Fixed term exclusion


The exclusion of any child from school is a dramatic and serious event. 

Exclusion from school means that a pupil is not allowed in school for disciplinary reasons. Exclusion can have a massive impact on the family too. It is not a decision to be taken for expedience or as an alternative to securing support through the statutory SEN system.
By francesco.rosati Nephogram Label 

The information below is based on changes to the law after September 2012 so it applies to exclusions after that date. It does not constitute legal advice but provides a summary of the law based on information available on the internet such as from the ACE and Coram Children's Legal Cente websites. Sources of specific advice are provided in the links below. 

Types of exclusion

The law governing exclusions is found in the Education Act 2002 and the Government Guidance “Exclusion from maintained schools, Academies and pupil referral units in England - A guide for those with legal responsibilities in relation to exclusion.” 

There are two types of exclusion:

  • Fixed period exclusion 
  • Permanent exclusion

Unusually,  a fixed period exclusion may be extended or converted to a permanent exclusion.


This prevents a pupil from being in school for a specified number of days because they have breached the school's behaviour policy. Most fixed period exclusions are for short periods of 5 days or fewer. Pupils who misbehave at lunchtime may be excluded for lunchtime only. Each lunchtime exclusion counts as half a day. Fixed period exclusions do not have to be for a continuous period. A pupil may be excluded for one or more fixed periods up to a maximum of 45 school days in a single academic year.

Who can exclude a child?

The only person who can exclude a child is the head teacher or the acting head if the head is not on site. The decision has to be on the ‘balance of probabilities’ rather than 'beyond all reasonable doubt'. This means the head must decide whether it is more likely than not that the pupil did what they are accused of. Where practical, a head teacher should allow a pupil to present their case before deciding whether to exclude. If the head hasn't done this, you should find out your child’s version of events and send this into school yourself.

Why can a child be excluded?

A child can only be excluded for disciplinary reasons and this should be in accordance with the school's behaviour policy which will set out the school rules. These rules will vary from school to school and may include behaviour outside school such as on school trips, or when in uniform.

Before excluding, head teachers should also take into account factors which may have cause the child's behaviour such as bullying, mental health issues unidentified SEN. The guidance is clear that early intervention should be used to address underlying causes of disruptive behaviour. Thus, the head should put in place multi-agency working for children known to be at risk of exclusion and school should be accessing the appropriate sources of help. Vulnerable groups, like looked after children, should be identified and supported. Exclusion should be a last not first resort.

In summary, a pupil must only be excluded on disciplinary grounds. The decision to exclude must be:
  • Lawful
  • Rational
  • Reasonable 
  • Fair; and 
  • Proportionate.
Exclusion letter

The school must write to you without delay (this should be on the first day of the exclusion) informing you of:
  • the reason for the exclusion
  • the length of the exclusion
  • your right to make representations in writing to the governing body
  • for longer exclusions, your right to go to a meeting of the governing body and put your views in person
  • If your child is of compulsory school age, you must be informed that about your responsibilities to keep your child at home during the first five days of the exclusion.
Unlawful exclusions

It is entirely unlawful to exclude for one of the following reasons:
  • the school cannot meet your child's SEN. Schools should look first at putting in place improved support or changing the nature of that support or consider whether a different school would be more suitable. See also the section on the Equality Act below.
  • the school asks you to keep your child at home to avoid excluding them and 'making it official'. This is unlawful, even if you consent. If there are disciplinary reasons for not wanting a child in school, the school must follow the formal process. Otherwise you lose your rights to make representations to the Governors.
  • the school thinks your child is not likely to get good exam results.
  • the school asks a parent to keep a child with SEN at home because it cannot support the child on a trip or activity
  • the school dislikes something a parent has done such as make a complaint at school.
  • the school cannot continue a period of exclusion by imposing conditions which need to be met such as apologising.
Education off-site and managed moves

Where a pupil has received multiple exclusions or is approaching the legal limit of 45 school days of fixed period exclusion in an academic year, head teachers should consider whether exclusion is providing an effective sanction. Maintained schools have the power to direct a pupil off-site for education to improve his or her behaviour (Section 29A of the Education Act 2002). They must inform the parents at least two days before the start of the placement and provide them with the following information:
  • the address at which the educational provision is to be provided for the pupil;
  • particulars identifying the person to whom the pupil should report on first attending that address for the purposes of receiving the educational provision;
  • the number of days for which the requirement is to be imposed;
  • the reasons for, and objectives of, imposing the requirement; and
  • the times of the sessions.
The  placement of this nature must be reviewed at least every 30 days and can't cannot continue past the end of the school year in which the placement started. 

A pupil can also be transferred for a fresh start to another school as part of a ‘managed move.’ This is an alternative to an exclusio and can eb for a trial period. It requires the consent of the parties involved, including the parents. The threat of exclusion must never be used to influence parents to remove their child from the school. 

