Introduction
Substantive changes
Part three: The headteacher’s power to suspend or permanently exclude for headteachers, academy principals and teachers in charge of pupil referral units
Part four: Factors to consider before making a decision to exclude
Part five: The headteacher’s duty to inform parties about an exclusion
Part six: The governing board and local authority’s duties to arrange education for excluded pupils
Parts seven to thirteen
More information
 

Introduction

The Department for Education (DfE) has updated its guidance on suspensions and exclusion for maintained schools, academies, and pupil referral units in England. The guidance also covers pupil movement. It applies from 1 September 2023.

The guidance runs concurrently with the changes to the Behaviour in Schools guidance which we have provided a member briefing on. The suspensions and exclusion guidance should only be necessary when strategies, practices and interventions outlined within the Behaviour in Schools guidance have not been successful in improving a pupil’s behaviour. It may also be that the use of more significant interventions or sanctions are needed by a school.

The following member briefing encapsulates the main points that schools need to be aware of with regard to suspension and exclusion. We would recommend that this briefing is read alongside the updated guidance. When reading our briefing and the DfE guidance, it should be noted that previously used terminology has now been changed:

• a temporary exclusion or fixed-period exclusion is now a ‘suspension’; and

• a permanent exclusion is now just an ‘exclusion’.

It should also be noted that the guidance explicitly states that schools and local authorities should not adopt a ‘no exclusion’ policy. This can lead to schools finding inappropriate alternatives to exclusion, even when this may be the best way for a pupil to access Alternative Provision (AP).

Substantive changes

The guidance sets out the changes that have been made in this edition of the publication. These include:

• new guidance and amended regulations about a headteacher’s ability to cancel an exclusion before the governing board has met to consider whether the pupil should be reinstated. This practice is sometimes referred to as withdrawing or rescinding a suspension or exclusion. If this occurs, parents, the governing board and the local authority should be notified, as well as the social worker and Virtual School Head (VSH) where applicable. The guidance sets out further information on other actions that should take place following a cancelled exclusion in paragraph 13;

• governing board reinstatement meetings and IRPs can now be held via the use of remote access, for example via live video link, for suspension and permanent exclusions if requested by the parents. This is on the basis of certain criteria being satisfied. Meetings held through the use of remote access should not be a default option. Face to face meetings should always be encouraged. Further information on this is set out in part eleven.

Updates made to the Suspension and Permanent Exclusion guidance in 2022 which remain in the latest edition were:

• headteachers may cancel an exclusion that has not been reviewed by a governing board. This practice is sometimes referred to as withdrawing or rescinding a suspension or exclusion. If this occurs, parents, the governing board and the local authority should be notified and, where applicable, the social worker and Virtual School Head (VSH);

• when headteachers suspend or permanently exclude a pupil, the guidance now states they must, without delay, notify parents. Legislative changes mean that if a pupil has a social worker, or if a pupil is looked after, the headteacher must now, also without delay after their decision, notify the social worker and/or VSH if applicable;

• headteachers must also notify the local authority without delay when a pupil is suspended or permanently excluded. Legislative changes mean this must be done irrespective of the length of a suspension;

• guidance on the role of a social worker and VSH during governing board meetings and IRP meetings;

• an exploration of managed moves, what they are and how they should be used;

• clarified information on the use of off-site direction as a short-term measure that can be used as part of a school’s behaviour management strategy;

• further advice on the practice of pupil involvement, so that any excluded pupil is enabled and encouraged to participate at all stages of the suspension or exclusion process. Participation takes into consideration their age and ability to understand; and

• guidance for governing boards to ensure they review data on the level of pupil moves and the characteristics of pupils who have been permanently excluded. This is to ensure the sanction is only used when necessary as a last resort.

Schools are also reminded of their duties under the Education and Inspections Act 2006, the Equality Act 2010 and Children and Families Act 2014.

Part three: The headteacher’s power to suspend or permanently exclude for headteachers, academy principals and teachers in charge of pupil referral units

The guidance recognises that suspension and exclusion are sometimes a necessary sanction to ensure the creation of a calm, safe and supportive learning environment.

