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National consultation on exclusions underway

8 February 2022

The Department for Education (DfE) has begun a consultation on the guidance around behaviour and exclusions. The consultation runs until 31 March 2022 and details on the proposed guidance and consultation questions can be found here.

The draft exclusions guidance does not make any changes to the overall structure of exclusions – the three main stages of headteacher decision, governing board review and, for permanent exclusions, independent panel review remain in place.

The most significant proposal is the change in terminology from ‘fixed-term exclusions’ to ‘suspensions’. The remainder of the changes relate to how exclusion decisions are made within the existing framework. The draft guidance proposes many more amendments to the role of the headteacher in making decisions and some key themes emerge:

  1. There is a greater emphasis on considering all relevant issues and communicating these with other relevant agencies prior to making an exclusion decision. There are clear pointers towards considering alternative provision or the use of directions to improve behaviour. In addition, for pupils in vulnerable groups, there are requirements to contact the local authority to obtain support from SEND and social care teams, or the virtual school head.
  2. The emphasis for planning prior to exclusions may be linked to the removal of the power to rescind or withdraw an exclusion by a headteacher, which is set out in the current guidance. This withdrawal has often been used where a change in circumstances or engagement from other agencies has resulted in a change of placement and therefore eliminating the need for an exclusion. If the proposals become the statutory guidance, that power will no longer be available and without work being undertaken prior to exclusion, may result in a greater number of exclusion decisions being taken through the whole process.
  3. The support for vulnerable pupils continues at the governing board and independent review stages of the process. Where the exclusion of relevant children is being considered, those bodies must invite either social workers or virtual school heads to the meetings.
  4. The draft guidance now includes clear references to off-site directions and managed moves as part of the pre-exclusion considerations for a headteacher. Guidance is provided on how these may be used to avoid the use of exclusion. We note that the DfE appears to have a narrower view of managed moves than may be prevalent in the education sector.
  5. The draft guidance sets out requirements for both headteachers and the governing board to ensure there are clear processes in place within school. The aim is to ensure that parents and children can fully participate in the exclusion process. Equally, the governing board are reminded of their duties to hold senior leaders to account and, in this case, to ensure the proper use of exclusion as a last resort. More widely, the guidance highlights a need for governors to take a wider look at the use of exclusion, attendance at alternative provision or off-site directions to consider whether the school is operating in the best interests of all its pupils or whether funding should be used to more effectively to support students or particular groups of students.

One additional point from within the consultation document is the proposal to retain the possibility of virtual meetings for governing board and independent panel reviews. Clearly, this approach has been permitted under the pandemic and the consultation asks the question whether it should become a permanent feature of the exclusions process and, if so, how should access to virtual hearings be managed.

Given the changes proposed and the potential need for schools to change how they approach exclusions, if the guidance is implemented in the current form, we are hosting a webinar on the 22 March to look at some of the changes in more detail and to answer your questions. Click here to register.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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