A guide to the exclusions procedure

The key elements of the, often either misunderstood or not properly implemented, exclusions procedure for maintained schools and academies.

In our work with schools and academies, we encounter situations where exclusions procedure is not correctly implemented or is simply misunderstood. This article summarises the key elements of the exclusions procedure for maintained schools and academies under the Education Act 2002 (the "Act") and the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (the "Regulations"). The procedure for pupil referral units and alternative provision academies is different and so not covered.

In this note, references to "governing body" include the governing body of a maintained school and the board of directors/trustees of an academy trust, as applicable.

Key elements of the exclusions procedure

Stage 1: Head teacher decision

The head teacher decides whether to exclude a pupil for a fixed period or permanently and, when establishing any fact, decides whether that fact is established on the balance of probabilities.

A pupil may not be excluded for one or more fixed periods if the result would be to exclude the pupil for more than 45 days in any school year.

It is key that any decision takes proper account of any possible disability discrimination and the duty to make reasonable adjustments.

Stage 2: Head teacher informs

Without delay, the head teacher must inform the parent (or pupil, if aged 18) of:

• the period of exclusion and the reasons for it;
• that they (and the pupil, if aged under 18) may make representations to the governing body; and
• the procedure for making representations.

Where the exclusion is permanent or the pupil will be excluded for more than 5 days in any term or miss a public exam or National Curriculum test, the head teacher must also inform the governing body and local authority of the period of the exclusion (with reasons) and inform the parent (or pupil, if aged 18) that they may attend the governing body and be represented and accompanied by a friend.

Stage 3: Governing body decision

Governing body informed by head teacher

Where the head teacher has informed the governing body of

• a permanent exclusion,
• an exclusion where, as a result, the pupil would be excluded for a total of more than 15 school days in any term or would lose the opportunity to take a public exam or a National Curriculum Test or
• an exclusion where, as a result, the pupil would be excluded for a total of more than 5 school days in any term and the parent (or pupil, if aged 18) makes representations to the governing body,

the governing body must decide whether the pupil should be reinstated and, if so, whether immediately or by a particular date and do so:

• within 15 school days of a permanent exclusion or an exclusion for a fixed period where the pupil will be excluded for more than 15 school days in any term or miss a public exam or National Curriculum test; or
• within 50 school days of an exclusion for a fixed period where the pupil will be excluded for more than 5 (but not more than 15) school days in any term and the parent (or pupil, if aged 18) has made representations to the governing body.

When making its decision, the governing body must:

• consider the pupil's interests and circumstances;
• have regard to the interests of other pupils and persons working at the maintained school or academy;
• consider any representations made to it by or on behalf of the parent (or pupil, if aged 18), the head teacher or (for a maintained school) the local authority; and
• take reasonable steps to arrange a meeting to consider the exclusion when the head teacher, the parent (or pupil, if aged 18), the local authority (in the case of a maintained school) and, if requested by the parent (or pupil, if aged 18) at an academy, their representative or friend and a representative of the local authority are able to attend and make representations.

When establishing any fact, the governing body must decide whether that fact is established on the balance of probabilities.

Where the pupil will miss a public exam or National Curriculum test, the governing body must, so far as is reasonably practicable, decide if the pupil should be reinstated before the date of the exam or test.

Governing body not informed by head teacher

Where the head teacher is not required to inform the governing body of the exclusion (with reasons) - because the pupil has been excluded for less than 5 days in any term and will not miss a public exam or National Curriculum test - but the governing body receives representations from the parent (or pupil, if aged 18), the governing body must consider those representations.

Stage 4: Reinstatement

Pupil reinstated

If the governing body decides that the pupil should be reinstated, it must (without delay):

• direct the head teacher to reinstate the pupil; and
• inform the parent (or pupil, if aged 18) and the local authority of itsdecision (with the reasons) in writing.

The head teacher must comply with the direction by the governing body.

Pupil not reinstated

If the governing body decides not to reinstate the pupil, it must (without delay) inform the parent (or pupil, if aged 18), head teacher and local authority of its decision (with the reasons) in writing.

Where the pupil is permanently excluded, the governing body must also confirm to the parent (or pupil, if aged 18) in writing:

• that the exclusion is permanent;
• that the parent (or pupil, if aged 18) may apply for the decision of the governing body to be reviewed by a review panel and may require the local authority (in the case of a maintained school) or the academy trust (in the case of an academy) to appoint a special educational needs ("SEN") expert to advise the panel);
• the role of the SEN expert in relation to the review;
• the procedure for applying for a review;
• that the parent (or pupil, if aged 18) may appoint someone to represent them at the review; and
• that the parent (or pupil, if aged 18) may claim under the Equality Act 2010 (with the time period for a claim) where they believe there has been unlawful discrimination.

