From 1 September 2017, new statutory guidance on exclusion from maintained schools, academies and pupil referral units (PRUs) in England comes into effect.

Any pupil who was excluded before 1 September 2017, and whose exclusion is still subject to review at this point, should be considered on the basis of the DfE’s exclusion guidance, published in September 2012.

This guidance document explores the changes to the statutory guidance, ensuring you are up-to-date and compliant with any new and adjusted requirements.

What has changed?

Various aspects of the guidance are new or have been clarified, updated or removed ─ the status of the information in this guidance is signalled by the following:

  • New – requirements or guidance that are new
  • Clarification – requirements or guidance that existed in the previous version but additional information has been added to provide clarity
  • Update – requirements or guidance that have altered from the previous version
  • Removed – requirements or guidance that were included in the previous version that have been removed from the most up-to-date version

The explained changes are split into the sections as they appear in the guidance.

Overall changes to phrasing

A few changes have been made to the way certain aspects of the exclusion process are referred to – these do not change the statutory requirements on schools, but do provide clarity to the 2012 guidance:

  • ‘Reinstating a pupil’ is used when referring to allowing a permanently excluded pupil to come back to school.
  • ‘Consider reinstating a pupil’ is used where the 2012 guidance refers to the governing board reconsidering their ‘decision’ – this provides clarity as the meaning of decision was previously unclear.  

Summary

[New] Clerks to independent review panels must be trained to know and understand this statutory guidance.

[Update] The term ‘governing board’ includes the governing body of a maintained school, the management committee of a PRU and the academy trust of an academy – in the previous guidance, maintained schools were not mentioned.

 

Section 1 – About this guide

[New] The Education Act 1996 is listed in the principal legislation that the guidance refers to.

[New] An ‘academic year’ is defined as a school’s academic year beginning with the first day of school after 31 July and ending with the first day of school after the following 31 July.

 

Section 2 – Key points

[New] The legislation governing the exclusion process remains unchanged. The statutory guidance has been updated in a small number of areas to provide greater confidence to headteachers on their use of exclusion and to provide more clarity to independent review panels and governing boards on their consideration of exclusion decisions.

[New] In January 2015, the DfE amended regulations to clarify that a governing board’s duty to arrange education from the sixth day of a fixed-period exclusion is triggered by consecutive fixed-period exclusions totalling more than five days.

[Clarification] A special educational needs and disabilities (SEND) expert can offer an independent review panel impartial advice written, orally or both – the 2012 guidance did not state how the expert could provide advice. 

 

Section 3 – The headteacher’s power to exclude

[Update] The law does not allow for extending a fixed-period exclusion or ‘converting’ a fixed-period exclusion into a permanent one. 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 period ends. Alternatively, a permanent exclusion may be issued to begin after the end of the first period – the 2012 version allowed a fixed-period exclusion to be extended or converted in exceptional cases.

[Update] The behaviour of a pupil outside school can be considered grounds for an exclusion – the 2012 guidance also added that this will be a matter of judgement for the headteacher in accordance with the school’s behaviour policy; however, this has been removed.  

[New] The Equality Act 2010 has been added to the legislation schools must have regard to when making a decision about an exclusion.

[Clarification] Headteachers must apply the civil standard of proof when establishing the facts relating to an exclusion; i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true, this means that the headteacher should accept that something happened if it is more likely that it happened rather than it did not – the 2012 guidance did not clarify what beyond reasonable doubt means.

[Update] Schools have a duty to make reasonable adjustments for pupils with SEND  to policies and practices, and the provision of auxiliary aids – the 2012 guidance did not specify auxiliary aids. 

[Clarification] A pupil at any type of school can transfer to another school as part of a ‘managed move’ where this occurs with the content of the parties involved, including the parents and the admission authority of the school.

[New] In relation to LAC, schools should cooperate proactively with foster carers or children’s home workers, the LA that looks after the child and the LA’s virtual school head – the 2012 guidance did not mention LA virtual heads.

 

Section 4 – The headteacher’s duty to inform parties about an exclusion

4.1 The headteacher’s duty to inform parents about an exclusion

[Update] Written notification of the exclusion of a pupil to their parents can be provided by delivering it directly to the parents, leaving it at their usual or last known home address, or by posting it to that address – the 2012 guidance did not stipulate that notification could be left at or posted to the parent at their usual address.

