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Excluding a pupil

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Last updated on 21 August 2018
School types: All · School phases: All
In-depth article
Download our flowchart to help you understand the exclusions process and read about the lawful basis for excluding a pupil and information on the headteacher and governing board's responsibilities.

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Contents

  1. 1 When a pupil can be excluded
  2. 2 Unlawful reasons for exclusion
  3. 3 Headteachers' responsibilities
  4. 4 Governors' responsibilities
  5. 5 Exclusions process: flowchart
  6. 6 Internal exclusions

When a pupil can be excluded

A pupil may be excluded for one or more fixed periods, up to a maximum of 45 school days in a single academic year. They can also be excluded permanently. 

Headteachers can only take the decision to permanently exclude a pupil:

  • In response to a serious breach, or persistent breaches, of the school's behaviour policy; and

  • Where a pupil’s behaviour means that allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school

The statutory exclusions guidance doesn't set a limit on how long after an incident a headteacher can exclude a pupil. A representative from the DfE confirmed this, but added that the decision to exclude must be lawful, rational, reasonable, fair, and proportionate. 

In exceptional cases, a further fixed period or a permanent exclusion to begin immediately after the end of the first fixed period can be issued. This is usually where further evidence has come to light. 

This information is set out in statutory guidance from the Department for Education (DfE) which applies to all maintained schools, academies, and pupil referral units in England. The guidance also applies to pupils above or below compulsory school age, such as those attending nursery classes or sixth forms. The guidance is based on the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. 

Behaviour outside of school

Pupils can be excluded for their behaviour outside of school, but this must still be in line with the school's behaviour policy. 

This is set out on page 4 of the statutory guidance. 

Excluding a pupil in the sixth form

Pupils over compulsory school age are able to be excluded, but this must be for behavioural reasons. 

Our associate education expert, Emma Swann, confirmed that asking a student to leave for a non-disciplinary reason, such as academic attainment, would constitute an exclusion, and is prohibited under the guidance. A school can set specific academic standards for entry to year 12, but the expectation is that the student will progress to year 13. They cannot be asked to leave the school for failing to reach a certain academic standard at the end of year 12. 

This does not apply to sixth form colleges, as they set their own exclusion policies.

Unlawful reasons for exclusion

It's unlawful to exclude a pupil for non-disciplinary reasons such as:

  • The actions of the pupil’s parents
  • The pupil having additional needs or a disability that the school feels unable to meet
  • Academic ability or attainment
  • The pupil failing to meet specific conditions before they're reinstated

However, pupils who “repeatedly disobey their teachers’ academic instructions” could be subject to exclusion.

Informal or unofficial exclusions are always unlawful. (For example, sending pupils home "to cool off".)  Any exclusion of a pupil, even for short periods of time, must be formally recorded.

This is explained in paragraphs 13 and 14 of the statutory guidance. 

Headteachers' responsibilities

Only the headteacher or acting headteacher of a school can authorise exclusions. They can withdraw an exclusion if it hasn't been reviewed by the governing board. 

When excluding a pupil, headteachers must:

  • Take account of their legal duty of care when sending a pupil home following an exclusion
  • Apply the civil standard of proof and not the criminal standard of “beyond reasonable doubt” when establishing the facts relating to an exclusion. This means that if something is more likely than not to have occurred (“on the balance of probabilities”) then the standard is met
  • Consider a school's responsibilities under the Equality Act 2010 when deciding whether to exclude a pupil. They must not discriminate against, harass or victimise pupils because of their sex, race, disability, religion or belief, gender reassignment, sexual orientation or pregnancy/maternity
  • Take account of any contributing factors that are identified after an incident of poor behaviour has occurred. For example, the pupil may have suffered a bereavement or been subject to bullying

Although the decision to exclude rests with the headteacher, where practicable they should give the pupil the opportunity to present their case.

Notifying parents, governors and the LA

A headteacher must notify parents, governors and the LA about exclusions. Read more about the details of this, as well as the responsibility to arrange education for pupils who have been excluded. 

Governors' responsibilities

The governing board must consider the reinstatement of an excluded pupil in the case of:

  • All permanent exclusions
  • All fixed-period exclusions of pupils who have been excluded for more than 15 school days in the term, or who will have been as a result of the exclusion
  • All fixed-period exclusions that would result in a pupil missing a public examination or National Curriculum test
  • All other fixed-period exclusions where a pupil would be excluded for more than five school days in the term and their parents have made representations

Read further information on this, including timescales

Exclusions process: flowchart

We've created a flowchart setting out the process schools must follow when excluding a pupil, either permanently or for a fixed period.

To download a copy of the flowchart, click the following link:

Internal exclusions

The DfE's guidance doesn't apply to internal exclusions. 

Previous guidance explained that internal exclusion is an internal process and is not counted as an exclusion as the pupil is still on-site. 

This guidance was published by the predecessor to the DfE, the Department for Children, Schools and Families (DSCF), and is now available in the Institute of Education (IoE) Digital Education Resource Archive (DERA). 

There's no statutory maximum period for internal exclusion, but if a school is regularly using internal exclusions, it should look at the pupil's learning and behaviour needs.  

Informing governors

Our associate education expert, Gulshan Kayembe, said the governing board should receive information on the number of significant behaviour incidents in the school, including the number of times internal exclusion has been used, on a "routine basis". 

Governors should ensure that the school is not using internal exclusions simply as a way to reduce formal exclusion. Its use should have a positive impact on behaviour levels in the school.

Sources

Emma Swann specialises in education law at Paris Smith. She advises maintained schools and academies on a wide range of issues including admissions, exclusions, safeguarding, governance, and academy conversion.

Gulshan Kayembe is an independent consultant who has experience of inspecting schools. As a consultant, she provides mentoring for senior leaders and has worked as an external adviser on headteachers’ performance management.

 

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