Stage 5: Review panel

Arrangements

Where the parent (or pupil, if aged 18) applies for a review within 15 school days of receiving notice of the governing body decision, the local authority (in the case of a maintained school) or the academy trust (in the case of an academy) must:

• make arrangements for the review of the governing body decision; and
• if requested by the parent (or pupil, if aged 18) when they apply for a review, appoint an SEN expert to advise impartially on how SEN may be relevant to the exclusion.

Constitution

The review panel must consist of 3 or 5 members appointed by the local authority (for a maintained school) or the academy trust (for an academy) from:

• persons who have never worked in a school in a paid capacity ("Group 1");
• head teachers (or persons who have held that position during the last 5 years) ("Group 2"); and
• persons who are or have been a governor of a maintained school, a member of a pupil referral unit management committee or a trustee/director of an academy trust  where they have served in that capacity for at least 12 consecutive months within the last 5 years and have not been a teacher or a head teacher in any school in the last 5 years ("Group 3").

For a panel of 3 members, one member is drawn from each Group.

For a panel of 5 members, one member is drawn from Group 1 and two members are drawn from each of Group 2 and Group 3.

The panel may not include:

• any member or director of the local authority or the governing body (in the case of a maintained school) or the academy trust (in the case of an academy);
• the head teacher of the maintained school or academy in question (or any person who has held that position within the last 5 years);
• an employee of the local authority or the governing body (in the case of a maintained school) or the academy trust (in the case of an academy) other than the head teacher of another maintained school or academy); or
• anyone who has had any connection with the parent (or pupil, if aged 18), the pupil, the incident leading to the exclusion or the maintained school, local authority or governing body (in the case of a maintained school), orthe academy or academy trust (in the case of an academy) which might reasonably be taken to raise doubts about that person's impartiality.

Training

During the last 2 years, each member of the review panel must have received sufficient information and instruction to know and understand:

• the requirements of legislation and statutory guidance governing exclusions;
• the role of the chair of a review panel;
• the role of the clerk to a review panel;
• the relevant effect of the Equality Act 2010;
• the requirement to act compatibly with human rights under the Human Rights Act 1998 and the Convention for the Protection of Human Rights and Fundamental Freedoms; and
• the need to observe procedural fairness and the rules of natural justice.

Clerking

The local authority (for a maintained school) or the academy trust (for an academy) may appoint a clerk to advise the review panel and the parties to the review on the procedure for the review and the law and statutory guidance relating to exclusions.

The clerk must have received sufficient information and instruction, during the last 2 years, to meet the above training requirements for panel members.

The clerk must make reasonable efforts to provide all parties with copies of relevant documents at least 5 school days before the start of the review.

Decision

The review panel may:

• uphold the decision of the governing body;
• recommend that the governing body reconsiders the exclusion; or
• if it considers that the decision of the governing body was flawed in light of the principles applicable on application for judicial review, quash the decision of the governing body and direct them to reconsider the exclusion.

The review panel must consider the pupil's interests and circumstances and have regard to the interests of other pupils and persons working at the maintained school or academy.

When establishing any fact, the review panel must decide whether that fact is established on the balance of probabilities.

The decision of the review panel is binding on the parent (or pupil, if aged 18), the governing body, the head teacher and the local authority.

The review panel may direct the governing body to place a note on the pupil's educational record.

Stage 6: Reconsideration by governing body

Where the review panel

• recommends that the governing body reconsiders a decision not to reinstate a pupil who has been permanently excluded or
• quashes the governing body decision and directs the governing to reconsider the matter,

the governing body (within 10 school days of receiving notice of the review panel decision) must reconvene to reconsider the exclusion.

When establishing any fact, the governing body must decide whether that fact is established on the balance of probabilities.

The governing body must inform the parent (or pupil, if aged 18), the head teacher and the local authority of their reconsidered decision.

Where the panel quashed the governing body decision but the governing body reconsiders the exclusion and decides not to reinstate the pupil or the governing body fails to reconsider the exclusion within 10 school days of receiving notice of the review panel decision, the review panel may order the local authority (for a maintained school) to adjust the school's budget share by £4,000 or order the academy trust (in the case of an academy) to pay £4,000 to the local authority.

Closing remarks

Given the recent media spotlight on the high rate of exclusions, including the higher incidence of exclusion of disadvantaged and SEND pupils, it is more important than ever for schools and academies to follow the correct procedure when excluding a pupil, reviewing that exclusion and reconsidering the exclusion following a review panel decision. Given that the actions by a governing body following the decision of a review panel can have financial consequences for the school or academy, there is also a financial incentive for schools and academies to follow the correct procedure which cannot be overstated in the current financial climate.

If you would like to discuss any aspect of this article further, please contact Graham Shaw or any other member of the Education team on 0113 244 6100. You can also keep up to date by following Wrigleys Solicitors on LinkedIn. The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors