Advice on the New Exclusion Guidance From January 2015

City Law School

London
020 7040 3309
December 17, 2014
Sprung upon us, without a whiff of consultation, comes new statutory school exclusion
guidance. It will replace the current guidance for exclusions. It will be for all exclusions
that occur after January 5th 2015.
It is our view that the net effect of the changes is negative, setting a more permissive tone
towards exclusions. We set out below our findings on the new guidance.
GB: Governing Body (Stage 1 of an Exclusion Review)
IRP: Independent Review Panel (Stage 2 of an Exclusion Review)
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The Headteachers' Test has changed - be wary!

The key change is in the test that headteachers are to apply. The new test (para 15) is:
It is for the headteacher to decide whether a childs behaviour warrants permanent
exclusion, though this is a serious decision and should be reserved for:
a serious breach, or persistent breaches, of the school's behaviour policy; or
where a pupils behaviour means allowing the pupil to remain in school would be
detrimental to the education or welfare of the pupil or others in the school.
This replaces (old para 15):

A decision to exclude a pupil permanently should only be taken:

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 in the school.
There are 2 key changes here. First, it is no longer necessary that having the pupil remain
should 'seriously harm' the education or welfare of the pupil or others; it is sufficient that it
should be 'detrimental' (no requirement for serious detriment). Second, the word 'and' is
changed to 'or'. It is therefore now possible for a headteacher to exclude for behaviour which
does not involve a breach of the school's behaviour policy.
Taken together, these changes mean that a headteacher can exclude a child just because s/he
concludes (without reference to any policy) that the child's remaining at school would cause
some detriment to the education or welfare of the pupil or others.
Behaviour Outside School
There is also a change in relation to exclusion for behaviour outside school - there is no
longer any reference to the exclusion needing to be in accordance with the school's published
behaviour policy (para 1; cf para 3).
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Other important, and generally negative, changes:
- Para 14 sets the general tone of being permissive towards exclusions
- Para 16 slightly tones down the recommendation that a pupil should be allowed to present
his/her case before the headteacher decides to exclude
- paras 170-180 go into a bit more detail about GB hearings after an IRP has directed or
recommended reconsideration. One disappointing matter is that it is now stated that the GB is
not required to seek further representations from parents or invite them to the reconsideration
meeting
- paras 188-192 clarifies what may happen at the GB and IRP when a child is going through
parallel criminal proceedings.

Change from Statements to EHC Plans

- references to statements are replaced with EHC plans in paras 21-23, 43. For more
information about EHC plans, please see: http://www.specialneedsjungle.com/
Some positives
In addition to the greater clarity afforded to parents, we have noted the following
improvements:
- para 55 clarifies that a parent's representative must be allowed to make representations at a
GB meeting. We are hoping this lessens the much-felt hostility towards representatives.
- paras 137-139 clarifies the extent to which an IRP can take account of new evidence - on
balance, we think this is likely to help parents, particularly with regards to obtaining evidence
of SEN.
- paras 148, 151, 172, 180 clarify that decision-making should not be affected by the fact that
a parent does not want reinstatement. This has been a big problem in the past for parents, who
want to challenge the exclusion but under no circumstances want their child back in that
school. This reality will hopefully be better appreciated now by panels.
- The Public Sector Equality Duty (to eliminate discrimination) is significantly more detailed
and more robustly put than before. See para 7 - 9.
- Para 16 and 17 explicitly mention mental health as a causal factor for exclusion, again this
is more robustly put than in the previous guidance.
- The duty to make reasonable adjustments for children with disabilities, is also more clearly
put in the new guidance. See para 7.
What will come of this new guidance remains to be seen, but what is most important is that
we are ready for it. Please let parents and support groups know about these changes.
If you have any concerns about your child, please do not hesitate to get in touch.
City.matrix.schoolexclusions@gmail.com/ 020 7040 3309
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New Statutory Exclusion Guidance - Watch this space
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