1. School Exclusions
Exclusions from maintained schools, academies and pupil referral units in England (Sept 2017)

2. Aims
To introduce governors and clerks to the statutory requirements relating to their roles in school exclusion.
To outline the process of a school exclusion and its review, for governors appointed to pupil discipline sub-committees and panels.

3. The Legislation
The Education Act 2002, as amended by the Education Act 2011;
The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012;
The Education and Inspections Act 2006; and
The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007.

4. Exclusion Statistics (2016-17 published July 18)
The rate of permanent exclusions increased from 0.08% to 0.1% of pupil enrolments in (from 6,685 to 7,720 exclusions).  There has been a rising trend since % of permanent exclusions occurred in secondary schools.
The rate and number of fixed period exclusions has also increased, from 4.29% to 4.76% of pupil enrolments (from 339,360 to 381,865 exclusions).
Persistent disruptive behaviour is still the most common cause for exclusion, accounting for 35.7% of all permanent exclusions, and 28.4% of all fixed period exclusions.

5. Exclusion Statistics (2016-17 published July 18)
Boys were over three times more likely than girls to be permanently excluded.
Pupils with SEND accounted for around half of all exclusions. Those with SEND support were six times more likely to be permanently excluded than those with no SEND.
Pupils known to be eligible for Free School Meals were four times more likely to be permanently excluded than non-FSM.
Over half of the exclusions occured in Year 9 or above, with a quarter of all permanent exclusions being given to pupils aged 14.

6. Who can exclude a pupil? Only the Headteacher can exclude a pupil.
The statutory guidance states that the decision to permanently exclude 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.

7. The Headteacher’s duties
The Headteacher must notify the parents in writing of the exclusion and the reasons for it.
The Headteacher must without delay notify the governing body and the local authority of:
Any permanent exclusion
Any exclusion for a total of more than five school days in a term (or more than ten lunch times)
Any exclusion which would result in the pupil missing a public examination or national curriculum test

8. The Headteacher’s duties
The Headteacher must also notify the local authority and the governing board once per term of any other exclusions. All notifications must include the reason(s) for the exclusion and the duration of any fixed-period exclusion. For a permanent exclusion, if the pupil lives outside the local authority in which the school is located, the Headteacher must also notify the pupil’s ‘home authority’ of the exclusion and the reason(s) for it without delay.

9. The governing board’s duties:
It is the governing board’s responsibility to arrange suitable full time education for any pupil of compulsory school age who has been excluded for more than five schools days in a fixed period exclusion.
to start on or before the 6th day of the exclusion (Looked after children – this should start from the first full day)
For permanent exclusions, it is the local authority’s duty to arrange suitable full time education from the 6th day post-exclusion.

10. The board’s duty to review:
The board must also review the Headteacher’s decision to exclude a pupil, by meeting to consider that pupil’s reinstatement:
For all permanent exclusions
Fixed period exclusions - where the total number of excluded days for that pupil is more than 15 in that term
For any exclusion which would result in the pupil missing a public exam or a national curriculum test
This function is usually delegated to a sub-committee.

11. The board’s duty to review:
Total amount of fixed period exclusion is between 5 and 15 days in a term: The board must review the Headteacher’s decision and consider reinstatement only if the parents make representations.
Total amount of fixed period is less than 5 days in a term: Again if the parents make representations, the board must consider them - but it is not required to arrange a meeting with the parents and it cannot direct reinstatement of a pupil.
See the Exclusion Flow Chart (Annex A of the guidance)

12. The pupil discipline sub-committee:
Maintained schools: the board may delegate its functions relating to consideration of pupil exclusions to a sub-committee consisting of at least three governors. If an exclusion will result in missing an exam, and if it is not reasonable to convene a sub-committee in the time frame then the Chair can act alone to review the exclusion. NOTE the parents must still be invited to this meeting.
Academies: the board may delegate to a smaller sub-committee if the trust’s articles of association allows it. .

13. When must the sub-committee meet?
Within 15 days of receiving notice of the exclusion for:
Permanent exclusions
A fixed period exclusion bringing the total in that term to more than 15 days (including exclusions incurred at previous schools, if pupil has moved school in that term)
Within 50 days of receiving notice of the exclusion for fixed period exclusions of less than 15 days total in the term (ie where there will be a review of the decision because the parents have made representations.)

14. Who will be invited to the meeting?
The parents and (where they have requested) a friend and/or representative. The excluded pupil is also encouraged to attend the meeting.
The Headteacher
A representative of the local authority (maintained schools)
(Academies – parents may request an LA rep to observe)
Witnesses (where a witness is under 18, the board should first seek parental consent and should invite the parents to accompany their child to the meeting.)

15. In the run-up to the meeting:
The Headteacher notifies the governing board (probably via the chair or clerk) of the exclusion.
Sub-committee membership is confirmed.
The clerk invites all the parties to attend the meeting.
The documentation is circulated to all parties (the ‘PEX Pack’) – 5 school days in advance of the meeting.
The clerk liaises with the school to manage the arrangements for the meeting (consider accessibility).

