Last reviewed 27 September 2017

The new exclusions guidance will come into operation from September 2017. The changes aren’t substantial but they should be noted and applied. Suzanne O’Connell outlines some of the main points to be aware of.

This year, the Department for Education (DfE) consulted on the statutory guidance on exclusions. In July, they released their response: Exclusions from Maintained Schools, Academies and Pupil Referral Units in England: Government Consultation Response and the new statutory guidance: Exclusions from Maintained Schools, Academies and Pupil Referral Units in England: Statutory Guidance for Those with Legal Responsibilities in Relation to Exclusion.

This new guidance is already what schools should be referring to as it came into effect in September 2017. If you have not had chance to read the guidance yet or consider how it might apply to you, then you shouldn’t panic. The overall procedures are more or less the same as before. However, there are some amendments that it is important that you are aware of and apply, particularly in relation to the role of the governing body.

The governing board

Throughout the new document the DfE refers to the “Governing Board” rather than the governing body. In their glossary, they suggest that the use of this term is more comprehensive as it covers the governing body of a maintained school, management committee of a PRU and the academy trust of an academy. It is important to remember, therefore, that with this slight change, academies are included too.

However, it’s not just the change of name that should be noted here. There is also a change of emphasis on where the responsibility for exclusions lies. There is an expectation that the governing board has carefully reviewed the Head’s decision and that it’s the governing board who will need to address the Independent Review Panel (IRP) to explain it. Previously this has often been done by the Head. This new expectation needs to be drawn to the attention of the governing board, if they are not aware already.

The governor representative at the IRP hearing is likely to have a much greater role and needs to be up to speed on the decision and the reasons for it. This is not a passive role but one where governors will be expected to justify the decisions made both by themselves and the Head.

Fixed term means fixed term

The new guidance makes it clear that a fixed-term exclusion cannot just be extended or turned into a permanent exclusion. It must finish when it was indicated that it will finish and if another period of fixed-term exclusion is required or it should become permanent then this must be carried out as another exclusion.

Strictly speaking we are told, “the law does not allow for extending a fixed-period exclusion or ‘converting’ a fixed-period exclusion into a permanent exclusion”. However, it can be done where further evidence comes to light. It’s also possible to issue the new exclusion back to back with the old one. However, it must be treated as a new exclusion decision.

That is, unless it comes to the organising of arrangements for alternative education. The new guidance points out: “Where a child receives consecutive fixed-period exclusions, these are regarded as a cumulative period of exclusion for the purposes of this duty.” The governing board is then responsible for organising suitable full-time education from the sixth school day of exclusion whether this is as a result of one fixed-period or more.

“Civil standard of proof”

Exclusion decisions must often be made on partial evidence. There are few occasions where there is no possibility of an alternative version being available. This makes it particularly important for the Head to be aware of how much doubt there can still be as to the events of the case.

The new document explains in more detail what is meant by “civil standard of proof”. It means that “on the balance of probabilities” something is more likely to be true than not. The paragraph now reads:

When establishing the facts in relation to an exclusion decision the Head must apply the civil standards of proof, ie ‘on the balance of probabilities’ it is more likely that a fact is true, rather than the criminal standard of ‘beyond reasonable doubt’. This means that the Head should accept that something happened if it is more likely that it happened than that it did not happen.

The use of this principle for guidance applies not only to the Head when making the initial exclusion decision but also the governing body when it reviews the Head’s decision and the IRP members if the incident is taken this far too.

The independent review panel

It is now emphasised that the chosen venue for the review panel meeting must be accessible to all parties. The new guidance points out that the IRP should not change the way the panel operates if the parents are not seeking reinstatement for their child. Even where this is the case, they can still recommend that the governing board reinstate the pupil.

It is emphasised that panel members understand the legislation that is relevant to exclusions and the legal principles that apply. The tests that the panel should apply still include illegality, irrationality and procedural impropriety, but they clarify “irrationality” to include:

did the governing board rely on irrelevant points, fail to take account of all relevant points, or make a decision so unreasonable that no governing board acting reasonably in such circumstances could have made it?

As with some previous parts of the guidance, there is a change of responsibility indicated from Head and governing body to the governing board. It is important that governors are aware of this shift. For example, that they are given sole responsibility for making the decisions as opposed to it being shared with the Head.

This increases the importance of ensuring that the governing board keeps clear minutes and is able to explain the decisions that have been made and how they relate to the exclusions framework at the IRP meeting. It clarifies the stage of the process — first the Head makes the decision, this decision is then reviewed by the governing body and finally it is taken to the IRP if the parent chooses to do so.

Following an IRP decision, for a governing board to reconsider a decision they are expected to carry this out “conscientiously” and they do not need to seek further representations. More guidance is given on the process of reconsideration of reinstatement.

Removing from roll

Now it is the governing board who is responsible for making the decision to remove a permanently excluded pupil’s name from the school’s register. More detail is also included in this section to ensure that the governing board is aware that it must also have completed any reconsideration that the panel has recommended or directed it to carry out before the pupil’s name is removed.

It is also a requirement that a return is made to the local authority and that this must include the grounds upon which the pupil’s name is to be deleted. The return must be made as soon as the grounds for deletion are met.

Improvements

Overall, the clarifications in this new guidance document are to be welcomed. The responses to the consultation seem to endorse the tweaks that the DfE has made. Perhaps particularly welcome is the annex material which provides summary information about the responsibilities of the Head and governing boards and an additional explanation for parents.

School exclusion is an unpleasant business that has untold impact on the pupil and the family. It is right that procedures are clear and consistently applied. If this new guidance helps to ensure this is the case, then it is to be welcomed.