A Guide to submitting a Review against a decision to exclude a child from a school or academy

The number of fixed period and permanent exclusions is increasing year by year.  The Education Act 2011 amended the law governing exclusions however exclusion continues to be difficult and emotive for children, parents, and schools.

If as a parent, you have received a formal notice from your child’s school regarding an exclusion, a decision that will have been confirmed by the Governing Body’s discipline committee, you will need to decide whether or not you believe that decision was correct given the specific circumstances of your child’s case. You may wish to challenge the exclusion, and all parents have that right to review by an independent panel. This right is irrespective of the reasons for permanent exclusion. Under these circumstances, legal advice can be reassuring to help clarify the law and to provide guidance on the appropriate action and how best to manage a difficult time in your child’s school life.

Most permanent exclusions are the result of persistent disruptive behaviour. Staff, students and pupils should be aware of a school’s behaviour policy and the consequences of not complying. This should be brought to their attention at least once in every school year.

The Behaviour Policy should include:

  • Expectations and acceptable standards of behaviour
  • School rules
  • Disciplinary sanctions
  • Power to discipline beyond the school gate
  • Power to use reasonable force
  • Searching pupils and seizing – including list of prohibited items

The Behaviour Policy must be published on the school website; alternatively parents should be directed to where the Policy can be found. Academies are not required to publish a behaviour policy on their website but it must be made available to parents on request.

The 2011 Education Act has led to a fundamentally different approach to exclusion appeals with provisions:

  • Requiring the responsible body in prescribed cases to consider whether the pupil should be reinstated
  • Requiring the local authority to make arrangements enabling a prescribed person to apply to a review panel for review of the decision not to reinstate a pupil
  • The procedure to be followed on a review

Schools are required to investigate whether disruptive behaviour can be an indication of unmet needs, with particular consideration to be given to the fair treatment of pupils from groups who are vulnerable to exclusion; those with Special Educational Needs, pupils eligible for Free School Meals and certain ethnic groups.  Also, they may also look at what additional support may be needed to reduce the risk of exclusion; drawing on external agencies where appropriate.

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 a pupil to remain in the school would seriously harm the education or welfare of the pupil or others in the school.

Permanent exclusion should be used as a last resort and contributing factors should be identified. The school should consider whether anything more could have been done to avoid excluding a pupil.

Once the decision to exclude has been taken the Headteacher must make sure that the excluded child and their parents are informed of the:

  • Reason for the exclusion
  • Length of the exclusion and whether it is permanent
  • Evidence presented in support of the decision to exclude (for permanent exclusions)
  • Process for appealing and parent’s rights to make representations

Depending on the length and conditions of the exclusion, the Governing Body must consider the parental representations:

  • For exclusions of under 6 days in a term there is no requirement to meet the parents and no timescale for a response
  • For exclusions of 6 to 15 days there is no requirement to meet with parents unless parents request a meeting and consideration of the exclusion must be within 50 days of notification by the Headteacher
  • Permanent exclusion or exclusions of more than 15 days or where a pupil may miss a public exam, the Governing Body must meet with the parents within 15 days of receiving notice of the exclusion. The Governing Body has the power to uphold the Headteacher’s decision, reinstate the pupil. They will address whether the decision by the Headteacher was lawful, reasonable and procedurally fair.
  • Any decisions made by the Governing Body must be notified to the parents in writing and without delay in sufficient detail to enable parties to understand why the decision was made.
  • Parents must be notified that they have a right to ask for the decision to be reviewed by an Independent Review Panel within 15 school days from the date on which notice of the Governing Body’s decision was given to parents. They must also be notified of the right to request a SEN expert if necessary.

The Independent Review Panel has various powers including:

  • Recommending that the decision to exclude be reconsidered
  • Quash the decision if they consider it flawed in light of Judicial Review principles

You may feel that the School and the Governing Body have not considered your views carefully or have not administered the exclusion process in the correct way. If you are unsure about this, we can provide you with independent legal advice.

For more information about appealing against exclusion decisions or about other education matters, contact our Education Team in Oxford.