Only a headteacher of a school can suspend or permanently exclude a pupil on disciplinary grounds. A pupil may be suspended for one or more fixed periods up to a maximum of 45 school days in a single academic year. A pupil’s behaviour outside school can be the reason for a suspension or exclusion.

Any decision of a headteacher must be made in line with the principles of administrative law, so it must be lawful under the legislation relating directly to suspensions and exclusions, and a school’s wider legal duties. It must also be reasonable, fair and proportionate. A headteacher must also take account of their legal duty of care when sending a pupil home following an exclusion.

Headteachers should take into account the pupil’s views, considering these with regard to their age and understanding, before deciding to move to exclusion, with reference to the UNCRC. This is unless it would not be appropriate to do so. The pupil should be informed as to how their views have been taken into account in any decision made.

If relevant, the pupil should be given support to express their view. This could include parents or a social worker if the pupil has one.

A headteacher should also take account of any contributing factors identified after a behaviour incident. It may still be, however, that an exclusion is an appropriate sanction.

Suspension

The guidance identifies a suspension - in which a pupil is temporarily removed from a school - as a key tool within behaviour management and it should be set out within a school’s behaviour policy.

Pupils must still receive their education during a suspension. A headteacher should take steps to ensure that work is set, and marked, during the first five school days of a suspension. Online resources such as Oak National Academy can be utilised.

A school’s legal duty to pupils with disabilities or special educational needs and disabilities (SEND) remain in force, such as making reasonable adjustments to ensure they are supported during a period of suspension.

A suspension can be part of the school day; for example, if a pupil’s behaviour is disruptive at lunchtime, they can be suspended from the school premises for the duration of the lunchtime period. A headteacher’s duty to notify parents would still apply in all cases. And, for the purposes of determining if a governing board meeting is triggered, lunchtime suspensions are classed as half a school day.

The law does not allow for extending a suspension or converting it to become an exclusion. In exceptional cases, normally where there is further evidence of behaviour that warrants additional sanctions, a further suspension may be issued to begin immediately after the first period.

Exclusion may also be issued to begin immediately after the end of the suspension, if this meets the principles of administrative law set out above.

Exclusion

The guidance sets out that the decision to exclude a pupil permanently, where they are no longer allowed to attend a school (unless they are reinstated), should only be taken in two instances. These are:

• in response to a serious breach or persistent breaches of the school’s behaviour policy; and

• where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others, such as staff or pupils in the school.

As with suspensions, headteachers should take reasonable steps to ensure that work is set and marked for pupils during the first five school days where they will not be attending AP.

Cancelling exclusions

A headteacher can cancel an exclusion that has already begun, but this should only be done where it has not yet been reviewed by the governing board. Parents, the governing board and the local authority should be notified without delay in these situations, along with the social worker and VSH if applicable.

Parents should be offered the opportunity to meet with the headteacher to discuss the circumstances that led to the cancellation of the exclusion.

Setting a clear process for exclusions

The guidance provides a list of considerations for headteachers when setting a clear process for exclusions. These can be read on page 14 of the guidance. The same section also provides a list of examples of the types of circumstances that may warrant a suspension or exclusion. It is a non-exhaustive list, intended to offer examples rather than be definitive.

Off-rolling and unlawful exclusions

Any exclusion of a pupil, even for short periods, must be formally recorded.

It is unlawful to exclude a pupil simply because they have SEN or a disability that the school feels it is unable to meet. Other unlawful exclusions include academic attainment or ability or the failure of a pupil to meet specific conditions before they are reinstated. Where unlawful exclusions are carried out and lead to the deletion of a pupil’s name from the register, this is known as ‘off-rolling’.

A further example of off-rolling would be putting a parent under undue pressure to remove their child from the school, under the threat of exclusion, and encouraging them to choose elective home education or to find another school place.

Additionally, an informal or unofficial exclusion, such as sending a pupil home ‘to cool off’, is unlawful when it does not follow the formal school exclusion process and regardless of whether it occurs with the agreement of parents.

Safeguarding, including guidance concerning pupils who have abused another pupil

Schools have a statutory duty to make arrangements for safeguarding and promoting the welfare of their pupils. All schools must have regard to Keeping Children Safe in Education.

