Exclusion update

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Young woman with daughter during teacher-parent meeting at school

Douglas Silas on the new guidance for school exclusion.

The updated statutory guidance on exclusion came into effect in England in September 2022. It accompanies ‘Behaviour in schools’, which provides updated advice on pupil behaviour. The exclusion guidance is for headteachers, governing boards, local authorities (LAs), academy trusts, independent review panel (IRP) members and SEN experts, social workers and Virtual School Heads (VSHs), which they must have regard to in relation to suspensions and permanent exclusions. IRP clerks must also be well-versed in this guidance.  

The new guidance replaces the version of the guidance published in 2017 and it will be kept under review and updated as necessary.  Interestingly, it says that: ‘This guidance should not be taken as a complete or definitive statement of the law nor as a substitute for the relevant legislation. Legal advice should be sought as appropriate.’ However, it adds that the guidance relates to legislation and is based on rules contained in the Education Act 2002 and other legislation.

What does the guidance say?
The guidance says its overall aim is to achieve good behaviour in schools, to ensure that all pupils benefit from the opportunities provided by education. It says that the vast majority of suspensions and permanent exclusions may not be necessary, as other strategies can manage behaviour. However, it says that sometimes behaviour management approaches may be exhausted and exclusions (whether suspensions or permanent exclusions) may be necessary as a last resort, to ensure that other pupils and teaching staff are protected from disruption and can learn in safe, calm and supportive environments.

The guidance also warns against schools and local authorities (LAs) having a ‘no exclusion policy’ as an end it itself, as it says that this can lead to perverse incentives for schools not to exclude, even where exclusion may be better for a pupil, who may then be able to access ‘Alternative Provision’, to ensure that they can remain engaged in education.

What is exclusion?
The exclusion process is still pretty much the same as it has been for some time, although it has been updated to incorporate changes recommended in the Edward Simpson report on school exclusions of May 2019. The helpful diagram on the left gives a good overview of the exclusion process. 

There is also a duty on the LA/academy trust to arrange an independent review panel (IRP) to provide another level of scrutiny to ensure that exclusions are lawful, reasonable and procedurally fair. An IRP must be set up within 15 school days of notice being given to parents of the child/young person concerned by the governing board of its decision not to reinstate a permanently excluded pupil (or within 15 schools days of the final determination of a claim of discrimination in relation to the permanent exclusion). 

Also, parents may request an IRP even if they did not make representations to or attend the governing board’s meeting. Importantly, it says that the role of the panel is to review the governing board’s decision not to reinstate or permanently exclude a pupil, whilst taking into account a pupil’s age and understanding, but must also have regard to the interests of other pupils and people working at the school.

What has changed in this edition?
The guidance says that the updates to this edition are as follows:

  • Headteachers may cancel an exclusion that has not been reviewed by the governing board.
  • When a headteacher suspends or permanently excludes a pupil they must, without delay, notify parents (or their social worker and/or VSH if appropriate).
  • Headteachers must also notify the local authority, without delay (regardless of the length of the suspension).
  • Guidance on the role of the social worker and VSH (during governing board and IRP meetings).
  • Guidance on managed moves.
  • Clarification to guidance on the use of ‘off-site direction’ as a short-term measure.
  • Further guidance on the practice of involving pupils’ participation at all stages of a suspension/permanent exclusion process (bearing in mind their age and ability to understand).
  • Guidance for governing boards to review data before setting a permanent exclusion.

Exclusion and SEN
The guidance talks about the need to involve (amongst other people) an ‘SEN expert’ in the conduct of an independent review, and it points out that the role of the IRP is to assess whether a pupil’s exclusion has been lawful, reasonable and fair and what further action might need to be taken. It describes how IRP meetings should be conducted and the roles of relevant experts and advocates.

Where the pupil involved has SEN, the panel must seek and take into account the SEN expert’s view of how SEN may be relevant to the pupil’s permanent exclusion.  It says that the focus of the SEN expert’s advice should be on whether the school’s SEN policies were ‘lawful’, ‘reasonable’, and ‘procedurally fair’ (in line with the guidance to the panel). It says that if the SEN expert believes that this is not the case they should, where possible, advise the panel on the possible contribution that this could have made to the circumstances of the pupil’s permanent exclusion.  It also adds that where a school does not recognise a pupil as having SEN, the SEN expert should also advise the panel with respect to the justification of this or that the pupil may potentially have.  

The new Guidance concludes by saying that the SEN expert should not criticise schools’ policies or actions simply because they believe a different approach should have been taken. It adds that where an SEN expert has been requested but is not present, the panel should make parents aware of their right to request that the review is not scheduled until an SEN expert can attend. It also points out that the First tier Tribunal (SEND) and County Court can hear claims of discrimination relating to permanent exclusion, but this does not prevent an IRP from considering issues of discrimination when reaching its decision.

Douglas Silas
Author: Douglas Silas

Douglas Silas
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Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
W: SpecialEducationalNeeds.co.uk
T: @douglassilas
F: @douglassilas

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