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FAQs - new exclusions statutory guidance

6 September 2017

This FAQ covers the new exclusion statutory guidance (2017) issued by the Department for Education (DfE) replacing the 2012 version. This FAQ answers some of the key questions that schools and academies are likely to have on the new guidance.

These FAQs provide general guidance only. If you have concerns or questions about a potential exclusion, please feel free to contact us to discuss your specific circumstances.

When does the new statutory guidance come into force?

The new guidance comes into effect from 1 September 2017. Any exclusion issued before 1 September 2017 which is still subject to review would need to be considered under the 2012 statutory guidance.

Does the new statutory guidance change the exclusions process?

Whilst the new guidance makes changes to certain aspects of the exclusions process, the legal framework for excluding a child remains as it was before; the overarching legislation and regulations (The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012) remain unamended.

What is the key change we need to be aware of?

The new guidance places a much greater emphasis on the role of the governing board in the exclusions process. In a multi academy trust although the legal responsibility for reviewing exclusion decisions rests with the board of trustees, they may decide to delegate decision-making to a local governing body. Where required to do so, the governing board must meet to consider the exclusion by the head teacher – which is nothing new. However, the new guidance makes very clear that the focus of the Independent Review Panel (IRP) must be on the decision of the governing board, rather than the head teacher. It is therefore essential that governors actively consider the facts, test the evidence, properly consider all relevant policies, and check whether all procedures were followed given that it is their decision that will be scrutinised at the IRP stage. At least one member of the governor panel will need to attend any IRP in order to explain the decision taken by the panel and answer any questions.

How should we prepare for this change?

Given the focus of the new guidance, we recommend that governors undertake training on the exclusions framework to adequately prepare themselves for the greater focus on their decision-making. If they do not apply the correct legal tests or fail to follow due procedures, they risk their decision being quashed by an IRP and will have to re-take the decision with a presumption of reinstatement, or face a £4,000 fine. 

Schools will also have to review any exclusion letters that they send out as the guidance required some additional information to be sent out to parents following an exclusion.

What other changes have been made?

The new guidance has also made changes to clarify some of the existing rules and procedures such as converting/extending exclusions, the process for reconsideration of the governors’ decision and adding further guidance on the funding that follows a permanently excluded pupil. 

There is also new non-statutory guidance for head teachers at Annex B which provides advice on the procedures that need to be in place before excluding a child and the process to follow after an exclusion and an additional FAQ section at Annex C for parents, which answers some key questions that parents are likely to have.

Is there any change to the role of the SEN Expert?

Most of the provisions around Special Educational Needs (SEN) experts remain the same and parents are still able to request a SEN expert at the IRP stage regardless of whether the school believes the child has SEN. The new guidance now allows the SEN expert to provide advice to the IRP in writing, if parents agree. However, parents still have a right to request the SEN expert attends the hearing and are able to request an adjournment until the SEN expert can attend if the hearing is in progress. This suggests that the apparent flexibility is unlikely to be of much use to local authorities/trusts organising IRPs.

Where can we obtain further help with exclusions?

Browne Jacobson can assist you in a number of ways relating to exclusions, including supplying model exclusion letters, providing training to staff, governors or Independent Review Panel (IRP) members, clerking Independent Review Panels, providing advice on exclusions (including checking letters) or representing the school at either the governors’ or IRP stage. Please get in touch if you need any assistance.

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