The guidance states that schools have a statutory duty to co-operate with safeguarding partners once designated as relevant agencies. Safeguarding partners are also expected to name schools as relevant agencies and engage with them in a meaningful way.

A school must make any decisions on a case-by-case basis, with the designated safeguarding lead or deputy taking a lead role.

Reintegration after a suspension or off-site direction

Schools should support pupils to successfully reintegrate into school life following a suspension or period of off-site direction. The guidance states that a reintegration strategy should be designed that offers the pupil a fresh start, while helping them to understand the impact of their behaviour on themselves and others. The strategy should also teach them how to meet the expectations of behaviour in line with the school culture.

This strategy should be clearly communicated at a reintegration meeting held prior to or at the beginning of the pupil’s return to school. Where possible, this meeting should include the pupil’s parents. However, if parents are unable or unwilling to attend, a pupil should not be prevented from returning to a mainstream classroom.

Where necessary, schools should work with relevant staff and multi-agency organisations to identify whether the pupil has any SEND and/or health needs.

A part-time timetable should not be used to as a behaviour management tool and must only be in place for the shortest time necessary.

Any pastoral support programme or other agreement should have a time limit. Once this is reached, the pupil is expected to attend education full time, either at school or AP. By agreeing to a part-time timetable, a school is agreeing to the pupil being absent from school for part of the week or day and must therefore categorise the absence as authorised.

This section sets out a list of suggested measures to support the pupil’s successful reintegration. The list is not exhaustive and contains suggestions such as daily contact with a school-based designated pastoral professional.

Part four: Factors to consider before making a decision to exclude

Page 29 of the DfE’s Behaviour in School’s guidance sets out initial intervention strategies. In addition, headteachers should also consider:

1. an off-site direction (temporary measure); or

2. managed moves (permanent measure) as preventative measures to exclusion.

Use of AP should be based on the understanding of the support a pupil needs in order to improve their behaviour, as well as any SEND or health needs. Off-site direction may be used as a method of improving future behaviour, rather than a sanction or punishment for past behaviour.

Regard must be given to the Alternative Provision: Statutory guidance for local authorities, headteachers and governing bodies by:

• a local authority arranging suitable education under section 19 of the Education Act 1996;

• the governing body of a maintained school making or reviewing an off-site direction under section 29A; and

• the governing body or academy trust of a maintained school, academy school or AP academy arranging suitable education for a suspended pupil under section 100 of the Education and Inspections Act 2006.

The nature and objective of the intervention, with a timeline to achieve these objectives, must be defined and agreed with the provider. This plan should then be regularly monitored and reviewed. Pupils must continue to receive a broad and balanced education, with a view to supporting their reintegration into mainstream schooling.

Off-site direction

Off-site direction is defined in the guidance as ‘when a governing board of a maintained school requires a pupil to attend another education setting to improve their behaviour’.

The legislation does not apply to academies. However, they can arrange off-site provision for the same reason under their general powers.

During off-site direction to another school, pupils must be dual registered. Code B should be used for any off-site educational activity, if the provision is an approved educational activity that does not involve the pupil being registered at any other school. Off-site direction into AP can be full time or part time with the remaining hours spent in mainstream education.

A proposed maximum period of time should be agreed upon during the planning for an off-site direction. This should also include the alternative options for consideration once the time limit has been reached. This could include a managed move on a permanent basis.

The governing board must comply with the Education (Educational Provision for Improving Behaviour) Regulations 2010 and must show regard to the Alternative Provision: Statutory guidance for local authorities, headteachers and governing bodies.

This guidance legally applies to maintained schools, not academies, although academy trusts are encouraged to follow this guidance.

The statutory guidance covers objectives and timeframes, along with appropriate monitoring of progress. For maintained schools, the governing board must ensure that parents - or the pupil if they are 18 or older - are notified in writing and provided with information about the placement as soon as practicable after the direction has been made. This must be no later than two school days before the relevant day.

The local authority must also be notified if the pupil has an Education, Health and Care (EHC) plan.

Managed moves

A managed move initiates the process to transfer a pupil to another mainstream school permanently. Managed moves should be voluntary and agreed with all involved parties. This includes the parents and the admission authority of the new school.