16. The role of the clerk at the meeting
Clear minutes must be taken of the meeting - as a record of the evidence that was considered. These minutes should be made available to all parties on request. The clerk will remain with the governors during their deliberations, in case they wish to refer back to the notes taken. The clerk will also help the governors with the wording of the decision letter (various statutory elements required.)

17. The remit of the meeting
The remit of the meeting is to consider the reinstatement of the pupil: The sub-committee should consider whether the decision taken by the Headteacher to exclude was lawful, reasonable and procedurally fair, taking account of the Headteacher’s legal duties and any evidence that was presented in relation to the decision taken to exclude. The Equality Act 2010 should be taken into account at all times.

18. The remit of the meeting
The sub-committee must consider any representations made by or on behalf of
The parents
The Headteacher
The local authority (for maintained schools and PRUs)
When establishing the facts in relation to an exclusion, the governors must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ rather than the criminal standard of ‘beyond reasonable doubt’.

19. Some principles The sub-committee appoints a Chair.
There must not be a private meeting beforehand – the parents must have the opportunity to be present for the whole discussion (up to the governors’ deliberations when both the parents and the school withdraw).
The governors must take steps to ensure all parties will be able to participate and have their views properly heard. This is particularly important where pupils aged under 18 are speaking about their own exclusion or giving evidence.

20. Meeting agenda The Chair welcomes and makes the introductions
The Headteacher puts forward his/her case
All present are invited to ask questions of the Headteacher
The parents put forward their representations
All present are invited to ask questions of the parents
Witnesses are called to attend at the relevant time to give their evidence - and all present are invited to ask questions.

21. Meeting agenda (continued).
Summaries are invited from the Headteacher and the parents, but the parents must have the last word.
Everyone except the governors and clerk leave the meeting. The governors then make their considerations and reach their decision.

22. Things for the governors to consider:
Was the decision to exclude “lawful, reasonable and fair”?
Is the pupil’s behaviour a significant risk to the learning of other students, or to their emotional health or physical safety?
Has a thorough assessment of the pupil’s particular educational, physical and social needs been undertaken?
Further to above, have the appropriate actions been undertaken by the school – and in an appropriate timescale? Was appropriate support put in place?

23. More things to consider:
Are there clear and well publicised school/trust policies in place that underpin all the decision making?
Has the pupil been made aware at all stages of the likely consequences of his/ her behaviour?
Is the pupil looked after?
Is the pupil due to sit public examinations (and if so what arrangements will be made for this to happen if the governors decline to reinstate the pupil)?

24. And….
Is the decision the Headteacher has taken to exclude a proportionate response?

25. The governors’ decision
Following their considerations, the governors can either:
Decline to reinstate the pupil or
Direct reinstatement of the pupil - either immediately or on a particular date
The parents and the local authority (and home authority where relevant) must be notified of the decision in writing ‘without delay’.

26. The decision letter
The governors should set out the reasons for their decision in sufficient detail for all parties to understand why the decision was made.
If the decision is to decline to reinstate a permanently excluded pupil, the letter must also include notice of the parents’ right to ask for the decision to be reviewed by an independent review panel.
There are lots of other statutory clauses to go in this letter. The clerk needs to ensure these are all included.

27. Statutory contents of letter:
If the board declines to re-instate, the letter must contain:
The fact that the exclusion is permanent
Notice of the parents’ right to ask for the decision to be reviewed by an Independent Review Panel.
The date by which an application for a review must be made (15 school days from 2nd working day after posting)
Where and to whom an application for review (and any written evidence) should be submitted. This is normally the clerk to the IRP.

28. Statutory contents of letter:
That the application should set out the grounds on which it is being made, and that, where appropriate, should include reference to how the pupil’s SEN are considered to be relevant to the exclusion.
That regardless of whether the pupil has recognised SEN, parents have the right to require the local authority / trust to appoint an SEN expert at no cost to themselves to advise the review panel. The letter also to include details of the remit of this role, and to advise that parents need to make clear in their application if they wish for a SEN expert to be appointed.

29. Statutory contents of letter:
That parents may, at their own expense, appoint someone to make written and/or oral representations to the panel and that they are entitled to bring a friend to the review.
That [in addition to the right to an IRP], if parents believe that there has been unlawful discrimination in relation to the exclusion then they may make a claim under the Equality Act 2010 to the First-tier Tribunal (Special Educational Needs and Disability) in the case of disability discrimination, or the County Court, in the case of other forms of discrimination.

30. Statutory contents of letter:
That a claim of discrimination under the Equality Act 2010 made under these routes should be lodged within six months of the date on which the discrimination is alleged to have taken place (e.g. the day on which the pupil was excluded). NOTE – school to retain records for 6 months in case of claim.
The parents should be pointed to various sources of free and impartial information to enable them to make an informed decision, and link to guidance on making a claim for discrimination. (See Para 82 for the list)

31. School records
It is the governing board’s duty to remove a permanently excluded pupil’s name from the register.
If an application for an Independent Review is made, this should not happen until the outcome of the review is clear.
In the event of a subsequent discrimination claim, the First-tier tribunal or County Court has the power to direct that the pupil be reinstated.

