Wednesday, 25 April 2018

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Exclusion

Exclusion

Exclusion is a disciplinary sanction, which is used when a pupil breaches a school’s behaviour and/or discipline policy.

Every school has a policy outlining the school's general approach to managing behaviour and discipline and sometimes, the headteacher will need to make the decision to exclude a pupil.

An exclusion means that a pupil is not allowed on the school premises for the duration of the exclusion.

The information in this summary provides a guide to the legislation that governs the exclusion of pupils from all schools in England from 1 September 2012. It applies to all maintained schools, Academy and Free schools, Alternative Provision Academies and Free Schools and pupil referral units. 

When using the term “parents” this refers to all those that have parental responsibility and any person (e.g. a foster carer) with whom the child lives.

When reference is made to “days” this equates to school days.

Why would a pupil be excluded?

Only the headteacher of a school can make the decision to exclude a pupil.Headteachers can exclude your child if they misbehave in school and in some circumstances the behaviour of pupils outside school can also be considered as grounds for exclusion. This will be a matter of judgement for the headteacher in accordance with the school’s published behaviour policy.

There are two types of exclusion:

  • Fixed-Term Exclusion
  • Permanent Exclusion

A pupil may be excluded for one or more fixed periods up to a maximum of 45 school days in a single academic year, (even if they’ve changed school), or permanently.  

The decision to exclude permanently should only be used as a last resort and taken: 

  • in response to serious or persistent breaches of the school's behaviour policy;
  • where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

When establishing the facts in relation to an exclusion decision the head teacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true, rather than the criminal standard of ‘beyond reasonable doubt’.

'Informal' Exclusion

There are only two types of exclusion which are lawful: fixed-term (for a specific number of school days)and permanent (unable to return to that school unless the parent or young person can overturn the exclusion on appeal). This means that legally a child is either in school full-time or they are excluded from school.

‘Informal’ or ‘unofficial’ exclusions, such as sending pupils home early, ‘to cool off’, or at lunch time or asking pupils not to come in on certain days or to have a part-time timetable, are all unlawful regardless of whether there has been agreement of the parents.

Any exclusion of a pupil, even for a short period of time, must be properly notified to parents and formally recorded.

Pupils whose behaviour at lunchtime is disruptive may be excluded from school for the duration of the lunchtime period. In such cases the legal requirements in relation to exclusion, such as the head teacher’s duty to notify parents, still apply. Lunchtime exclusions are counted as half a school day.

Fixed-Term Exclusion

  • The school must inform the parents about the exclusion as soon as possible. They’ll follow up with a letter explaining to you how long your child is excluded for and the reasons for the exclusion. You should also be told how to challenge the decision, if you disagree with the exclusion.

  • In addition the headteacher must also notify the governing body and local authority of:

    • a permanent exclusion (including where a fixed period exclusion is made permanent);

    • exclusions which would result in the pupil being excluded for more than five school days (or more than ten lunchtimes) in a term; and

    • exclusions which would result in the pupil missing a public examination or national curriculum test.

  • Exclusions can start on the same day but the school shouldn’t make you collect your child straight away.

  • A Fixed-Term Exclusion is for a set number of days, after which the pupil returns to school

  • For the first five days, the school should take reasonable steps to set and mark work for the pupil.

  • If the exclusion is for more than five days, alternative full time provision must be arranged by the school (governing body) from the sixth day.The school must tell you about any alternative education they arrange. It’s your responsibility to make sure your child attends. If alternative education isn’t arranged within 5 days, or you’re not happy with the education, you can complain to the school. If you’re not happy with their response, you can complain to the Department for Education (DfE) once you have followed the school’s complaints procedure.

  • During the first five days of the exclusion,(or until the start date of any alternative provision where this is earlier), the pupil must not be in a public place during school hours unless there is a good reason and the parents are responsible for the whereabouts of the pupil. You might be given a fixed penalty notice or prosecuted if your child is found in a public place when they’re not supposed to be.

  • On returning to school, there will be a re-integration meeting, in which all those concerned can discuss the best way forward for the pupil.

  • The governing body has a duty to consider parents' views about an exclusion. Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.

  • Parents can ask the school’s governing body to overturn the exclusion if either:

    • the child has been excluded for more than 5 days

    • the exclusion means the child will miss a public exam or national curriculum test

  • The governing body must consider the reinstatement of an excluded pupil within 15 school days of receiving notice of the exclusion if:

◦The exclusion is permanent;

◦it is a fixed period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term; or

◦it would result in a pupil missing a public examination or national curriculum test.

  • If a pupil would be excluded from school for more than five school days, but not more than 15, in a single term, and if requested to do so by the parents, the governing body must consider the reinstatement of an excluded pupil within 50 school days of receiving notice of the exclusion.