If a pupil has an EHC plan, the relevant statutory duties will apply to the new school and local authority. If the local authority, both schools and parents agree to the managed move, the local authority will need to follow statutory procedures to amend the plan.

The school receiving the pupil should ensure they are provided with an effective integration strategy.

If a parent believes they have been pressurised into accepting a managed moved, or is unhappy with it, they can raise this through the school’s formal complaints procedure with the governing board. Where appropriate, they can also take up the issue with the local authority. Ofsted will consider any evidence found of a parent being pressured into a managed move that has resulted in off-rolling. On the basis of such evidence, Ofsted is likely to judge a school as inadequate.

Variation in exclusion rates

National trends show that particular groups of children are more likely to be excluded from school. Local factors may affect this, and the guidance sets out that schools, local authorities and local partners should work together to understand what lies behind local trends. Targeted action should then be planned and implemented.

Pupils with disabilities and special educational needs

The Equality Act 2010 requires schools to make reasonable adjustments for disabled pupils. This duty can, in principle, apply both to the suspensions and exclusions process and any imposed disciplinary sanctions.

The Children and Families Act 2014 legislates that governing boards of relevant settings must use their ‘best endeavours’ to ensure the appropriate special educational provision is made for pupils with SEN. This includes any required support in relation to behaviour management because of their SEN.

Where a school identifies that a pupil with SEN, a disability or an EHC plan is at risk of suspension and exclusion, it should consider what additional support or alternative placement may be required. This should involve assessing the suitability of provision for a pupil’s SEN or disability.

If a pupil has an EHC plan, schools should contact the local authority at an early stage regarding behavioural concerns. A consideration should be given to an early annual review, prior to making the decision to suspend or permanently exclude the pupil.

Pupils who have a social worker, including looked-after children, and previously looked-after children

For children with a social worker, education can provide a safe space for them to access support, be visible to professionals and realise their potential. When children are not in school, they can be missing important protection and opportunities, as well as being more vulnerable to harm. The guidance recognises, however, that headteachers need to balance this with the need to ensure calm and safe environments for all pupils and staff. To achieve this, they should devise strategies that take both of these aspects into account.

Where a pupil has a social worker, the headteacher should inform their social worker, the Designated Safeguarding Lead and the pupil’s parents as soon as possible if they are at risk of suspension or exclusion.

If a looked-after child is facing suspension or exclusion, the Designated Teacher (DT) should contact the relevant VSH as soon as possible. The VSH, alongside the DT and others, should consider what additional assessment and support need to be implemented to help the school address the factors affecting the child’s behaviour. This may reduce the need for suspension or exclusion.

Where relevant, the school should also engage with the child’s social worker, foster carers or children’s home workers.

All looked-after children should have a Personal Education Plan (PEP). This should be reviewed every term and any concerns about behaviour should be recorded. How they are being supported to improve their behaviour and reduce their risk of exclusion should also be recorded.

Part five: The headteacher’s duty to inform parties about an exclusion

This section looks at the importance of those who are responsible for a child’s care being promptly informed when exclusions occur or when there is a risk of them happening. This ensures that a child receives the correct support and protection during a suspension or exclusion. It sets out how and when schools should and must share information with parents, social workers, VSH, local authorities and governing boards.

When a headteacher suspends or permanently excludes a pupil, they must, without delay, notify parents of the period of the suspension or exclusion and the reason(s) for it. Paragraph 63 of the guidance sets out what information must also be provided to parents in writing, again without delay.

This written notification can be provided by delivering it directly to parents, leaving it at their usual or last known address, or posting it to that address. Notices can also be sent electronically if the parents have given written agreement for this type of notice to be sent in this way.

If a pupil of compulsory school age is suspended or permanently excluded, the headteacher must notify the parents of the days on which they must ensure the pupil is not present in a public place at any time during school hours. These are the first five school days of a suspension or exclusion or until the start date of any full-time AP or the end of the suspension where this is earlier.

Any parent who fails to comply with this duty, without reasonable justification, is committing an offence. They may be given a fixed penalty notice or be prosecuted.

Paragraph 67 of the guidance sets out what information must be included with the notice, where it can be reasonably found out within the required timescale, if AP is being arranged.

