Lawful and unlawful exclusions

Evidence from our Child Law Advice Service suggests that the number of children excluded from school may be significantly higher than officially recorded.

Last month, the Department for Education published statistics on permanent and fixed-period exclusions in England from 2015-16, highlighting that the number of permanent exclusions across all state-funded primary, secondary and special schools had increased to 6,685 from 5,795 in the previous year. In primary schools alone there were 485 permanent exclusions.

Evidence from Coram’s Child Law Advice Service (CLAS) suggests the number of children aged three to seven excluded from schools is likely to be significantly higher than this figure as the statistics do not include exclusions by academies, nor unofficial/unlawful exclusions. In the last 18 months, CLAS advised in 81 cases where a child aged three to seven had been excluded (24 permanently and 57 fixed-term). In 30 of these, the adviser concluded that the school may have acted unlawfully either by not complying with the correct procedure, or because it did not adequately consider the child’s special educational needs (SEN).

In 2015/16, pupils with SEN accounted for almost half of all exclusions and were almost seven times more likely to receive a permanent exclusion than pupils with no SEN. Often the schools with a high rate of exclusion of younger pupils are in deprived areas, with many children subject to exclusions having experienced difficulties at home and the involvement of children’s services or other support agencies.

What are unlawful exclusions?

The legal framework governing school exclusions is contained in section 52 of the Education Act 2002, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and statutory guidance. Only a head teacher can exclude a pupil, and the decision to exclude must be lawful, rational, reasonable, fair and proportionate. An exclusion must not be a result of the school being unable to meet a child’s needs and the threat of exclusion must not be used as a way of influencing parents to remove their child from a school or accept a managed move elsewhere. A decision to exclude a pupil permanently should only be taken in response to a serious breach, or persistent breaches, of the school’s behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

A permanent exclusion is usually issued when an incident is exceptionally serious, involving for example, the threat of use of serious violence; sexual abuse or assault; or the supply of illicit drugs. The head teacher should take into account factors such as recent bereavement, mental health issues and bullying.

In the event of an exclusion, parents must be notified, without delay, of the reasons for exclusion; the period of exclusion; their right to make representations to the governing body and how to do so. The governing body must assess whether the decision to exclude was “lawful, reasonable and procedurally fair taking account of the head teacher’s legal duties”. It can either uphold an exclusion or direct the pupil’s reinstatement. A parent can dispute a decision not to reinstate a permanently excluded pupil, which can be heard by an Independent Review Panel. Parents have a right to request that an SEN expert attend the panel hearing.

Statutory guidance states that informal or unofficial exclusions, such as sending pupils home to “cool off” are unlawful regardless of whether they occur with the agreement of parents or carers. Unlawful exclusions also include exclusions where the school has failed to follow the statutory guidance without good reason or has refused to educate a child unless particular conditions are met.

Revised DfE exclusions guidance, which comes into force this month, contains separate annexes for parents, head teachers and governing bodies. Annex C contains helpful guidance for parents and an overview of the rights of parents when children are excluded.

In 2012, the Office of the Children’s Commissioner’s inquiry concluded that “no evidence supports excluding very young children, even in extreme circumstances”. For these children, extremely disruptive or even violent behaviour is often a symptom of SEN, a family difficulty, or a more complicated developmental issue and additional support should be made available “within the school setting”. Five years on, clearly more needs to be done to ensure that all children have access to the education they deserve and need.

Points for practice

  • Schools must take account of their statutory duties in relation to SEN, including early intervention to address the underlying causes of disruptive behaviour and multi-agency assessments to pick up on unidentified SEN, mental health or family problems.
  • Schools should inform all parents of their, and their child’s, rights regarding exclusion at the time their child enrols, and in the event of an exclusion. School policies should be easily accessible.
  • “Managed moves” can often be a benefit to children who are at risk of permanent exclusion. However, at present they are unregulated and parents often misunderstand their function.

For more information, please contact the Child Law Advice Service.

This article was written by Kamena Dorling, head of policy and programmes, and appeared in Children and Young People Now as part of its monthly Legal Update