What’s new with exclusion guidance?

Updated guidance

The Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement guidance (the “Exclusion Guidance”) was updated again in September 2023. This sets out the framework which applies to exclusions and suspensions by maintained schools and academies in England.

General

Generally, a permanent exclusion decision or a suspension (i.e. exclusion for a fixed period of school days) occurs if a headteacher determines there has been:

• 1. a serious breach, or persistent breaches of the school’s policies; and
• 2. allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

Exclusions or suspensions are often implemented as a result of physical assault; persistent verbal abuse, threatening behaviour or racism; use, or threatened use of an offensive weapon; possession or consumption of illicit drugs; or discrimination against others as a result of their protected characteristics (for example, sexual orientation, gender reassignment or disability).

What is new in the September 2023 version?

Part two of the Exclusion Guidance now includes:

• 1. the provision of further guidance on a headteacher’s ability to cancel an exclusion (known as withdrawing or rescinding an exclusion); and
• 2. the ability for a governing body’s reinstatement meeting or the independent review panel’s appeal meeting to be held virtually, if certain criteria is satisfied.

Cancelling an Exclusion

The ability for a headteacher to cancel an exclusion before the school’s governing body has had the opportunity to consider the exclusion only applies in England. It could be applied where new evidence comes to light after the headteacher has decided to exclude the student.

If the exclusion is cancelled, the requirement for the governing board to consider reinstatement falls away. The student’s parent(s)/guardian(s) should be offered the opportunity to meet with the headteacher to discuss the circumstances that resulted in the exclusion being cancelled.

The ability to cancel an exclusion is not available if a pupil has been excluded for more than 45 school days in a school year (or if they will have been so by the time that the cancellation takes effect).

New Practices

The impact of the Covid-19 pandemic resulted in radical changes to how exclusion meetings could take place. In the context of an exclusion from school, a governing body or independent review panel could meet remotely. This was formerly a temporary change, but it has now been made permanent, given that often in practice it is more convenient for parents/guardians to meet remotely.

With regard to the format of the governing body’s review meeting or the independent review panel hearing, the Exclusion Guidance confirms that face to face meetings should always be encouraged and the availability of virtual meetings does not make it the default option. However, if a virtual meeting is to be held, the parties should ensure that they understand the proceedings and how to raise any issues.

Even though there is always the risk of technical difficulties with remote meetings, as a number of tribunal and court processes are now also held remotely, other forums also seem to recognise the benefits of remote participation, which includes a reduction in travel or waiting times.

At present the equivalent Exclusion Guidance that applies to schools in Wales has not been updated to permit a governing body’s disciplinary meeting or an independent appeal panel to be convened virtually. However, a local authority in Wales will often agree to enable a hearing to take place remotely so that matters can be dealt with expeditiously within statutory timescales or for the ease of those participating.

How can we help?

Our team of lawyers are recognised as experts in the industry and provide pragmatic and commercial advice for every situation. We often advise both schools in England and Wales on the practical and legal implications of an exclusion or suspension decisions in various circumstances. In addition, we frequently represent schools/academies at independent review panels in England, or independent appeal panels in Wales, particularly in relation to drug matters or serious violence.

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