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Exclusions

If your son or daughter has been excluded from school, what do you do next?

Boy on a swing © Photo by Twin Design

All children are entitled to an education, but the law allows schools to exclude a child that they feel has broken the school’s behavior code.. Sometimes that decision is within the law, in which case you’ll need to make other arrangements; sometimes it’s unlawful, in which case you may want to fight the decision. Either way, it’s an unhappy business for families, and the more information you have, the better prepared you can be to deal with it.

What is an exclusion?

Lawful exclusions fall into two categories:

  1. Fixed term: This is what used to be called a ‘suspension’: the child is not allowed into school for a certain number of days. Those days don’t have to be continuous – for example, a child could be excluded every Monday for the next three months. The maximum a school is allowed to exclude a child on a fixed term basis is 45 days per academic year. In exceptional cases – usually where further evidence has come to light since the original decision – the school may be able to extend the fixed term exclusion or change it to a permanent one.
  2. Permanent: What used to be called ‘expulsion’. The child is not allowed to return to the school and will have to be educated elsewhere.

There is also an ‘informal’ or ‘unofficial exclusion’ which is unlawful, in which the child is sent out of school but there’s no record taken. We’ll talk about this further down the page, but for ease of reading we’ll cover the subject of official exclusions in full first.

What gets a child excluded?

A school can’t simply exclude a child because they feel like it: they have to follow the principles of administrative law – which is to say, they have to be able to produce a good legal reason. The reason has to be on disciplinary grounds, ie, the child has broken the school rules.

Autism, of course, complicates this a great deal, because what might look like disobedience or misbehavior in a non-autistic child could, for a child with autism, be confusion, distress or misunderstanding. In practice a lot can depend on how much sympathy and understanding the school has towards your son or daughter’s difficulties, and also in how well they handle them if they get agitated. A school should not exclude a child for making a mistake or having difficulties.

The situation is likely to be further complicated by the fact that not all schools have the same rules. If you’re worried that your school’s behavior policy isn’t fair or well-thought-out, it’s a good idea to check the Department for Education’s guidance for schools on their behavior polices; these are recommendations rather than rules, so schools don’t absolutely have to follow them, but they should at least be influenced by them.

To be legitimate, an exclusion must be:

  • Lawful. That is, it must comply with the law, both specific laws about exclusion and with a school’s wider duties, including the European Convention on Human Rights.
  • Rational.
  • Reasonable.
  • Fair.
  • Proportionate.

If the exclusion is permanent, it must also be:

  • In response to a serious breach, or persistent breaches, of the school’s behavior policy, and
  • A situation where keeping the child in school would seriously harm either their own welfare or education or the welfare or education of other pupils

Of course, it’s not impossible that these rules could apply in the case of excluding a child with autism – many children with autism are as capable of deliberate misbehavior as any other child – but knowing the guidelines is the first step in dealing with exclusion or the threat of it.

Can a school exclude a child with a Statement or EHCP?

Yes, but only as a last resort.

The whole purpose of Statements and EHCPs is to help schools be pro-active about engaging with your child’s higher level of needs. That being the case, the school should use the EHCP process to do what they can to avoid exclusion.

There are two main ways this could be done:

  1. Staying in school but reassessing: If the school is starting to consider exclusion, they could request a Statement/EHCP review – either moving the annual review to an earlier date, or setting up an interim or emergency review. At that point, they should re-assess the pupil’s needs and the provision made for them to see if the situation could be managed better.
  2. Moving schools without exclusion: If the school think that they aren’t in a position to meet your son or daughter’s needs, they can propose what’s called a ‘managed move’ to another school. This doesn’t carry the stigma of exclusion: it means that you, the head of your child’s current school and the head of a proposed new school all agree that your child should make the move. It can be a good way of getting a fresh start if things are really not working out; however, it’s meant to be a cooperative business, and can’t be done if anybody involved objects. That includes you: the school should never threaten to exclude your son or daughter in order to force a managed move.

These should be the options your son or daughter’s school should consider before moving to exclude. However, if all else fails, sometimes exclusions do end up being the next step.

Can a school exclude my child because he or she is disabled?

Legally speaking? Absolutely not. This applies whether your child has a Statement/EHCP or not. The key reference here is the Equality Act of 2010, which defines a disability as ‘a physical or mental impairment which has a substantial and long-term adverse effect on a person’s normal ability to carry out day-to-day activities.’ Excluding a child because they’re disabled is against the law.

If you think that’s what’s going on, gather as much concrete evidence as you possibly can. If you can prove it, you have the right to make a claim for disability discrimination. Disability discrimination is also a subject to be aware of when it comes to unofficial exclusions. (Scroll down to the bottom for more on these.)