  • If the exclusion is for 5 days or fewer and does not bring the pupil's total number of days of exclusion to more than five in a term, you can still ask the governors to hear your views but they can’t overturn the headteacher’s decision. The governing body is not required to arrange a meeting with the parents, however they should consider whether it would be appropriate to place a note of their findings on the pupil’s educational record.

  • When establishing the facts in relation to an exclusion decision the governing body must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true rather than the criminal standard of ‘beyond reasonable doubt’.

  • In reaching a decision on whether or not to reinstate a pupil, the governing body should consider whether, based on the evidence, the decision to exclude the pupil was justified, lawful, reasonable and procedurally fair, taking account of the head teacher’s legal duties.

  • In the light of their consideration, the governing body may (where applicable):

•uphold an exclusion; or

•direct reinstatement of the pupil immediately or on a particular date (where practical and with agreement of the parents)

  • If you think your child has been discriminated against (under the Equality Act 2010) in relation to a fixed-term exclusion, you can also make a claim to the First-Tier (SEND) Tribunal (for disability discrimination) up to six months after the discrimination is alleged to have occurred. Making a claim would not affect your right to make representations to the governing Body. If the tribunal agrees, a parent can request an expedited hearing and the case will be heard in no more than six weeks from application to judgement. The Tribunal can order the Responsible Body to do anything reasonable to put right the effects of the discrimination, including reinstatement of the pupil. However, the law does not allow payment of compensation. Contact the Equality Advisory & Support Service for help and advice on 0808 800 0082.

Permanent Exclusion

  • The school must inform the parents about the exclusion as soon as possible. They’ll follow up with a letter explaining to you that the exclusion is permanent and the reasons for the exclusion. You should also be told how to challenge the decision, if you disagree with the exclusion.

  • In addition the head teacher must also notify the governing body and local authority of:

    • a permanent exclusion (including where a fixed period exclusion is made permanent);

    • exclusions which would result in the pupil being excluded for more than five school days (or more than ten lunchtimes) in a term; and

    • exclusions which would result in the pupil missing a public examination or national curriculum test.

  • Exclusions can start on the same day but the school shouldn’t make you collect your child straight away.

  • For the first five days, the school should take reasonable steps to set and mark work for the pupil.

  • During the first five days of the exclusion,(or until the start date of any alternative provision where this is earlier), the pupil must not be in a public place during school hours unless there is a good reason and the parents are responsible for the whereabouts of the pupil. You might be given a fixed penalty notice or prosecuted if your child is found in a public place when they’re not supposed to be.

  • An assessment of the pupil should be undertaken by the local authority, so that a long-term re-integration plan for a new placement can be devised.

  • Where a pupil has a statement of SEN /EHCP, the local authority must ensure that an appropriate full time placement is identified in consultation with the parents, who retain their rights to express a preference for a school that they wish their child to attend, or make representations for a placement in any other school.

  • The Local Authority must arrange suitable full time education for the pupil to begin no later than the sixth day of the exclusion.The local authority must tell you about any alternative education they arrange. It’s your responsibility to make sure your child attends. If alternative education isn’t arranged within 5 days, or you’re not happy with the education, you can complain to the local authority (Portsmouth City Council).If you’re not happy with the response, you can complain to the Department for Education (DfE) once you have followed the council’s complaints procedure.

  • The governing body has a duty to consider parents' views about an exclusion. Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.

  • Parents can ask the school’s governing body to overturn the exclusion if either:

    • the child has been excluded for more than 5 days

    • the exclusion means the child will miss a public exam or national curriculum test 

  • The governing body must consider the reinstatement of an excluded pupil within 15 school days of receiving notice of the exclusion if:

    ◦The exclusion is permanent;

    ◦it is a fixed period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term; or

    ◦it would result in a pupil missing a public examination or national curriculum test. 

  • If your child has been permanently excluded you’ll be invited to a review meeting with the school’s governors within 15 school days. Parents, the head teacher and ,in the case of a maintained school or PRU, a representative of the local authority must be invited to the meeting and allowed the opportunity to present their point of view, regarding the exclusion.

  • At that meeting the governing body may (where applicable):

    •uphold an exclusion; or

    •direct reinstatement of the pupil immediately or on a particular date (where practical and with agreement of the parents)

  • In reaching a decision on whether or not to reinstate a pupil, the governing body should consider whether, based on the evidence, the decision to exclude the pupil was justified, lawful, reasonable and procedurally fair, taking account of the head teacher’s legal duties.

  • When establishing the facts in relation to an exclusion decision the governing body must apply the civil standard of proof; i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true rather than the criminal standard of ‘beyond reasonable doubt’.  