If a child is suspended again following their original suspension, or is subsequently permanently excluded, the headteacher must inform parents without delay and, where relevant, the pupil’s social worker or local authority if the pupil has an EHCP. A new exclusion notice must be issued to parents and the social worker.

Informing parents about an exclusion

The guidance states that initial notification to parents should be in person or by telephone. This gives parents the opportunity to ask any initial questions or raise concerns.

The headteacher should set out what arrangements have been made to ensure the pupil can continue their education prior to the start of any AP or the pupil’s return to school.

Part five also includes information on informing social workers and VSHs about an exclusion, as well as the governing board and local authority.

Part six: The governing board and local authority’s duties to arrange education for excluded pupils

This section looks at the important role that governing boards and local authorities play in ensuring that children who have been excluded from school receive a suitable education, supporting their successful reintegration into education or meeting their long-term needs.

The statutory duty is on governing boards or local authorities to arrange full-time education from the sixth day of a suspension or exclusion. The guidance does also recognise that there is an obvious benefit to the pupil in starting this provision as soon as possible. For a looked-after child or a child with a social worker, the school and the local authority should work together to arrange AP from the first day following the suspension or exclusion.

Where it is not possible or appropriate to arrange this AP during the first five school days, the school should take reasonable steps to set and mark work for the pupil. The guidance gives the examples of Google Classroom or Oak Academy as ways of delivering this.

The guidance also details the checks that the chair of the governing body should make to ensure there are clear processes in place to comply with its legal duty to arrange suitable full-time educational provision for pupils of compulsory school age from the sixth consecutive school day of a suspension.

Parts seven to thirteen

Parts seven to thirteen look at some very specific issues:

• Part seven: The governing board’s duty to consider an exclusion;

• Part eight: The governing board’s duty to remove a permanently excluded pupil’s name from the school register;

• Part nine: The local authority/academy trust’s duty to arrange an independent review panel;

• Part ten: The roles of independent review panel members, the clerk, the SEN expert, the social worker, and the VSH in the conduct of an independent review;

• Part eleven: The governing board’s duty to reconsider reinstatement following a review;

• Part twelve: The local authority’s role in overseeing the financial readjustment/payment;

• Part thirteen: Statutory guidance to the headteacher, governing board and independent review panel members on police involvement and parallel criminal proceedings.

We would recommend members to read these sections if relevant to their role.

Part ten sets out that the three outcomes that can be reached following an independent review panel. The panel can decide to:

• uphold the governing board’s decision not to reinstate;

• recommend that the governing board reconsiders reinstatement; and

• quash the governing board’s decision and direct that the governing board reconsiders reinstatement.

This section also communicates that if a panel directs a governing board to reconsider reinstatement, it may order the local authority to adjust the school’s budget or (in the case of an academy) the academy trust to make an equivalent payment to the local authority in whose area the school is located. This is unless, within ten school days of receiving notice of the panel’s decision, the governing board decides to reinstate the pupil.

The sum of this adjustment/payment must be £4,000 and would be in addition to any funding that would normally follow a permanently excluded pupil. The panel does not have the power to order a financial readjustment or payment in circumstances where it has only recommended that the governing board reconsiders the reinstatement of the pupil.

For headteachers, there are also two key paragraphs in part thirteen offering guidance on police involvement and parallel criminal proceedings. These outline that a headteacher does not need to postpone taking a decision on a suspension or exclusion solely because a police investigation is under way. The same is true in a situation where criminal proceedings may be brought.

In all cases, schools should follow general safeguarding principles as found in Keeping Children Safe in Education.

Where evidence is limited by a police investigation or criminal proceedings, a headteacher should consider any additional steps that are required to ensure that the decision to suspend or permanently exclude is fair. However, the final decision on whether to suspend or permanently exclude a pupil lies with the headteacher.

More information

Further advice and guidance on behaviour management can be found and accessed through the NASUWT’s main Behaviour Management for Teachers in the Classroom page.

If you have a concern about the way suspensions and exclusions are managed in your school, or issues surrounding behaviour more widely, you should seek advice and support from the NASUWT immediately.

 

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