So what happens if my child is excluded?

Exclusion, whether fixed term or permanent, represents a serious upheaval in everyone’s lives. How are you supposed to deal with it?

The first thing to know is that he or she is still entitled to an education. How the system will manage this depends on the length of the exclusion:

If the exclusion is fixed term:

  • Your child’s school remains responsible for educating them. That means they should send work to be done at home to make sure they don’t fall behind: you return it and the school marks it.

If the exclusion is permanent:

  • The school remains responsible for their education for the first five days after they’ve been excluded.
  • On the sixth day, the responsibility passes to the local authority.

Challenging an exclusion

If your child was excluded, you may feel it’s best to accept this and focus on moving on, or you may feel that the exclusion was unreasonable and decide to challenge it. That means appealing to the school’s governing body. What you’ll be appealing for is technically known as ‘reinstatement’ – which in layman’s terms means putting your child back in school as normal.

The urgency with which the governing body treats these appeals depends on the size or seriousness of the exclusion. The deadlines go as follows:

  • The governing body should consider reinstatement within 15 days of getting notice of the exclusion if:
    • The exclusion is permanent, or
    • It’s a fixed period exclusion which adds up to more than 15 excluded days in a single term, or
    • The exclusion would mean missing a public exam or national curriculum test.
  • The governing body should consider reinstatement within 50 days of getting notice of the exclusion if:
    • They’ve had an official request from you, and
    • The exclusion adds up to more than 5 (but less than 15) days in a single term.
  • The governing body should consider any representations you make, but can’t order reinstatement and can choose not to meet with you, if:
    • You contact them, and
    • The exclusion period is less than 5 days in a single term.

If the governing body does decide to reconsider an exclusion, the next stage is holding a meeting.

The governing body meeting

Once the school’s governing body has decided to meet and hear you challenge the exclusion, they have to invite the following people to attend:

  • Parents or guardians.
  • The headteacher.
  • If the school is a maintained school or pupil referral unit, they should also invite a representative of the local authority.

Everyone present will be allowed to ‘make representations’ – that is, to put their point of view across.

The governing body has certain responsibilities at this meeting. It has to:

  • Respect confidentiality. They can’t discuss the exclusion with anyone not at the meeting.
  • Allow you and your child to bring a friend or representative along for support.
  • Remember their duty to ‘make reasonable adjustments’ to make it possible for everyone to attend. For instance, if your son or daughter has communication difficulties, he or she may need someone else to speak for him or her; if he or she has mobility difficulties, the meeting shouldn’t be held somewhere unreachable. The basic principle is that the governors should try to support you and, if possible, your child being at the meeting, and if there are difficulties caused by a disability, make an effort to work around them.
  • Identify what they should do to ‘enable and encourage’ your son or daughter to be there and speak for him or herself. Bringing someone as support and/or keeping the language simple enough for him or her to understand are examples.
  • If your son or daughter can’t be there, the governors should try to get some idea of their opinions and feelings by other means.
  • They should ask for any written evidence in advance. This may include witness statements, descriptions of your child’s special educational needs, and any other relevant information held by the school.
  • If possible, they should circulate all this information to everyone attending at least five school days before the meeting. The information should include a list of everyone who will be present at the meeting.

So, what happens at the meeting? Basically, everybody gives their opinion and the governors have to decide what to do about the exclusion.

Their choices are to:

  • Uphold the exclusion, or
  • Tell the school to reinstate your child, either immediately or on a particular date
  • If your child has already returned after the exclusion, or has already started at another school, the governors can still consider whether the Head’s decision to exclude was justified based on the evidence.

How do the governors make this decision? There are two basic principles:

  • The governors go on what’s known as the ‘civil standard of proof’. In criminal cases, proof is supposed to be established ‘beyond reasonable doubt’, but in civil cases, the standard is ‘on the balance of probabilities’, and that’s what the governors should be applying here.
  • They should consider whether the school’s decision to exclude was in line with the guidelines (see above, ‘What gets a child excluded?’) Taking into account the headteacher’s legal duties, they should consider whether the exclusion was lawful, reasonable and procedurally fair.

When do I hear the results of the meeting?

The governors may wish to discuss the situation among themselves before they reach a decision, so you may not know what they’ve decided at the meeting itself. However, they do have to notify you, in writing and without delay. The people that must be included in this notification are:

  • You.
  • The school’s headteacher.
  • The school’s local authority.
  • If your ‘home authority’ (ie. the local authority in charge of the area where you live) is different from the school’s local authority, they should be informed as well.

What if it goes against us?