  • If the governors don’t overturn the exclusion, you can ask for an independent review by your local authority (or academy trust if the school’s an academy). The governors must tell you how to do this.

  • If applied for by parents within the legal time frame, the local authority or academy trust must, at their own expense, arrange for an independent review panel hearing to review the decision of a governing body not to reinstate a permanently excluded pupil.

  • The legal time frame for an application is: within 15 school days of notice being given to the parents by the governing body of their decision to uphold a permanent exclusion or where an application has not been made within this time frame, within 15 school days of the final determination of a claim of discrimination under the Equality Act 2010 in relation to the exclusion. 

  • If requested by parents in their application for an independent review panel, the local authority/academy trust must appoint an SEN expert to attend the panel and cover the associated costs of this appointment. The SEN expert’s role is like that of an expert witness, providing impartial advice to the panel on how special educational needs might be relevant to the exclusion.

    The focus of the SEN expert’s advice should be on whether the school’s policies which relate to SEN, or the application of these policies in relation to the excluded pupil, were legal, reasonable and procedurally fair. If the SEN expert believes that this was not the case he / she should, where possible, advise the panel on the possible contribution that this could have made to the circumstances of the pupil’s exclusion.

    The SEN expert’s role does not include making an assessment of the pupil’s special educational needs.

  • Parents have a right to request the attendance of an SEN expert at a review, regardless of whether the school recognises that their child has SEN. Where the school does not recognise that a pupil has SEN, the SEN expert should advise the panel on whether he / she believes the school acted in a legal, reasonable and procedurally fair way with respect to the identification of any special educational needs that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion.

  • The role of the panel is to review the governing body’s decision not to reinstate a permanently excluded pupil. In reviewing the decision the panel must consider the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded, and have regard to the interests of other pupils and people working at the school.

  • The panel must apply the civil standard of proof, (i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true) rather than the criminal standard of ‘beyond reasonable doubt’.

  • Following its review the panel can decide to:

    • uphold the exclusion decision;

    • recommend that the governing body reconsiders their decision, or

    • quash the decision and direct that the governing body considers the exclusion again.

  • An independent review panel does not have the power to direct a governing body to reinstate an excluded pupil. However, where a panel decides that a governing body’s decision is flawed when considered in the light of the principles applicable on an application for judicial review, it can direct a governing body to reconsider its decision. If the governing body does not subsequently offer to reinstate a pupil, the panel will be expected to order that the school makes an additional payment of £4,000. This payment will go to the local authority towards the costs of providing alternative provision.

  • If your child is still excluded you can ask the Local Government Ombudsman (or the Education Funding Agency if the school’s an academy or free school) to look at whether your case was handled properly. They can’t overturn the exclusion. 

  • If you think your child has been discriminated against (under the Equality Act 2010) in relation to a fixed-term exclusion, you can also make a claim to the First-Tier (SEND) Tribunal (for disability discrimination) up to six months after the discrimination is alleged to have occurred. Making a claim would not affect your right to make representations to the governing Body. If the tribunal agrees, a parent can request an expedited hearing and the case will be heard in no more than six weeks from application to judgement. The Tribunal can order the Responsible Body to do anything reasonable to put right the effects of the discrimination, including reinstatement of the pupil. However, the law does not allow payment of compensation. Contact the Equality Advisory & Support Service for help and advice on 0808 800 0082.

What if my child has Special Educational Needs?

The exclusion rates for certain groups of pupils are consistently higher than average. This includes pupils with SEN and/or disabilities.

These pupils with additional needs may display disruptive behaviour that is as a result of their Special Educational Need (SEN) and may also be particularly vulnerable to the impacts of exclusion.

Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs and as far as possible, avoid excluding permanently any pupil with a statement of SEN or an EHCP.

Where a school has concerns about the behaviour, or risk of exclusion, of a child with SEN and/or disabilities it should, in partnership with others, consider whether appropriate provision is in place and what additional support may be required. In some cases this may include considering an alternative placement. Early intervention to address underlying causes of disruptive behaviour is important in trying to avoid the need for exclusion.

Where a pupil has a statement of SEN or EHCP, schools should consider requesting an early annual review or interim review and the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour.

Head teachers and governing bodies must take account of their statutory duties in relation to SEN when administering the exclusion process. This includes having regard to the SEN Code of Practice.

The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty under the Equality Act 2010 not to discriminate against pupils on the basis of protected characteristics, such as disability.

Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. This includes the duty to make reasonable adjustments to policies and practices in order that their policies and practices do not discriminate against pupils by unfairly increasing their risk of exclusion.

For further information: 

You can contact the Portsmouth SEND Information Advice and Support Service (IASS) on 0300 303 2000 or visit the following websites:

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