Challenging the exclusion

Your rights depend on the length of the exclusion:
  • Write to the head during the exclusion asking for it to be withdrawn or shortened raising any information you think s/he might not have had and information which might alter the decision 
  • If the exclusion is for up to 5 days in any one term, you can write to the Governing Body of the school. There is no set time for their response and they do not have to arrange to meet you although you can ask. They are not likely to be able to consider this during the course of the exclusion so their decision will be retrospective. This means the exclusion cannot be deleted from the school record but the Governors can put a note on the school record to confirm that they agree that the exclusion was justified. 
  • If the exclusion is from 5.5 to 15 days in any one term, you have a right to make written representations and request a meeting with the Governors which must take place within 50 school days. The governors can reinstate a pupil either immediately or on a specified date 
  • If the exclusion is for more than 15 days in any one term (or the pupil will miss a public exam or national curriculum test), you have the right to make written representations and the Governors must meet to consider the exclusion within 15 school days. They can reinstate a pupil either immediately or on a specified date.If a child is facing a public exam, the Governing body should consider the exclusion before the date of the examination or test. If this is not possible, the chair of governors may consider the exclusion independently and decide whether or not to reinstate the pupil.
Preparing your case
    It is very hard to get Governors' to overturn a head's decision and you will need to prepare your case if you want to challenge the exclusion. You could start by gathering the following evidence:
    • getting legal advice or advice from one of the organisations below
    • obtaining a copy of your child's school file under the Data Protection Act - see the ICO's guidance here
    • asking for copies of any evidence relating to the exclusion
    • considering the Government guidance on exclusion, found here
    • obtaining copies of the school's behaviour and SEN policy
    You could then ask yourself the following questions:
    • Have the correct procedures been followed, e.g. did the head make the decision? Were you informed in writing without delay and did the letter give the reasons for the exclusion?
    • Were the reasons for exclusion lawful? Look at the examples of unlawful reasons above.
    • Look at the evidence from the school file and from the incident. Ask your child what happened.
    • Has the behaviour policy been applied fairly to your child? How are othjer children at school treated for similar incidents?
    • Are your child's SEN being met or have they been identified and properly supported? Do school understand your child's needs? Are they accesssing appropriate help? Schools must not exclude children simply because they have SEN.
    • Has the SEN policy been applied in your child's case?
    • Are there other factors affecting your child such as a bereavement or bullying?
    • Was your child's statement being honoured? If not, did this have any affect?
    • Could the exclusion be discriminatory? Was the behaviour your child is being excluded for a direct consequence of their disability? Could the school have made to avoid 'reasonable adjustments' which could have avoided the exclusion? What could they have done differently?
    • Was the exclusion proportionate? That means did it match the severity of the behaviour or was it too harsh. Could the school have done something else rather than exclude?
    During the exclusion

    The first five days: Schools should take reasonable steps to set and mark work for the first five days of any exclusion. The parent/carer must make sure the child is not in a public place without reasonable justification during school hours in the first five days. This duty is similar to that on school attendance and you could be fined if you breach it. The fine is £60 and goes up to £120 pounds if you do not pay within 28 days. Failure to pay within 42 days could lead to prosecution.

    After 5 days: If the exclusion goes beyond 5 days, the school has a duty to provide suitable full-time alternative education for children of compulsory school age no later than day 6. That is most likely to take place at a pupil referral unit or other alternative provision. If your child has a statement of special educational needs, the alternative provision must be able to meet the child’s needs as set out in the statement. The placement must be identified in consultation with parents.

    The end of the exclusion

    At the end of the exclusion, schools should have a strategy for reintegrating pupils after exclusion. This may involve a meeting with the head of year or other senior member of staff. You may wish to ask for extra support for your child and ask what the school plans to do in future to meet your child's SEN or, if you feel the behaviour demonstrates SEN which have not been properly identified, ask school to pursue this by accessing services, assessments or by an interim review of the statement if there is one.

    Remember as ACE say:
    Emotional and behavioural difficulties can also be a special educational need in their own right if they are preventing a child from accessing the curriculum.
    If it is suggested that children's behaviour is affected by things going on outside school then the guidance recommends a multidisciplinary assessment. This could be done under the Common Assessment Framework (CAF). You must note that this is entirely voluntary and you do not have to consent and you do not have to agree to information sharing about your child. However, if you feel this might help access services or assessments, you can request a CAF yourself through school.
    School may also consider a Pastoral Support Programme to set manageable short-term goals for improving the child’s behaviour. Your views should be taken, as should the child's if they are able to give them, and the programme may include behaviour support or mentoring.
    Young people between the ages of 14 and 16 may be able to access flexible learning which may include dropping some subjects or undertaking more vocational subjects  Any flexible programme should still be full-time.

    Children with special educational needs and disabilities are statistically more likely to be permanently excluded.

    Under the Equality Act 2010, children with disabilities have the right not to be discriminated against. Disability is a 'protected characteristic  under the Act. In order to fall under the protection of the Equality Act 2010, a pupil needs to be classed a ‘disabled’ for the purposes of the Act. A person is disabled if they have a physical/mental impairment which is long term (has lasted or will last for more than 12 months) and has a substantial effect on their ability to carry out normal day to day activities. See my post 'SEN, disability and human rights'.