If the exclusion was permanent, you need to decide whether to keep fighting for reinstatement or try for a new school. If you choose to fight, what do you do next?

The governing body notice

The first thing to do is go over the letter you’ve had from the governing body. It should include the following things:

  • Confirming that the exclusion is permanent.
  • Your deadline to apply for the decision to be reviewed – that is, 15 days from the date on which you were given notice in writing.
  • The name and address of the place where you’ll have to submit your application, along with any written evidence
  • Advice that the application should set out the reasons why it’s being made. Where appropriate, these reasons may include how you believe your child’s autism is relevant to the exclusion.
  • That you have a right to get the local authority/academy to appoint an SEN expert to attend the review meeting. (More details about that below, scroll down to ‘The SEN expert’). You have this right whether or not your child has a diagnosis, or whether the school recognises his/her special needs.
  • A description of the SEN’s role (again, scroll down to ‘The SEN expert’ for more info).
  • The fact that you don’t have to pay for the SEN expert yourself.
  • That if you want an SEN expert appointed, you should make that clear in your application for review.
  • That you can bring a friend to the review.
  • That you can appoint someone at your own expense to make representations to the panel. That is, you can get someone either to speak to them or to write a report or letter supporting your case.

Take advantage of anything you can; the stronger you can make your case, the better. All of this will be taken to an independent review panel (IRP) – see below.

If you believe there’s discrimination at work

It may well be that you think your child has been discriminated against because of his or her autism. In that case, you should include this opinion when you’re making your case to the IRP. However, you don’t have to rely entirely on the IRP: you also have the right to make a claim under the Equality Act of 2010 to the First-tier Tribunal (Special Educational Needs and Disability).

The deadline for a claim is six months after the discrimination took place. (For instance, the day your child was excluded.)

Going to the Independent Review Panel (IRP)

An IRP is a group organised by the local authority or academy trust responsible for dealing with your school. There will be either three or five members, depending on what the local authority/academy trust decides. The makeup of the panel must include:

  • One lay member, who acts as chair. ‘Lay’, in this case, means they’ve never worked for a school in any paid capacity (though they might have been a school governor or worked as a volunteer).
  • Either one or two school governors. This doesn’t mean the governors of your school: it means people who’ve served as governors to other schools for at least 12 consecutive months in the last five years. They can’t have been teachers or headteachers during that time.
  • Either one or two headteachers (again, not your headteacher), or people who’ve worked as headteachers within the last 5 years.

In other words, the chair is someone from outside the school system, and the other members are expected to have some expertise in how a governor or head should do their job.

It’s also possible that a clerk may attend. This is someone whose job it is just to attend the proceedings and take minutes – including when the panel deliberates, when you won’t be there – and to make sure they comply with the procedure, legislation and statutory guidance.

Appointing an SEN expert

As well as the three or five usual members, an IRP panel can include an expert on special educational needs. They won’t be automatically included, but you have the right to request one, and if your child is dealing with autism it’s usually a good idea.

Do I have to pay for the SEN expert myself?

No; even if it’s you who requests them, their costs will be covered by the local authority or academy trust responsible for the school.

Do we need a Statement/EHCP or a diagnosis to request a SEN expert? What if the school thinks my son/daughter doesn’t have special needs at all?

If the school/academy doesn’t recognise that your son or daughter has special educational needs, but you’re sure he or she does, you still have the right to request an SEN expert. In fact, this is a situation where a SEN expert is particularly valuable: part of their job will be to tell the panel if they think the school has acted in a legal, reasonable and procedurally fair way when it comes to assessing special needs, and whether the way they’ve handled it might have contributed to the circumstances leading up to the exclusion. 

The timing of an IRP review

If the governing body uphold the exclusion, you have the right to ask for an IRP to review the decision. You have to get your request in:

  • Within 15 school days of the governing body’s decision to uphold the exclusion, or
  • Within 15 school days of the final decision about the exclusion if you’ve made a claim of discrimination under the Equality Act of 2010.

What can going to an IRP achieve?

The IRP’s job is to judge the decision the board of governors made. One knock-on effect of this, though, is that they don’t get to judge directly on the decision the school made – which is to say, they can’t tell the school to reinstate your son or daughter. Instead, they focus on how the board of governors dealt with that decision, and any decision made by the IRP goes directly to the governors. If the governors change their decision, it’s them, not the IRP, who will give instructions to the school.

This means, at its simplest, that the IRP can’t decide if the exclusion was legitimate or not. What they can do is decide whether the board of governors did right when they decided to uphold it.

