The Department for Education (DofE) has issued the following guidance:
Exclusion from maintained schools, academies and pupil referral units in England
The document contains two non-statutory guides summarising key elements of the exclusions process: one for head teachers and the other for parents/carers (Annexes B and C respectively). These guides include coverage of how Special Educational Needs and disabilities might be relevant to a school’s decision-making. If your child or young person has SEND, the text relating directly to this begins on page 58 of the Parent/Carer Guide ( Annex C) and mostly covers discrimination.
SEND and Exclusion
In July 2017 the government released new exclusions guidance to clarify areas in the previous guidance of 2012. Recent reports and statistics indicate that children with SEND are much more likely to be excluded than children without SEND. The law around exclusions can seem complicated and the implications of going along with informal (illegal) exclusions affect children’s and young people’s rights.
Some key points:
There are only two types of exclusion which are lawful: permanent and fixed-term. Only the head teacher of a school (or acting head teacher) can exclude a pupil.
This means that legally a child should be in school full-time or they are excluded from school.
A child may not be excluded for a reason relating to their special educational needs or disabilities (SEND).
What is an unlawful exclusion and why does it matter?
Informal’ or ‘unofficial’ exclusions, such as sending a pupil home ‘to cool off’ are unlawful, regardless of whether they occur with the agreement of parents or carers. Any exclusion of a pupil, even for short periods of time, must be formally recorded.
It’s not legal to ‘informally’ exclude children.
Isn’t an informal exclusion better than a formal exclusion?
No. Whilst it may seem better to do this informally as there may not be a mark on the child’s record… it comes with pitfalls. Informal exclusions are unlawful for a reason.
Schools unlawfully excluding children are not fulfilling their obligation to provide a full-time education for your child. In addition, you lose your right to make representations against the headteacher’s decision, and are unable to use exclusions as evidence that your child needs more or different support in school.
An unlawful, illegal or informal exclusion will not trigger the right for the child to receive alternative education which must be provided by the school from the 6th day of a fixed term exclusion in excess of 5 school days.
Your child has a right to an education
The best way to protect your child’s rights is to work with the school within the law.
What is a lawful exclusion?
Headteachers can exclude your child if they misbehave in or outside school. Only headteachers or the acting headteacher can exclude a child. Your child’s school should let you know about an exclusion as soon as possible. The school must follow up with a letter telling you how long your child is excluded for, and why.
You should also be told how to challenge the exclusion if you want to.
Exclusions can start on the same day, but the school cannot insist that you collect your child straight away.
For the first 5 school days of an exclusion, it is your responsibility to make sure your child isn’t in a public place during normal school hours unless there is a good reason.
Alternative education and exclusion
The school or local council must tell you about any alternative education they arrange. It’s your responsibility to make sure your child attends.
Exclusion from school - an information guide for parents and carers (opens a pdf)
Illegal Exclusions
Sadly, there is nationally a high incidence of children and young people with special educational needs being excluded.
Common examples of illegal exclusions:
- The teaching assistant that supports the pupil is not available and the school says that they cannot support the child.
- The pupil is sent home to ‘cool off’ or because they are distressed.
- The pupil is sent home for lunchtime or part of a school day or particular lesson as they ‘cannot manage’.
- The pupil is asked to stay at home on the day/part of day of a school trip or other school event.
- The pupil is sent home for something the parents have, or haven’t, done.
- Refusal to take a pupil on a school trip is an exclusion.
These all count as exclusions. It’s illegal to do any of the above without following the law on formal processes.
Behaviour policies and SEND
A permanent exclusion can only be for reason of a serious breach or persistent breaches of the school's behaviour policy and when allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in school.
Both these conditions must be met.
The role of Reasonable Adjustments
If your child has a disability, are there any reasonable adjustments that the school should have made that may have prevented the incident(s) that led to the exclusion?
Reasonable adjustments can and must include reviewing how school policies are applied where there is SEND.
Who should read this guidance?
This guidance details the legal responsibilities for those who exclude students from educational settings, including:
- headteachers
- local authorities
- governing bodies
- academy trusts
- independent review panel members
- independent review panel clerks
- special educational needs experts
It governs the exclusion of pupils from:
- local-authority-maintained schools
- academies and free schools
- pupil referral units
Statutory guidance sets out what schools and local authorities must do to comply with the law. Schools and local authorities should follow the guidance unless they have a very good reason not to.
It would be helpful to read this guidance alongside:
School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012
Contact us about school exclusion
If you would like to speak to someone about school exclusion you can contact:
Adrian Bannister
Exclusions and Reintegration Officer, Achieving for Children
Email adrian.bannister@achievingforchildren.org.uk Phone 020 8547 5253