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Being excluded from school can be a distressing and difficult time for both the student and their parents/carers. The process can be daunting for families, thereby requiring independent and pragmatic advice. This blog explains the types of school exclusion and how it differs between state and independent schools.
Students can be excluded from school on either a fixed term or permanent basis. Fixed term exclusion (also called a suspension) is for a specific, limited period of time, whereas a permanent exclusion means the student has been expelled from the school and permanently barred from the school premises.
Fixed term exclusion should only be for a short period of time and must have a stated end date. It can be for one or more fixed periods up to a maximum of 45 school days in any one academic year.
According to the ‘Permanent exclusions and suspensions in England’ publication which was published last month, persistent disruptive behaviour continues to be the most common cited reason for both permanent exclusions and suspensions.
The Department for Education (DfE) published statutory guidance on school suspensions and permanent exclusions. ‘Exclusion from maintained schools, academies and pupil referral units in England’ governs the exclusion of students from state schools, pupil referral units (PRUs), academies (including free schools, studio schools and university technology colleges) and also alternative provision academies.
The guidance is clear that the decision to exclude a student “must be lawful, reasonable and fair” and that any exclusion, even if it is for a short period of time, must be formally recorded. There is no written list setting out the reasons why a school can or cannot exclude a student; however the Education Act 2002 states that only a head teacher has the power to exclude a student and this must be on disciplinary grounds i.e. because the student’s behaviour seriously breaches the school’s behaviour policy. The behaviour of a pupil outside of school can be considered grounds for exclusion, such as cyber-bullying or behaviour on a school trip.
Additionally, schools have “a statutory duty not to discriminate against pupils on the basis of protected characteristics, such as disability or race”, and schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. It is unlawful for a school to exclude a pupil for a non-disciplinary reason, for example, because the student has additional needs which the school is unable to meet, or due to academic performance or ability.
The statutory guidance does not apply to independent schools (also known as private or public schools) however. Exclusion from a fee-paying independent school is dictated entirely by the contract between the school and the fee payer. Independent schools have their own behaviour and exclusion procedures which they will apply when considering exclusion. Contractual terms can vary between schools, and so it is advisable that you check what the contract says if your child is facing any type of exclusion.
The Education Act 2002 dictates that a head teacher in an independent school has the power to exclude a student if their behaviour is inconsistent with the standard of conduct expected. The grounds for exclusion at independent schools are similar to those of maintained schools and academies; however, whereas exclusion must only be on disciplinary grounds within maintained schools and academies, a student can be excluded for failure to meet the required academic standards within an independent school. This is something families are often not aware of.
In any exclusion process, it is important to ensure that the correct procedures are being followed, and any extenuating circumstances considered.
You have the right to challenge both a fixed term and permanent school exclusion to the school’s governing board. This may be where you believe the reason for exclusion was unlawful, there are mitigating factors which were not taken into account, or the school has made a mistake in its decision to exclude.
In the case of a permanent exclusion, you should be given the opportunity to make representations to the governing board at a review meeting. This should take place within 15 school days of being told about the exclusion, and the governing board must consider whether the student’s position in the school should be reinstated. This also applies for fixed period exclusions where the student will miss more than 15 days in one term, or will miss a public examination or a national curriculum test.
If the governors do not overturn the exclusion, you can take the matter to an independent review panel who will formally review the governing board’s decision and consider whether the correct procedures were followed. An independent review panel does not have the power to compel a governing board to reinstate the excluded student; however it can direct a governing board to reconsider its decision where the panel decides that the decision is flawed.
If your child attends an independent school, you should first check your contract with the school together with the school’s policies, which will set out the process for challenging an exclusion.
Independent schools are required to meet the DfE’s standards set out in the Education (Independent School Standards) Regulations 2014. Although this guidance is non-statutory, it sets out the standards which independent schools must meet and how the DfE regulates independent schools.
If you are concerned about a pending exclusion or believe your case was not handled appropriately, please get in touch with our Students Team
Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.
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