[Update] Notification of the exclusion of a pupil to their parents can be given electronically if the parents have given written agreement for this kind of notice to be sent in this way – the 2012 guidance did not state this.  

[Update] Headteacher’s must notify an excluded pupil’s parents the days on which they must ensure that the pupil is not present in a public place at any time during school hours. These days would be the first five school days of an exclusion, the start date of any alternative provision, or the end of the exclusion, where this is earlier – the 2012 version did not include the end of the exclusion as an option.

[Update] If a pupil is excluded for a further fixed-period following their original exclusion, or is subsequently permanently excluded, the headteacher must inform their parents without delay and issue a new exclusion notice to them – this has been amended from the 2012 version to reflect that fixed-period exclusions can no longer be converted or extended.

4.2 Statutory guidance to the headteacher on informing parents about an exclusion

[New] Notification to parents of an exclusion, in the first instance, should be made in person or by telephone as this would give parents an opportunity to ask any initial questions or raise concerns directly with the headteacher.

[New] The following sources have been added to the list of free and impartial information that headteacher’s should draw to the attention of parents when notifying them of an exclusion:

  • ACE Education (http://www.ace-ed.org.uk/) and their advice line service on 03000 115 142 on Monday to Wednesday from 10:00am to 1:00pm during term time
  • The Information Advice & Support Services Network (formerly known as the local parent partnership)
  • The National Autistic Society (NAS) School Exclusion Service (England) (0808 800 4002 or schoolexclusions@nas.org.uk
  • Independent Parental Special Education Advice (https://www.ipsea.org.uk/)

4.3 The headteacher’s duty to inform the governing board and LA about an exclusion

[Update] The headteacher must, without delay, notify the governing board and LA of any permanent exclusion, including where a fixed-period exclusion is followed by a decision to permanently exclude the pupil – this has been amended to reflect that fixed-period conversions can no longer be extended or converted.  

 

Section 5 – The governing board’s and LA’s duties to arrange education for excluded pupils

[New] Where a pupil receives consecutive fixed-period exclusions, these are regarded as a cumulative period of exclusion for the purposes of the duty to provide suitable full-time education for an excluded pupil. This means that if a pupil has more than five consecutive school days of exclusion, then education must be arranged for the sixth school day of exclusion, regardless of whether this is a result of one fixed-period or more than one fixed-period exclusion.

[Update] Where a pupil has an education, health and care (EHC) plan, the LA may need to review the plan or reassess the pupil’s needs, in consultation with parents, with a view to identifying a new placement – 2012 version refers to statement of SEN.

 

Section 6 – The governing board’s duty to consider an exclusion

6.1 The requirements on a governing board to consider an exclusion

[Update] In the case of a maintained school, the governing board may delegate its functions with respect to the consideration of an exclusion to a designated sub-committee consisting of at least three governors – the 2012 version did not stipulate that this is maintained school specific.

[New] In the case of an academy, the governing board may delegate its functions with respect to the consideration of an exclusion to a smaller sub-committee if the trust’s articles of association allow them to do so.

[Update] The requirements on governing boards to consider the reinstatement of an excluded pupil are different for fixed-period exclusions where a pupil would be excluded for more than five but less than 15 days in the term. In this case, if the parents make representations, the governing board must consider within 50 schools days of receiving the notice of exclusion whether the excluded pupil should be reinstated. In the absence of any representations from the parents, the governing board is not required to meet and cannot direct the reinstatement of the pupil.

[Clarification] In the case of a maintained school, if it is not practicable for a sufficient number of governors to consider an exclusion decision where the exclusion would result in a pupil missing an examination or test, the chair of governors may consider the exclusion alone and decide whether or not to reinstate the pupil – the 2012 version did not stipulate that this is maintained school specific.

[New] In the case of an academy, if it is not practicable for a sufficient number of governors to consider an exclusion decision where the exclusion would result in a pupil missing an examination or test, the decision to reinstate the pupil may be considered by a smaller sub-committee if the trust’s articles of association allows them to do so.

[New] Where requested by parents, a representative or friend of parents must be invited to a meeting of the governing board regarding considering an exclusion.