1. The IRP can uphold the decision to exclude.
When does this happen?

This happens when the IRP can’t find any grounds for rejecting the governors upholding the exclusion: there’s no evidence that the decision was ‘flawed’ (see below).

What does it mean for us?

It’s pretty much the end of the road; you can’t go back to the IRP. You could, if you were really determined, challenge the decision by applying for a Judicial Review. There are drawbacks to this, though:

  • It’s not available in all cases.
  • You’d have to seek independent legal advice, which means paying lawyer’s fees.
  • You’d have to act fast, as there are strict time limits.

You might still carry on a claim of discrimination if you’re going to tribunal or County Court (see above), but the IRP’s decision may make your case harder to establish. At this point you’re likely to have little choice but to find your child a new school.

2. The IRP can recommend that the governors reconsider their decision.
When does this happen?

This usually happens when there’s evidence that the governing body’s decision had some problems that justify a reconsideration, but didn’t meet the full criteria for being ‘flawed’ (see below).

What does it mean for us?

The governing body has to follow the same procedure as they would if their decision was quashed (see below). The difference is that if they’ve only been recommended to reconsider, their decision to uphold still stands when they start.

3. The IRP can quash the decision and direct that the governing body considers the exclusion again.
When does this happen?

The decision gets quashed (ie cancelled) when the IRP decides that it was ‘flawed’. There are three tests they apply:

  • Illegality: When they decided to exclude your son or daughter, were the headteacher and/or the governing body acting outside the scope of their legal powers?
  • Irrationality: Was the governors’ decision not to reinstate your son or daughter so unreasonable that a sensible person couldn’t have made it?
  • Procedural impropriety: Was the process of exclusion and the governing body’s decision so unfair or flawed that justice was clearly not done?

In which case:

As in the case of a recommended reconsideration, the governing body must arrange to reconsider within 10 days of getting notice of the IRP’s decision.

Once they’ve reconsidered and come to their new decision – which might or might not be in your favour – they have to notify, in writing and without delay:

  • You.
  • The headteacher.
  • The local authority.
  • If you live under a different local authority from the one that manages your child’s school, your ‘home authority’ should be notified as well.

What if the governing body still upholds the exclusion after they’ve been ordered to reconsider?

Sadly, this puts you in the same position you’d be in if the IRP upheld their decision the first place: you’re pretty much out of options except looking for a new school.

Unofficial exclusions

The law dictates that a child should not be denied full access to education just because he or she is dealing with autism. Unfortunately, some families find that their son or daughter hasn’t been officially excluded, but is being left out nonetheless. For instance:

  • The child gets emotional or has a meltdown, and is sent home to ‘cool off’.
  • There’s an Ofsted inspector coming or an open day coming up, and the school asks if the child could stay home just for the day to keep out of the way.
  • There’s a school trip or event planned which could be a challenge for the child, and rather than making the necessary arrangements for support, the school suggests the family would ‘prefer’ to keep him or her at home while it’s happening.
  • The child has difficulty managing in unsupervised break times, and so is sent home for lunch.
  • The child hasn’t mastered toileting and still needs nappies; rather than finding a willing and suitable staff member to deal with personal care, the school sends the child home to be changed, meaning they miss class.

If any of these sound familiar, your child may have already faced unofficial exclusion – also known as informal exclusion. Also, as any school should be aware, known as unlawful exclusion.

These exclusions are kept off the record – with good reason, as they’re illegal, and couldn’t be justified if the school did have to record them. It’s worth noting that the staff themselves often aren’t fully aware that they’re breaking the law: the usual attitude is that they’re simply suggesting something that’s ‘best for everybody’, and that a reasonable parent should see that it’s fair and do their bit.

In reality, these situations are never what’s ‘best for everybody’: they aren’t best for the child, or for the child’s family. Schools caring for children with special educational needs have a duty to provide that child a full-time education just as they would with any other child. They have a right to apply for extra help for the child if he or she has an EHCP, and they have the right to request the child be assessed if they think an EHCP is needed – but they don’t have a right to exclude them unlawfully.

The key here is to know your rights and make sure the school knows them too. Your rights are simple:

  • Your child has the right to a full-time education, autism or not.
  • If your child is being sent home for any reason other than sickness or injury, or a general problem in the school that affects everybody such as a fire, they’re being excluded.
  • No child should be excluded except for disciplinary reasons, and that should go through the formal exclusions process.

Our exclusions guide for parents

Where can I get help with all this?

Challenging an exclusion can pit you, a private individual with a lot on your hands already, against an established bureaucracy, and is always going to be a strain. The professionals have colleagues to help and advise them, so it’s a good idea to seek some advice and support for yourself as well. Some good places to go for help are:

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