Ten top tips on school exclusions
4 September 2018
"The number of permanent exclusions increased from 6,685 in 2015/16 to 7,720 in 2016/17. This corresponds to an average of around 40.6 permanent exclusions per day in 2016/17."
(According to DfE national statistics for England, published in July 2018)
Exclusion decisions are frequently taken before the end of the school day when a number of important issues demand your attention. Head teachers do not use their power to exclude a pupil lightly, but all decisions must be legally sound.
Here are our ten top tips, including factors that must be considered when deciding to exclude a pupil, either on a fixed-term or permanent basis.
All exclusions must comply with the procedure set out in the Statutory Guidance, "Exclusion from maintained schools, Academies and pupil referral units in England" (September 2017) which is available here and referred to in this article as "the Guidance".
Independent Schools are not technically bound by this guidance, but should consider it a benchmark of best practice and, we would suggest, will need to have good reason to depart from the core principles.
- Behaviour Policy
Your School's Behaviour Policy must be: up to date and implemented in practice; compliant with the Guidance; clear and transparent; and available to pupils, parents and parents of prospective pupils at the school. If you are conducting an exclusions process, make sure you refer to both the School's Policy and the Guidance throughout the decision making process.
- Lawful and unlawful exclusion
Head teachers can lawfully exclude a pupil for a disciplinary reason if their behaviour breaches the School's Behaviour Policy. Behaviour outside school can also be considered grounds for an exclusion.
Head teachers cannot lawfully exclude pupils for poor academic performance or because they have additional needs or a disability that the School feels unable to meet. Informal or unofficial exclusions (such as sending a pupil home at lunchtimes) are unlawful, regardless of whether the pupil's parents are supportive of this action.
Where there is a Parent/School Contract in place, this should confirm how you are able to respond to unacceptable behaviour if the behaviour relates to the parent rather than the pupil.
- Factors to consider
A simple place to start, but what exactly is the allegation?
You must fully investigate specific incidents and the surrounding circumstances. Consider whether exclusion is the most appropriate sanction: is it rational, reasonable, fair and proportionate?
Insofar as it is possible, Head teachers should avoid permanently excluding Looked After Children (LAC), previously LAC and/or pupils with statements of SEN/ EHC Plans.
- Individual circumstances
You should consider whether there might be another explanation for poor behaviour? Are there current or past factors/events going on at home or at School that should be taken into account, such as bullying or bereavement? What is the pupil's behaviour record to date?
- Support from the School
Disruptive behaviour can be an indication of unmet needs. If a pupil is showing poor behaviour or is at risk of exclusion, what additional support has the school put in place for this pupil? Is there anything else that should or could be done? Is the school able to produce evidence of any assessment and/or support provided if the decision to exclude is challenged?
Keep in mind that the Guidance states that excluded pupils should be "enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding".
- Balance of probabilities
What evidence is available to you? The decision to exclude must be made on the basis of the civil burden of proof. "On the balance of probabilities", is it more likely than not that the pupil did what they are alleged to have done?
- Serious breach
If you are you triggering the sanction of permanent exclusion, is it in response to a serious or persistent breach(es) 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 other pupils at the school? A decision to exclude should only be taken on this basis.
- Record keeping
Any exclusion of a pupil must be formally recorded. The importance of also having an evidence trail should not be underestimated. As a general rule, do you record the use and effectiveness of any support or sanctions that the School is using?
Keep a record of all conversations, contact with parents and warnings to pupils, deliberations and reasons for making a decision or step in the decision-making process. This will help you to demonstrate a fair and robust process in each case, but will also ensure that the School is implementing sanctions consistently.
- Decision letter
The Head teacher must notify parents of the decision to exclude in writing. The decision letter should be written in plain English and clearly state the reasons for the exclusion and whether it is a fixed-term or permanent exclusion. Depending on the structure of your school, you will need to explain any other relevant information, such as whether the parents have the right to appeal the decision, how any representations should be made and how the pupil might be involved in the process.
You can never guarantee that your decisions will be completely free from legal challenge. It is best to get advice at an early stage to make sure you are on the right track.
Our Education team is experienced in working with Head teachers, School Business Managers and Governors in relation to school exclusions. Please contact Vicky Wilson, Stephen Oxley or your usual Wilsons contact if you have a specific issue that you would like to discuss.