 5 and 15 days.

  1. The Head must write immediately giving length and reason for exclusion.
  2. The Head must inform the Governors and LA.
  3. The Governors must meet only if:
  • an external exam or National Curriculum test would be missed or
  • the total days excluded in that term is over 15 or
  • the total is between 5 and 15 and parents request a meeting.

(Note that the maximum number of days in a school year for which a child can be given fixed-term exclusions is 45).

  1. Parents have the right to make ‘written representations’ which must be considered by governors and to attend any meeting if parents request it.
  2. School must take reasonable steps to set and mark work for the first five days of a period of exclusion and alternative provision must be arranged from the sixth day.
  3. School or LA may ask parent to sign a Parenting Contract or apply to Magistrates’ Court for a Parenting Order.

 

Entitlement to alternative education          

For a fixed period exclusion of more than five school days, the governing body (or local authority in relation to a pupil excluded from a pupil referral unit) must arrange suitable full-time education for any pupil of compulsory school age. This provision must begin no later than the sixth day of the exclusion.

Fixed term for over 15 days

There are a number of things the school is legally required to do when a pupil is excluded for over 15 days. (The maximum number of days in a school year for which a child can be given fixed-term exclusions is 45).

  1. The Head must write immediately giving length and reason for exclusion.
  2. The Head must inform the Governors and LA.
  3. The Governors must meet within 15 days of receiving the notice of the exclusion (NB if the exclusion will result in the pupil missing an external or National Curriculum exam they must take reasonable steps to meet before the exam).
  4. Parents have the right to make ‘written representations’ which must be considered by governors and to attend the meeting.
  5. School must take reasonable steps to set and mark work for the first five days of a period of exclusion and alternative provision should be arranged from the sixth day.
  6. School or LA may ask parent to sign a Parenting Contract or apply to Magistrates’ Court for a Parenting Order.

 

Entitlement to alternative education          

For a fixed period exclusion of more than five school days, the governing body (or local authority in relation to a pupil excluded from a pupil referral unit) must arrange suitable full-time education for any pupil of compulsory school age. This provision must begin no later than the sixth day of the exclusion.

 

Permanent exclusions

A permanent exclusion is where a pupil is told they cannot come back to the school. This is also called being expelled. There are a number of things the school is legally required to do when a pupil is permanently excluded.

1. The Head must write immediately explaining that the exclusion is permanent and giving the reason for the exclusion.

2. The Head must inform the Governors and LA. If the pupil lives outside the local authority in which the school is located, the head teacher must also advise the ‘home authority’ of the exclusion without delay.

3. The Governors must meet within 15 days of receiving the notice of exclusion (NB if the exclusion will result in the pupil missing an external or National Curriculum exam they must take reasonable steps to meet before the date of the exam) and parents have the right to attend.

4. Parents have the right to make ‘written representations’ which must be considered by governors.

5. LAs are required to arrange educational provision for excluded pupils of compulsory school age from all institutions from the sixth day of a permanent exclusion.

6. Where parents (or the excluded pupil if aged 18 or over) dispute the decision of a governing body not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel.

7. The school or LA may ask parent to sign a Parenting Contract or apply to Magistrates’ Court for a Parenting Order.

 

What is an independent review panel?

Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel. An independent review panel does not have the power to direct a governing board to reinstate an excluded pupil. However, where a panel decides that a governing board’s decision is flawed when considered in the light of the principles applicable on an application for judicial review, it can direct a governing board to reconsider its decision.

Whether or not a school recognises a pupil as having SEN, all parents have the right to request the presence of an SEN expert at a review meeting. The SEN expert’s role is to advise the review panel, impartially, of the relevance of SEN in the context and circumstances of the review. For example, they may advise whether the school acted reasonably in relation to its legal duties when excluding the pupil.

 

Entitlement to alternative education

For permanent exclusions, it is the local authority (and not the school) which must arrange suitable full-time education for the pupil to begin no later than the sixth day of the exclusion. This will be the pupil’s ‘home authority’ in cases where the school is maintained by (or located within) a different local authority.

‘Full-time’ means supervised education equivalent to that provided by mainstream schools.

You can find further advice on what you should do if your child is excluded, including ensuring alternative education is provided, here.