What Is a Permanent Exclusion?
A permanent school exclusion is a serious decision. Under the Education and Inspections Act 2006, head teachers may only exclude as a last resort when all other behaviour management strategies have failed. A pupil can either be suspended, which is often referred to as a fixed term exclusion, or permanently excluded. A suspension is where a pupil is temporarily removed from school for one or more fixed periods, up to a maximum of 45 school days in a single academic year.
In contrast, a permanent exclusion is when a pupil is no longer allowed to attend the school. This is a decision made by a head teacher to exclude a student who is not able to return to the school unless that decision is overturned. The school will need to provide education for the next 5 school days, and then after that your local authority will take responsibility for your child’s education. This typically involves your child attending a pupil referral unit until alternative arrangements can be made.
There are numerous reasons why a student may be excluded including:
- Bullying
- Drug and alcohol related behaviour
- Persistent disruptive behaviour
- Physical assault against a pupil or adult
- Racial abuse
- Sexual misconduct
- Theft
- Verbal abuse or threatening behaviour against a pupil or adult
The head teacher should write to inform the parent or guardian of the reasons why they have decided to exclude the pupil and also inform them what to do if they disagree with the decision made.
The Legal Framework for School Exclusion
Whilst the head teacher does have the authority to permanently exclude a child, that authority does have limits and restrictions placed upon it. This is set out by the Exclusions guidance published by the Department for Education, which outlines the legal tests and requirements that a head teacher must meet in order to have their exclusion be lawful. An example of this would be the two stage test, which a head teacher must show has been met in order to actually issue the exclusion. This sets out that a permanent exclusion can only be issued:
- 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 such as staff or pupils in the school.
Both of these parts of the test must be met in order for the exclusion to be lawful. Alongside this, there are also additional requirements placed on head teachers to ensure that the decision is made in accordance with public law principles, and that it complies with the requirements of the Equality Act 2010. Put simply, there are lots of potential ways to challenge a permanent exclusion.
How to Challenge a Permanent Exclusion
The process of challenging a decision made by a maintained school or academy is again set out in the DfE guidance, and will include the following:
- Governing Board: review of the head teacher’s decision to permanently exclude the student in question.
- Independent Review Panel (or “IRP”): a request for an independent review made by the parents following a decision by the governing board to uphold the head teacher’s decision. The role of the IRP is to assess whether a pupil’s exclusion has been lawful, reasonable, and procedurally fair and what further action might need to be taken. The IRP can quash the decision made by the governors, and direct reconsideration of reinstatement.
Alongside the immediate routes outlined above, it should be noted that in England you can challenge a permanent exclusion if you believe that the exclusion was the result of disability discrimination. This means that you can take a claim to the Tribunal to have them overturn the decision, though we would typically encourage parents to consider the options above first.
Our education solicitors are frequently instructed to challenge permanent exclusion cases.
Key Questions to Consider Before Challenging an Exclusion
Persistent disruptive behaviour continues to be the most common reason for permanent exclusion, as confirmed by the Office for National Statistics, which often raises the following questions:
- Did the school fairly investigate the case? Is there sufficient evidence to prove the events took place as they claim?
- Did the school apply their behavioural policy correctly?
- What steps did the school take to address the alleged behaviour?
- Are there underlying causes for the disruptive behaviour? For example bullying, SEN or disabilities?
- Was permanent exclusion the last resort? Were there any alternatives to exclusion that could have been considered first?
There are a variety of issues that may not have been taken into consideration by the head teacher before setting down the ultimate sanction. Our specialist education team appreciates that each student is different and should not be treated as a tick-box exercise.
How We Can Help with School Exclusion Appeals
The impact that a permanent exclusion can have on your child’s education and future can be incredibly serious. If your child has been excluded and you wish to challenge the decision made by the school or governing body, our education solicitors can provide independent and impartial advice whilst also providing robust grounds of appeal. Our education solicitors can also provide representations at the board of governors meeting and/or the independent review panel.
If you would like to discuss your matter further, please feel free to contact us on 0333 202 7175. Alternatively, send us an enquiry through our contact form and one of our school exclusion solicitors will contact you later that same day to discuss your matter further and outline how we can help.