Permanent exclusion checklist for schools in Wales

Background

A learner may be excluded from school for a wide variety of reasons. Some examples may include conduct such as:

• serious actual or threatened violence;
• sexual abuse or assault;
• possession or consumption of an illegal substance; or
• use or threatened use of an offensive weapon.

This article addresses the process that must be followed from the date that the student is excluded from school.

When can a decision to exclude apply?

A decision to exclude a learner should only follow:

1. a serious breach of a school’s policy; and
2. if allowing the learner to remain would seriously harm the education of welfare of the learner or others in the school.

Only the headteacher can exclude a learner (or in their absence, the most senior teacher in the school). There are two forms of exclusion: (1) fixed-term; or (2) permanent.

The headteacher should have regard to a range of factors before reaching their decision, including, the learner’s own view of the circumstances (and whether there is a possibility of coercion or provocation), the evidence available, and whether there are suitable alternatives to exclusion.

If the headteacher is satisfied, on the balance of probabilities that a learner has committed a disciplinary offence and needs to be removed from the school site, and no other alternatives to exclusion are appropriate, then a formal exclusion must follow.

What process must be followed?

Whenever a learner is sent home for disciplinary reasons, the headteacher must notify the learner’s parent(s)/guardian(s) of the length of the exclusion and ensure that work is sent home or alternative provision is made. This should be done by a letter which includes, amongst other things, the reasons for the exclusion and, in certain circumstances, the learner’s ability to request that a disciplinary committee be held to determine whether the exclusion should be overturned.

A governors disciplinary committee (made up of school governors) is the first stage of the appeals process. The committees’ only role is to review the exclusion imposed by the headteacher and the committee does not have the power to increase the severity of an exclusion (i.e. to substitute a fixed-term exclusion with permanent exclusion). The learner can attend and participate in the meeting with their parent(s)/guardian(s).

The discipline committee can uphold an exclusion, or direct the learner’s reinstatement, either immediately or by a certain date. The decision, with reasons, must be communicated to the parent(s)/guardian(s) within one school day. If the exclusion is upheld, the learner must be informed of the ability to appeal to an independent appeal panel (“IAP”).

If an appeal is lodged, an IAP must take place within 15 school days from that date. The IAP is composed of: (1) the chair of the IAP, who is a lay person with no personal experience in school management; (2) an education practitioner, who is often a headteacher of an unrelated school; and (3) a school governor from an unrelated school.

The learner is entitled to attend the IAP with their parent or representatives, as is the school. Sufficient time must be allocated to allow each party to put forward their case. The IAP must consider the evidence before them to consider whether, on the balance of probabilities, the learner had carried out the alleged acts. When doing so, the IAP must determine if the exclusion should be upheld or overturned so that the child should be reinstated.

If an exclusion is upheld, the parent/guardian may wish to challenge the decision further. This could be via a complaint to the Public Services Ombudsman for Wales or the Welsh Ministers, or via a claim for judicial review. These options fall outside the scope of this note, but a summary of judicial review can be accessed here.

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Please get in touch with either Al Hussain or Trish D’Souza of our Commercial Disputes Resolution team if you require our assistance.