[Update] Where the governing board is legally required to consider the reinstatement of an excluded pupil they should (there is then a list of what governing board’s should do which has not been altered from what is stipulated in the 2012 guidance) – this wording has been amended from the 2012 version where governing boards were legally required to consider the decision of a headteacher to exclude a pupil.

6.2 The requirements on a governing board when considering the reinstatement of an excluded pupil

[Update] Where reinstatement would make no practical difference because for example, the pupil has already returned to school following the expiry of a fixed-period exclusion or the parents make it clear they do not want their child reinstated, the governing board must still consider whether the pupil should be officially reinstated. If it decides against reinstatement of a pupil who has been permanently excluded, the parents can request an independent review – the 2012 version did not stipulate that parents can request an independent review.

[Update] In reaching a decision on whether or not a pupil should be reinstated, the governing board should consider whether the decision to exclude the pupil was lawful, reasonable and procedurally fair, taking into account the headteacher’s legal duties and any evidence that was presented to the governing board in relation to the decision to exclude – the part about taking account of evidence has been added to this part of the guidance.

[Clarification] The following information about the remits of bodies that deal with discrimination is clarified in the most up-to-date guidance:

  • First-tier tribunal – handles discrimination based on SEND
  • County Court – handles all other forms of discrimination

6.3 The governing board’s duty to notify people after its consideration of reinstatement

[New] Notices to parents confirming details of where their application for an independent review panel should be sent and should make it clear that parents are entitled to bring a friend to the review.

[New] The following sources have been added to the information that should be included in the letter to parents notifying them of the decision to uphold an exclusion:

  • ACE Education (http://www.ace-ed.org.uk/) and their advice line service on 03000 115 142 on Monday to Wednesday from 10:00am to 1:00pm during term time
  • The Information Advice & Support Services Network (formerly known as a the local parent partnership)
  • The National Autistic Society (NAS) School Exclusion Service (England) (0808 800 4002 or schoolexclusions@nas.org.uk
  • Independent Parental Special Education Advice (https://www.ipsea.org.uk)

 

Section 7 – The governing board’s duty to remove a permanently excluded pupil’s name from the school register

[Update] Where an application for an independent review panel has been made within 15 school days, the school must wait until the review has been determined, or abandoned, and the governing board has completed any reconsideration that the panel has recommended or directed it to carry out, before removing a pupil’s name from the register – this has been updated from the 2012 version to include the information about waiting until the board has completed reconsideration.

[New] Where a pupil’s name is to be deleted from the school admissions register because of a permanent exclusion, the school must make a return to the LA. The return must include all the particulars which were entered in the admission register, the address of any parent with whom the pupil normally resides, and the grounds upon which their name is to be deleted from the admissions register (i.e. permanent exclusion). This return must be made as soon as the grounds for deletion are met and no later than the deletion of the pupil’s name.

 

Section 8 – The LA’s/academy trust’s duty to arrange an independent review panel

8.2 Appointing panel members

[Clarification] Under what the constitution of an independent review panel must be, it is clarified that current or former school governors include members of PRU management committees and directors of academy trusts.

[Update] A person may not serve as a member of an independent review panel if they have, or at any time have had, any connection with the governing board.

8.3 Appointing a clerk and the clerk’s role

[Clarification] The clerk should not have served as clerk to the governing board in the meeting at which the decision was made not to reinstate the pupil – the 2012 guidance did not make it clear which meeting was being referred to.

[New] The clerk should inform the parents of their right to bring a friend or representative to the hearing.

[Update] Pupils may appear as witnesses if they do so voluntarily, and, if they are under 18, with their parents’ consent – the age of the pupil was not stipulated in the 2012 version.  

[New] Where an excluding headteacher has left the school, the panel may use its discretion in deciding whether to also invite this person to make representations.

[Clarification] The clerk should notify the panel where requested documents have not been provided so that the panel can make a decision on whether to adjourn the hearing to allow for the documents to be provided – the 2012 version did not make clear the reason for adjourning the hearing, i.e. to allow for documents to be provided.

8.5 Appointing a SEN expert

[New] The SEN expert for an independent review panel must be someone who has expertise and experience of SEND considered by the LA/academy trust as appropriate to perform the functions specified in the legislation.

