During half term, the Department for Education (DfE) released updated exclusion guidance, taking effect from the end of the academic year. The update was prompted by changes in the Children’s Wellbeing and Schools Act (CWSA) relating to directions off-site that come into force at the same time.

As well as making the required changes, the DfE has also made a number of other updates, including changes to managed moves, examples of off-rolling and safeguarding separations, which we cover below.

Directions off-site

The changes brought about by the CWSA will bring academies into line with maintained schools, giving an explicit legal power to direct a pupil off-site to improve behaviour. Parental consent will continue not to be required, although it is of course sensible to seek the views of parents first. 

The regulations relating to directions off-site that currently apply to maintained schools will apply to academies, with some minor amendments. That includes a requirement to give parents two school days’ notice of the placement and its details.

A review will need to take place at relevant intervals in accordance with the regulations, and include the headteacher, parents and someone nominated by the board of trustees (who is not the headteacher, for example a trustee, local governing body member or central team staff member). If the pupil has an EHCP, the local authority will also need to be invited.

There will be transitional arrangements for pupils who were on a direction off-site at the point that the law changes on 26 July.

Managed moves

The section on managed moves has been updated to make clear that there cannot be a trial period, a point that has been in the DfE’s parent exclusion advice previously. A direction off-site can be used before a managed move, assuming it is to improve behaviour, with the pupil being dual registered for that period.

However, one element that is new is clarification that a managed move cannot override a school’s in-year admissions process. A school that is full or has a waiting list will not be able to admit a pupil on a managed move unless that pupil would be at the top of the waiting list. 

The 'managed’ part is simply that the move has been brokered by the home school, with the usual in-year process followed. It is not clear how this would work if the pupil were already on the school’s roll via a direction off-site, and the guidance does not clarify that point. In areas where schools are full, this interpretation is likely to make managed moves more difficult, given they are based on reciprocity that will now be harder to achieve.

There can be an interaction here with the Fair Access Protocol (FAP) process, and we await a consultation on a new Admissions Code in the autumn, but in our view FAP is for pupils without a school place, not those at risk of exclusion. 

Off-rolling

The list of examples of school actions that could constitute off-rolling has been expanded. As with all off-rolling considerations, the distinction hinges on the reason for decisions like directions off-site, post-16 study options or a part-time timetable. Care should be taken to ensure that each of those decisions is in the best interests of the pupil concerned.

Safeguarding separations

The DfE has also added a section on safeguarding separations of pupils. This follows a case in 2021 that confirmed schools could direct off-site for safeguarding reasons. This is distinct from an exclusion or suspension and would be used in 'rare' cases where there is an allegation of harm from one pupil against another that requires them to be separated. It is likely most appropriate in instances of sexual misconduct allegations.

Schools will need to follow Keeping Children Safe in Education statutory guidance, but it should only be used where it is essential for the pupils to be separated, the headteacher doesn’t believe both pupils can be kept separated on school site, and where the school is unable to reach a decision on a sanction. 

Instances we have come across include where there is an allegation of rape and the police are planning to interview both pupils, meaning the pupils cannot be spoken to by school staff at that point about the allegations. 

Any decision would need to be time limited, with the LA responsible for arranging education if the parent or school were not providing it. While this will not be an exclusion, parents will be able to complain about it via the school’s complaints process.

Other changes

Smaller changes have also been made, including clarification at paragraph 10 to make it clearer that it is not unlawful to decide during a suspension, based on a further investigation, that a suspension is not a sufficient sanction and issue a permanent exclusion. 

While earlier in the year the DfE said it was going to expand on the use of 'internal suspensions', this update contains no clarification on that. We expect this to come in a subsequent update.

Actions for schools and academies

• Update policies: Academies should update their policies to reflect the new explicit legal power to direct pupils off-site, ensuring two school days' notice is given to parents and that review meetings include the required attendees (headteacher, parents, and a trustee nominee).
• Review current directions off-site: Consider the transitional arrangements that will apply when the law changes on 26 July and plan accordingly.
• Review managed move processes: Ensure managed moves do not bypass the in-year admissions process and remove any references to trial periods from internal guidance.
• Remind staff of off-rolling risks: Revisit the expanded list of off-rolling examples and ensure all relevant decisions are documented as being in the pupil's best interests.
• Understand safeguarding separations: Familiarise senior leaders with the new guidance, ensuring any separation is time-limited and that the complaints process is accessible to parents.
• Note the position on escalating sanctions: It is lawful to escalate from a suspension to a permanent exclusion following further investigation during the suspension period.

Our exclusions support pack will be updated by early July to reflect the changes, ready for the new school year. We also offer exclusions training sessions for school leaders to stay up-to-date with statutory guidance.