Suspending and potentially excluding a child from school can have a significant impact on their education, but in any case it is a last resort which could be used to safeguard school staff and pupils alike.

What is a school exclusion?

Exclusion should be regarded as a Draconian remedy of last resort.The decision to exclude must be lawful, reasonable, fair and proportionate.

The framework governing school exclusions is contained in section 52 of the Education Act 2002, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and statutory guidance.The power to exclude rests with the head teacher or with the teacher in charge of a pupil referral unit.

There are two types of exclusion:

Fixed exclusions: These involve the pupil being excluded from school for a fixed period of time, on one or more occasions in any school up to a maximum of 45 school days. Individual exclusions should be for the shortest time possible, in order to facilitate reinsertion of pupils when they return to school.
Permanent exclusions: These prohibit pupils from returning to school. Permanent exclusions should only be imposed when a child presents a risk to other pupils.
Permanent exclusions should only be used as a last resort and in response to a serious breach or persistent breaches of the school’s behaviour policy. They usually follow an incident of an exceptionally serious nature, such as the use of drugs or sexual abuse or assault. Mitigating factors such as bullying or embarrassment should be taken into account by the head teacher when making the decision.

In any event, a child should not be excluded because the school cannot deal with his or her special needs, as this could give rise to a disability discrimination case.

What is the process if a decision to exclude is challenged?

In the event of an exclusion, parents must be notified in writing by the school promptly. They must be informed of the reason for the exclusion, the period of exclusion and of their right to make representations to the governing body to review the head teacher’s decision.

The governing body will then have to assess whether the decision to exclude was lawful, reasonable and procedurally fair.It can uphold the exclusion or direct the pupil’s reinstatement.

If the governing body decide not to reinstate the child and the parents wish to challenge this decision, they can turn to an Independent Review Panel.

If the Independent Review Panel considers that the decision to exclude was illegal, irrational or procedurally improper, it may order the governing body to reconsider the decision.

The school’s governing body is not under an obligation to reinstate because of the direction of the Panel.However if it decides not to reinstate the child, then the school will have to pay £4,000 to the local authority.

It is worth noting that the penalty does not apply to parents in the opposite situation. Indeed, if the governing body offers reinstatement but the parents decide that this is not the right way forward for their child, then the £4,000 financial adjustment is not relevant.The parents, head teacher and relevant local authority must be notified of the decision.

Importantly, if parents believe that their child has been discriminated against, they can also make a claim to the First-Tier Tribunal or the County Court.The First-Tier Tribunal will hear cases of disability discrimination and the County Court other forms of discrimination.

Can the Independent Appeal Panel compel a governing body to reinstate a child?

The Independent Appeal Panel cannot compel the school to come back on its decision and to reinstate a pupil who has been permanently excluded. Instead, it can only make recommendations that the exclusion decision is reconsidered.If a child’s parents are unhappy with the governing body’s decision after that, they can apply for Judicial Review.

Judicial Review is the process during which a judge considers the lawfulness of a decision, action or inaction by a public body. This includes the decisions of a school’s governing body. Decisions of independent schools or non‑maintained schools cannot, however, be challenged by Judicial Review. In those cases, parents can bring an action in private law for breach of contract.

There are two stages to the process of Judicial Review. The first stage is an application for permission during which the Court will decide whether there is an issue it should consider.If permission is granted, the second stage consists of a full consideration of the issue(s). This stage usually involves a hearing during which the Court considers the arguments of all parties and decides whether or not to uphold the application.

For an application for Judicial Review to be successful, the parents will have to show that the school’s governing body:

  • Has acted against its legal obligation;
  • Is refusing to do something which it is required to do by law;
  • Has made a decision it was not entitled to make; or
  • Has acted in ways beyond its powers.

An application for Judicial Review must be made as soon as possible and in any event within three months of the governing body’s decision.

The process of Judicial Review is very complex and requires parties to act promptly. Successfully arguing or defending such cases requires the specialist knowledge of the law and professional advice is crucial. So `if you find yourself in a situation like this please contact Jonathan Warner Reed.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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