 

Section 9 – The duties of independent review panel members, the clerk and the SEN expert in the conduct of an independent review panel

[Clarification] Panels 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, this means that the panel should accept that something happened if it is more likely that it happened than that it did not – the 2012 guidance did not clarify what beyond reasonable doubt means.

[Removed] Academy trusts are no longer listed in the people or organisations that the review panel’s decision is binding on.

[Update] If a panel directs a governing board to reconsider reinstatement, it may order the LA to make an adjustment to the school’s budget or (in the case of an academy) the academy trust to make an equivalent payment to the LA in whose area the school is located, unless within 10 schools days of receiving notices of the panel’s decision, the governing board decides to reinstate the pupil.

[Update] The panel may adjourn on more than one occasion, if necessary; however, consideration must be given to the effect of adjournment on the parties to the review, the excluded pupil and their parents and any victims – consideration to parents has been added here.

[New] The panel must always make one of three decisions:

  • To uphold the governing board’s decision
  • To recommend reconsideration
  • To quash the decision and direct reconsideration

Where parents are not seeking reinstatement for their child, this fact should be acknowledged by the panel, but it should not affect the conduct of the panel or its decision. Recording of the panel’s findings on a child’s educational record and an acknowledgement by the governing board that it would be appropriate for it to offer to reinstate the pupil are both potential outcomes in these circumstances.

[Update] The independent review panel’s decision is binding on the pupil, their parents, the governing board, the headteacher and the LA – the 2012 version also stated the panel’s decision is binding on the academy trust, this has been removed.

[New] In the event that a panel cannot continue because it no longer has representations from each of the three categories of members required, it should, having regard to the particular circumstances and the effect on the parties, victim, and pupil/parent, adjourn to allow reasonable time for enough missing members to become available.

[New] The panel’s decision should not be influenced by any stated intention of the parents or pupil not to return to the school. The focus of the panel’s decision is whether there are sufficient grounds for them to direct or recommend that the governing board reconsider its decision to uphold the exclusion.

[New] All decisions of a governing board must be made in accordance with public law. Panels are expected to understand the legislation that is relevant to exclusions and the legal principles that apply. Headteachers and governing board members of panels are likely to have first-hand experience of the education context that may be relevant to considerations about whether or not a decision was reasonable in the circumstances.

[Removed] Mention of the headteacher has been removed under guidance for testing the legality of a decision to not reinstate an excluded pupil. This point now asks only if the governing board acted outside the scope of its legal powers in deciding that the pupil should not be reinstated.

[New] Under guidance for a panel testing the rationality of a decision made by a governing board to not reinstate a pupil, a new point has been included which asks if the governing board relied on irrelevant points or failed to take account of all relevant points when making their decision.

[Clarification] An example has been given to illustrate a situation where the criteria to quash a decision has not been met but there is evidence or procedural flaws which the panel believe justify a reconsideration of the governing board’s decision. The example is where new evidence is presented at the review hearing which was not available to the governing board at the time of the hearing.

[Removed] The only exception to the panel ordering a readjustment made to the school’s budget is where a school does not have a delegated or separate budget from the LA from which the adjustment can be made.

[Removed] The panel does not have to reconvene to issue the order for adjustment.

[Update] If the panel upholds the governing board’s decision, the clerk should immediately report this to the LA as well as notifying the parents and governing board – the requirement to notify the parents and governing board is not stipulated in the 2012 version.

 

Section 10 – The governing board’s duty to reconsider reinstatement following a review

[New] 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.

[Clarification] The panel must order an adjustment to be made to the school’s budget for this adjustment to take place – this was not specified in the 2012 guidance.

[Update] If the governing board offers to reinstate the pupil within the specified timescale but this is declined by the parents, no budget adjustment or payment can be made – in the 2012 guidance it only mentions that no budget adjustment can be made.

[Clarification] The clerk must also note, where a pupil is not reinstated following a direction to reconsider, the exclusion does not count towards the rule that an admission authority may refuse to admit a child who has been excluded twice; or in the case of a community or voluntary controlled school, the governing board may appeal against the decision of the LA as the admission authority to admit the child – the 2012 guidance did not state that this was the clerk’s responsibility.