32. Independent Review Panel
Maintained schools – it’s the local authority’s responsibility to arrange the panel.
Academies – it is the trust’s responsibility to arrange the panel.
The Clerk to the Panel cannot be the same as the person who clerked the governor meeting.
The review is of the Governing Board’s decision to not reinstate the permanently excluded pupil.

33. Independent Review Panel
Any application for an IRP arriving outside the legal time frame must be rejected.
Parents may request a review whether or not they attended the governors’ decision meeting (or made their representations in writing)
The review must begin within 15 school days of the day on which the application for review was made.
Any parallel claim of discrimination (First-tier tribunal or County Court) does not delay the review.

34. Who is invited to attend the IRP?
3 or 5 panel members: - 1 lay person to chair - 1 (2) school governor(s) - 1 (2) persons who are/have been Headteachers (5 yrs) (for eligibility & disqualifications see paras 98-99)
The parents (plus possibly representative and/or friend)
The Headteacher, chair of the original meeting & LA (for maintained schools) – all may have representation.
A SEN expert (if requested by the parents)
Witnesses (& additional evidence can be heard if relevant)
98. The local authority/academy trust must constitute the panel with either three or five members (as decided by the local authority/academy trust) representing each of the three categories below. A five member panel must be constituted with two members from each of the categories of school governors and head teachers.
A lay member to chair the panel who has not worked in any school in a paid capacity, disregarding any experience as a school governor or volunteer.
Current or former school governors (including members of PRU management committees and directors of academy trusts) who have served as a governor for at least 12 consecutive months in the last five years, provided they have not been teachers or head teachers during that time.
Head teachers or individuals who have been a head teacher within the last five years.
99. A person may not serve as a member of a review panel if they:
are a member/director of the local authority/academy trust or governing board of the excluding school;
are the head teacher of the excluding school or anyone who has held this position in the last five years;
are an employee of the local authority/academy trust, or the governing board, of the excluding school (unless they are employed as a head teacher at another school);
have, or at any time have had, any connection with the local authority/academy trust, school, governing board, parents or pupil, or the incident leading to the exclusion, which might reasonably be taken to raise doubts about their impartiality (though an individual must not be taken to have such a connection simply because they are employed by the local authority/academy trust as a head teacher at another school); or
have not had the required training within the last two years (see paragraph 124).

35. Independent Review Panel
Following its review, the panel can decide to
Uphold the governing board’s decision
Recommend that the governing board considers reinstatement
Quash the decision and direct that the governing board reconsiders reinstatement.
If the governors are directed to reconsider the decision and do not consequently reinstate the pupil, the IRP will order the school to make a payment of £4000 to the local authority towards the cost of alternative provision.
159. When considering the governing board’s decision in light of the principles applicable in an application for judicial review, the panel should apply the following tests:
Illegality – did the governing board act outside the scope of its legal powers in deciding that the pupil should not be reinstated?
Irrationality – did the governing board rely on irrelevant points, fail to take account of all relevant points, or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made it?
Procedural impropriety – was the governing board’s consideration so procedurally unfair or flawed that justice was clearly not done?
160. Procedural impropriety means not simply a breach of minor points of procedure but something more substantive, that has a significant impact on the quality of the decision-making process. This will be a judgement for the panel to make, but the following are examples of the types of things that could give rise to procedural impropriety: bias; failing to notify parents of their right to make representations; the governing board making a decision without having given parents an opportunity to make representations; failing to give reasons for a decision; or being a judge in your own cause (for example, if the head teacher who took the decision to exclude were also to vote on whether the pupil should be reinstated).
161. Where the criteria for quashing a decision have not been met, the panel should consider whether it would be appropriate to recommend that a governing board reconsiders its decision not to reinstate the pupil. This should not be the default option, but should be used where evidence or procedural flaws have been identified that do not meet the criteria for quashing the decision, but which the panel believe justify a reconsideration of the governing board’s decision. This could include when new evidence presented at the review hearing was not available to the governing board at the time of its decision.
162. In all other cases the panel should uphold the governing board’s decision.

36. Governing board’s reconsideration
Where the panel directs or recommends reconsideration, the governing board must 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; 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.

37. Governing board’s reconsideration
The reconsideration provides an opportunity for the governing board to look afresh at the question of reinstating the pupil, in light of the findings of the independent review panel.
There is no requirement to seek further representations from other parties or to invite them to the reconsideration meeting
The governing board’s decision should demonstrate how they have addressed the concerns raised by the independent review panel.

38. Governing board’s reconsideration
The board must inform the Headteacher, parents and local authority of its reconsideration decision.