Menu
Having your child excluded from school is stressful. Unfortunately, it can often come as a surprise and parents can understandably be daunted by the prospect of having to either challenge an exclusion or secure a new school place for their child.
Education Law Experts have produced this guide in the hope that it will help parents understand the law relating to exclusions, the context and how to challenge them in appropriate circumstances.
Here are some statistics on school exclusions:
1. Exclusions and suspensions from schools in England are both on the increase
2. The most common reason for all exclusions and suspensions for 2022-2023 was persistent disruptive behaviour.
3. Boys are twice as likely as girls to be excluded or suspended.
4. Those in receipt of free school meals are 4 times more likely to be excluded or suspended than those without.
5. Approximately half of those excluded from schools have identified special educational needs.
6. Years 9 and 10 have the greatest numbers of exclusions.
There are two types of lawful school exclusion:
1. Permanent Exclusion – Is as it sounds; permanent.
2. Suspension (Fixed Term Exclusion) – This is a temporary exclusion. It must be for a specific period of time. A pupil may be suspended for one or more fixed periods (up to a maximum of 45 school days in a single academic year).
A permanent exclusion is only lawful if:
There are a number of things that schools should consider in reaching their decision on whether to exclude a child. These include:
Headteachers can reverse their own decision to exclude if it has not been reviewed by the governing board of the school. As soon as the governing body meets, they are considered to have reviewed the exclusion. The Head cannot reverse their own decision during the meeting for example.
Permanent exclusion should be a last resort. The Government’s guidance on exclusions stresses that schools should try and avoid permanent excluding those with special educational needs and disabilities. Despite this, roughly half of those excluded do have identified needs.
The process for excluding a child is primarily set out in statutory guidance (School suspensions and permanent exclusions – GOV.UK (www.gov.uk))
The written notification must include:
There is a process set out in statutory guidance which enables parents to challenge exclusions in most cases. The process is different depending on the type of exclusion.
A parent has the right to request that the school’s governing body consider overturning an exclusion or suspension if either:
If the exclusion is for 5 days or less, then a parent can still request that the governors consider your views on the suspension, but they cannot overturn the suspension itself.
Governors must review a Head’s decision to permanently exclude a child. Parents should be invited to this meeting, and it should take place within 15 school days.
Often, governors will uphold the decision to exclude. Where this happens, parents have a further right to challenge the exclusion to an independent review panel.
The governors must inform parents of their right to challenge the decision.
When challenging the decision to uphold the exclusion to an independent review panel, referred to as an ‘IRP’, parents can request that a special educational needs (SEN) expert attend the review if your child has SEN, or you think they have SEN but these have not yet been formally diagnosed. Parents can refer to this in their request for an independent review.
Top tips for an appeal to an IRP:
There are a number of things for parents to consider when they are challenging a permanent exclusion. Education Law Experts consider the top 5 tips to be:
1. Ensure that the governors are presented with all relevant information.
The role of an IRP is to consider whether the governors were right to uphold the decision to exclude rather than whether the headteacher was right to exclude in the first place. This means that it would not be right to ‘withhold’ information and evidence from the governors and then present it to the IRP. Parents should set out their full case along with the evidence available to them as early as they can do in the process.
2. Consider the framework and the test that headteachers should be applying and present your case in this way?
a. Do you and your child accept the allegations made? If you are denying what your child has been accused of then you need to present evidence to support this? Ensure that this evidence is clear, genuine and convincing. The threshold for panels to consider when dealing with exclusions is whether the child is likely to have done what they have been accused of on the ‘balance of probabilities’. This is whether it is more likely than not to have happened. It is very different to a criminal standard of proof of ‘beyond reasonable doubt’.
b. Was permanent exclusion lawful? Have the governors taken relevant information into account when reaching their decision? If not, why not?
c.Was there some significant procedural unfairness which renders the decision to exclude unsafe from a legal perspective? Did the headteacher fail to take your child’s version of events into account for example?
3. Evidence collection is key – ensure evidence is relevant and collected properly and in a timely manner. Do not try to be underhand or present any surprises. Don’t necessarily accept what the school have presented. If they have not collated the relevant evidence then make this clear to them. Do not prevent access to your child in the process of the school collecting evidence. It is important that their views are heard.
4. Keep an eye on timelimits and follow processes as defined in letters.
5. If your child has SEN, consider whether this was related to the exclusion. If you consider that your child has SEN then you have a right to an SEN Expert at the hearing of the IRP. They should be independent and do not form part of the panel but can advise on factors relating to SEN. For example, were your child’s needs being met? This is key in both challenging the exclusion but also in ensuring they have access to suitable education moving forward to give them the best chance of success. They can also advise on steps school could have taken re seeking support and/or advice in meeting a child’s needs or even identifying such needs in the first place.
Tips for hearings:
The decision of an IRP should be considered final. There is no further right of appeal simply because you disagree with the decision. However, if the IRP has made an error in law then you may be able to challenge further via judicial review proceedings. If you do then it is essential that advice is taken quickly. Any such challenge must be taken ‘without delay’ and within an absolute maximum of 3 months from the date of the unlawful decision.
The key thing after an appeal is ensuring that your child is in suitable, full time, education. This maybe another school, a Pupil Referral Unit or something else. If you consider that your child is not receiving suitable education then seek advice on the options available to you.
A high proportion of those who are permanently excluded, have SEN of some kind. A permanent exclusion should really bring any unmet need to the forefront of your Local Authority’s attention. Do they need an EHCP? Do you need to make a request for an assessment?
If you find yourself in need for advice or representation in relation to an exclusion or related SEN issue then do not hesitate to contact Education Law Experts by completing the telephone consultation form.
References:
School suspensions and permanent exclusions – GOV.UK (www.gov.uk)