    Exclusion from school is specifically covered by the Act. This does not mean that a school cannot exclude a pupil with a protected characteristic, but they must not do it just because for instance the child has a disability. School mjust be aware of the disability. See IPSEA's more detailed guidance 

    Schools must also make sure that their policies such as the behaviour policy or uniform policy do not unfairly disadvantage pupils with protected characteristics.The duty applies to the provision of education and access to any benefit, service or facility. Schools should consider whether they should make reasonable adjustments for children with disabilities. When deciding whether an adjustment is reasonable a number of factors will be taken into account including the financial resources available, the cost of taking a particular step and the extent to which it is practicable to take a particular step. Discrimination will only occur if the failure to make reasonable adjustments has put the pupil at a substantial disadvantage compared to their non-disabled peers. However, substantial just means more than minor or trivial. 

    In addition, schools have a duty to ensure that a pupil with a disability is not treated unfavourably because of something connected with his/her disability. This is called discrimination arising from disability. This will occur when the school treats a disabled pupil unfavourably, this treatment is because of something connected with the pupil’s disability and the school cannot justify the treatment by showing that it is a proportionate means of meeting a legitimate aim. 

    Pupils with disabilities must also not be discriminated against because of behaviour connected to their disability unless there is a very good reason for it. For example, a child with autism who is very literal in what she says should not be treated in the same way as another child who is deliberately rude to a teacher.

    IPSEA's advice is that you should ask yourself these questions: 
    • Is my child disabled (as defined by the Equality Act) and were the school aware of the disability? 
    • Was the exclusion solely because my child is disabled? 
    • Was the exclusion for a reason arising from my child’s disability; or as a result of a policy or practice operated by the school which disadvantaged my child compared to its effect on a child who is not disabled? 
    • Was the exclusion a proportionate way for the Head Teacher to achieve a legitimate aim? 
    • Were there any reasonable steps which could have been taken to prevent the exclusion e.g. increasing support, training staff? 
    If you feel that your disabled child has suffered discrimination, you can complain to the governors of the school. If you are not satisfied, you can then make a disability discrimination claim to the First-Tier Tribunal (Special Educational Needs and Disability - SENDIST).
    Note that you can make a claim to SENDIST as well as or instead of going to the Independent Review Panel. The Tribunal's powers are different and they will look at the disability aspects of the exclusion afresh rather than just review the Governing body's decision. The Tribunal can reinstate your child, even if their name has already been removed from the school roll.

    Your claim must be lodged within 6 months of the date of the exclusion.A successful claim may result in a declaration that the school has discriminated against the pupil, an apology for this discrimination and a change in school policy.Parents can make a claim to the Tribunal for any type of exclusion, fixed term or permanent. For permanent exclusions, this right is in addition to the right to request a review by an IRP.


    Advice can be obtained by contacting some of the lawyers listed on my lawyers' blog page or from the organisations below (click on the blue links):

    • The Equality and Human Rights Commission provides advice on its website on exclusion and the Equality Act. You can also call the Equality Advisory Support Service on 0808 800 0082, from 9am to 8pm on Monday to Friday and from 10 to 2pm on Saturday.
    • ACE has produced this guide to the law on exclusion
      • Coram Children's Legal Centre has a factsheet here.
      • Contact a Family recently published this damning report into illegal exclusions demonstrating how children with disabilities are routinely illegally excluded from school with a devastating impact on their education and mental health. The report concludes that schools use illegal exclusions frequently bypassing official procedures laid out by the Department for Education. Unlike formal exclusions, schools do not have to report this type of exclusion to the local authority. It is not subject to review or external monitoring and can drag on indefinitely. Essential reading.
        • IPSEA is a national charity providing free legally based advice to families who have children with special educational needs. All our advice is given by trained volunteers. It has a freephone helpline. Its advice line 0800 018 4016 is open Monday to Thursday from 10am to 4pm and from 7pm to 9pm. It is also open on Fridays between 10am to 4pm. You can also access a telephone appointment via their website.
        • SOS-SEN offer a free, friendly, independent and confidential telephone helpline for parents and others looking for information and advice on Special Educational Needs (SEN). Its telephone line 020 8538 3731 is available every weekday between 9:30am and 12:30 and between 2:00 and 5:00pm.
        • Contact a family Contact a Family is the only national charity that exists to support the families of  disabled children whatever their condition or disability. Advice on SEN is available through their helpline 0808 808 3555 from Monday to Friday between 9.30am to 5pm.
        • Parent Partnership Parent Partnership Services offer advice and support to parents and carers of children and young people with special educational needs (SEN). Concerns are expressed by some parents about the independence and impartiality of some services which vary from area to area. Some parents report that PP services may provide advice which appears to be based on LA policies or priorities rather than the law. To find details of your local service call 0207 843 6058
        • The First Tier Tribunal website is found here for disability discrimination claims under the Equality Act.

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