[New] A new subsection titled ‘Statutory guidance on the governing board’s duty to reconsider reinstatement following a review’ has been added.

[New] There is no requirement on governing board’s to seek further representations from other parties or to invite them to a reconsideration meeting. The governing board is not prevented from taking into account other matters that it considers relevant; however, it should take care to ensure that any additional information does not make the decision unlawful, e.g. where new evidence is presented or information is considered that is irrelevant to the decision at hand.

[New] The governing board should ensure that clear minutes are taken of reconsideration meetings, and these should be made available to all parties on request. 

[New] The governing board should ask any parties in attendance to withdraw before making a decision. If a clerk is present, they may stay to help the board by reference to their notes of the meeting and with the wording of the decision letter.

[New] The governing board should note the outcome of its consideration on the pupil’s educational record, along with copies of any documentation for future reference.

[New] The governing board should base its reconsideration on the presumption that a pupil will return to school if reinstated, regardless of any stated intentions by the parents or pupil. If an offer of reinstatement from the governing board is turned down by the parents, this should be recorded on the pupil’s educational record. The governing board’s decision should demonstrate how they have addressed the concerns raised by the independent review panel; this should be communicated in standard English for all parties to understand.

 

Section 11 – The LA’s role in overseeing the financial readjustment/payment

[New] An LA cannot require a maintained school or academy to make any additional payments following a permanent exclusion, other than the budget share deductions set out in regulations or the payments which an academy has to make under its funding agreement.

[Clarification] Clarified the circumstances under which the LA is responsible for adjusting the budget share for maintained schools and PRUs with delegated budgets. This happens if a pupil is permanently excluded, so the funding follows the pupil. The process and requirements are set out in the School and Early Years Finance (England) Regulations 2017.

[New] An LA may ask an academy trust to enter into an arrangement for the transfer of funding for a pupil who has been permanently excluded, on the same basis as if the academy were a maintained school. The trust may be obliged under its funding agreement to comply with such a request.

[New] If a review panel has ordered a financial adjustment, the LA will be responsible for reducing the budget share for the excluding school by a further £4,000. If the excluding school is an academy, the trust must pay £4,000 to the LA.

[New] If a review panel has made a financial adjustment order and the excluded pupil is given a place at another school, including a PRU, (‘the admitting school’), the LA may, if it chooses, pass on any or all of the amount of the financial adjustment (i.e. up to £4,000) to the admitting school.

[New] The LA will be responsible for the budget share for maintained schools and PRUs with delegated budgets in circumstances where a panel has ordered a financial adjustment.

 

[New] Annex B – A non-statutory guide for headteachers

This annex is new to the 2017 guidance and offers non-statutory guidance outlining the exclusion process for headteachers, academy principals and teachers in charge of PRUs, to help schools through the process and ensure they have sufficient procedures in place.

The annex outlines what headteachers must and should do in relation to the different aspects of the exclusion process, these are:

  • Early intervention – which includes establishing a behavioural policy and having a clear process in place for exclusions.
  • Taking the decision – which includes the headteacher understanding that they cannot delegate the responsibility of making the decision to exclude and informing parents of the exclusion.
  • The governing board’s consideration of an exclusion decision – which includes asking the chair of the governing board if there is a clear process for considering exclusions.
  • The independent review panel – which includes the governing board’s responsibility to reconsider the exclusion if directed to do so by the panel.
  • Post-exclusion action – which includes removing a pupil from the school roll at the appropriate time.

The annex also includes links to where schools can look for further sources of information.

 

[New] Annex C – A guide for parents/carers

This annex is new to the 2017 guidance and offers non-statutory guidance to parents which aims to support their understanding of the exclusion process.

It includes a list of questions that parents may have about the exclusion process, e.g. “Can I question the decision to exclude my child?”, and offers answers to these questions alongside links to additional information for parents.

 

Next steps

When the DfE released this update, they stated that the changes aim to provide clarity and do not change the requirements on schools; however, schools should ensure that they review their policies and procedures relating to exclusions by 1 September 2017 when this guidance comes into effect.

 

Bibliography

DfE (2017) ‘Exclusion from maintained schools, academies and pupil referral units in England’

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