School Exclusion Appeals

The law requires maintained schools and academies to follow a prescribed procedure when deciding whether to exclude a pupil. 

That procedure includes offering the pupil a right of appeal to the governing body of the school or academy trust, and after that a right to seek a review of the exclusion by a review panel. During the procedure, those involved in implementing the procedure at the school or academy trust must have regard to the statutory guidance: Exclusion from maintained schools, academies and pupil referral units in England: statutory guidance for those with legal responsibilities in relation to exclusions (2017) (“statutory guidance”). 

Where a decision to exclude is taken and either the decision or process does not follow the statutory guidance, the decision will be unlawful and can be challenged by way of application to an Independent Review Panel.

Independent schools are not restricted by the same rules and procedures as apply to maintained schools and academies. However, an exclusion may be challenged by different means after consideration of the context of the exclusion and the contract between the school and the parents of the child.

The statutory guidance divides exclusions into two different types.

What are the different types of exclusion?

Fixed term exclusions - This is when a pupil is barred from a school for a fixed amount of time.

Permanent Exclusion - This is when a pupil is permanently barred from a school.

Parents may have heard the phrase “informal exclusion” being used. This term means any method used to bar a pupil from school for any period of time, except those permitted by law (i.e. a lawful fixed term or permanent exclusion). This could include a pupil being made to be out of school during lunch time or de-registering a pupil from school. “Informal exclusions” are unlawful and can be challenged by way of judicial review.

Who can exclude?

The power to exclude, whether for a fixed period or permanently, may only be exercised by the headteacher or an acting headteacher.

When can a pupil be excluded?

A decision to exclude a pupil can only be made on disciplinary grounds. The statutory guidance states that such a decision should only be made in response to a serious breach or persistent breaches of the school’s behaviour policy, and where allowing the pupil to remain in the school would seriously harm the education or welfare of the pupil or others in the school.

What happens if a decision is made to exclude?

Once a decision has been made to exclude, the headteacher must inform parents or if the individual excluded is over 18, the young person, in writing of:

1. the period of exclusion, or that it is a permanent exclusion if that is the case;
2. the scope of the right to make representations concerning the exclusion;
3. the reasons for the exclusion; and
4. the means by which representations should be made.

Where a pupil is of compulsory school age, the headteacher must also give notice to the parents that they must ensure that the pupil is not in a public place during school hours for the first 5 days following exclusion, and detail any arrangements that will be made to provide full time education to the pupil during the period of exclusion. 

It is the role of the governing body in maintained schools and the proprietor of an academy, in the context of exclusions, to decide whether to reinstate a pupil in circumstances where he or she has been excluded if the pupil:

1. has been permanently excluded;
2. has been excluded for a fixed term and as a result of the exclusion the pupil will lose the opportunity to take certain examinations, be excluded for more than 5 school days in any one term or be excluded for a total of more than 15 school days in any one term.

In those circumstances, the governing body or proprietor must consider whether to reinstate within 15 school days of receiving notice of the exclusion, regardless of whether the pupil or their parents seek a review. 

For fixed period exclusions where a pupil would be excluded for more than 5 but less than 15 school days in a term, the governing body or proprietor must consider within 50 school days of receiving the notice of exclusion whether the excluded pupil should be reinstated. However there is no requirement on the governing body or proprietor to do anything unless there has been representations from parents of the pupil. In the absence of such representations, the governing body or proprietor cannot direct the reinstatement of the pupil. 

Where a fixed term exclusion is for less than 5 days in any term, the governing body or proprietor must consider the exclusion if representations are made by parents, but there are no particular requirements as to timing, nor is there any power to reinstate. 

Challenging the decision of the governing body or proprietor 

Where a decision has been made to permanently exclude a pupil and the governing body or proprietor has decided not to reinstate, the decision not to reinstate may be reviewed by an Independent Review Panel (IRP).

An application for an IRP must be submitted in writing setting out the grounds of review within 15 school days of notice being given that the pupil is not to be reinstated. The time limit is extended where a claim is made first to the county court or the First-tier Tribunal under the Equality Act 2010 to 15 days after the final determination of such a claim. 

The IRP must consist of three or five members. 

Where it has three members, it must include:

• one lay member
• a headteacher (or a person who has held that position during the last 5 years)
• persons who are or have been (1) a governor of a maintained school, (2) a member of a pupil referral unit management committee or (3) a director or the proprietor of an academy,

provided that they have served in that capacity for at least 12 consecutive months within the last 5 years and have not been a teacher or a headteacher in any school during the last 5 years.

Where the IRP will have five members, it must have one person who is eligible to be a lay member (the lay member must also be the chair of the IRP) and two people from each of the other categories named above.

Dissatisfied with the decision of an independent review panel?

If a parent is dissatisfied with the decision of an independent review panel, there are options:

1. pursuing judicial review
2. making a complaint to the Local Government and Social Care Ombudsman. 

Pupils with special educational needs and looked after children

The statutory guidance states that as far as possible, headteachers should avoid excluding permanently any pupil with an EHCP or EHC plan, or a looked after child. It states that headteachers should assess in partnership with others whether additional support or an alternative placement may be required. This should involve assessing the suitability of provision for a pupil’s SEN.