Permanent exclusion


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

By francesco.rosati Nephogram Label 
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.

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 involves the child being removed from the school roll. This cannot happen until the outcome of the Independent Review Panel is known if the parents take their appeal this far.

A permanent exclusion occurs when the Head has decided that a pupil should not continue at the school because of a serious breach of the school's behaviour policy and that allowing the pupil to remain in school would harm the education or welfare of the pupil or others in the school.

Who can exclude?

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?

An exclusion can only be for disciplinary reasons in accordance with the school behaviour policy which sets out what the school rules are. Schools do vary in what they will permanently exclude for. Behaviour policies can vary but a permanent exclusion should only ever happen where there has been 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.  This may include behaviour outside school such as on school trips, or when in uniform.

In practice, this usually means that either the child has a history of disruptive behaviour and the school cannot deal with it any loner or the child has been involved in a single serious incident such as an act of violence or bringing drugs or a knife to school.

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. he 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 fact it is permanent
  • your right to make representations in writing to the governing body
  • 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.

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, perhaps by providing work via their website. But the work should be accessible and achievable to pupils out of school. 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 day six: in the case of permanent exclusion  the local authority has a duty to provide suitable full-time alternative education from day 6 for children of compulsory school age. For example, at a pupil referral unit or other alternative provision. But any alternative provision must be able to meet the needs of a child who has a statement of special educational needs and any placement must be identified in consultation with parents.

Fair access protocol Schools (including academies) and local authorities should work together to identify a school place for those children who have had difficulty finding one. All schools are expected to respond to requests by local authorities to admit a child under fair access protocols within seven calendar days. Non-statutory Government guidance can be found here.Children can be placed under the FAP even if a school is full. Contact your local authority for details of its policy.

Applying for another school place You can also apply for a school yourself under the normal admissions system and in most cases appeal if the school is full but a school may refuse entry even if it has places in the following circumstances:
  • in the case of children who have permanently been excluded twice within two years of the last exclusion
  • children who meet the definition of 'challenging behaviour' in some circumstances (see your local authority's policy). They must then be dealt with under the Fair Access Protocol.
Children with statements A statement of special educational needs will need to be amended to change the name of the school in Part 4. You have a right of appeal if you disagree and want a different school.

Home education You can choose to home educate but this should not be done under pressure to avoid an exclusion. See my post on home education.

Challenging the exclusion

If the exclusion is not officially permanent or if you think the head may be persuaded to withdraw it, you could negotiate for an alternative such as a managed move to another school for young people aged 14-16, a flexible curriculum. But the head is under no obligation to change his/her decision.

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 in detail: who, where, what, when, how? Ask them to show you where it happened if relevant. Identify witnesses.
  • Are there differences between what the witnesses say?
  • Has the behaviour policy been applied fairly to your child? How are othjer children at school treated for similar incidents?
  • Has your child been in trouble before? Children do not always think through the consequences of their actions.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?
  • Are there other factors affecting your child such as a bereavement or bullying?
  • Are your child's SEN being met or have they been identified and properly supported? Do school understand your child's needs? Are they accessing appropriate help? Schools must not exclude children simply because they have SEN.
  • Has the SEN policy been applied in your child's case?
  • 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?
The school also have to show that allowing your child to remain in school would be harmful to the education of other children. Can the school do this? Is your child seriously disrupting the class or are they a risk to other children or staff? If it’s a one off serious offence, how likely is it that it will happen again?

Governor's review 

The Governors must meet within 15 school days to consider the exclusion and parents/carers must be invited to attend the meeting and can be represented. They should also send you a list of everyone who will be present at the meeting. They should try to arrange the meeting at a time that is convenient to everyone. At least three Governors should be in attendance and they should have no involvement in the case that might lead them to favour one side above another. Normally, a clerk should attend to take notes and advise on procedure. The head will also be present and a representative of the local authority may also attend. 

You may call witnesses and your child may attend if they wish to - their views are really important so encourage them to participate in some way (e.g. writing something).The governors should ask for written material to be sent in before the meeting which they should circulate the papers at least five days before the meeting so you have a chance to read them. If any new papers are brought up at the hearing, ask for a short break in order to read them. You are entitled to a fair hearing and can bring a friend or representative. The Governors shouldn’t have a private meeting with the head teacher about it without you there.

The parents and head teacher have a chance to give evidence and then both are asked to leave while the Governors decide. Their decision is made on the balance of probabilities and must be based on the interests and circumstances of the excluded pupil  and having regard to the interests of other pupils and people working at the school. They must decide whether the head’s decision was lawful, reasonable and procedurally fair. Minutes should be taken of the meeting as a record of the evidence that was taken into account.

The governors may either uphold the exclusion or direct reinstatement immediately or on a particular date. Even if it is not know possible for your child to be reinstated, the Governors must still consider whether the head teacher’s decision was justified. The decision should be logged on the child’s school record along with copies of the relevant papers and you should be told the outcome and the reasons for their decision in writing without delay.

If they decide the exclusion is justified, the letter must also tell you that:

  • it is a permanent exclusion
  • you have the right to ask for the decision to be reviewed
  • what the timescales for review are
  • your right to ask for an SEN expert at the review
  • your right to be represented
  • additional rights of to make a claim in discrimination cases.

If your child has a disability which affected the exclusion and you feel that the governors did not take this into account, you may make a disability discrimination claim to SEND. See below.

Independent review panel 

If the exclusion is upheld, you can ask for their decision to be reviewed by an independent review panel which can instruct the Governors to review their decision. Parents must lodge their application for a review within 15 school days of notice being given to the parents by the Governing Body of their decision to uphold a permanent exclusion; or where an application has not been made within this time frame, within 15 school days of the final determination of a claim of discrimination under the Equality Act 2010 in relation to the exclusion.

Parents may request an independent review panel even if they did not make a case to, or attend, the meeting at which the Governing Body considered the exclusion.

The meeting must take place within 15 school days of your application being received.  The local authority or Academy will constitute a panel which will be made up of 3 or 5 members. There are strict rules about who can and can’t be on a panel. Panel members must be independent and must not appear to be biased in any way. Members will include a lay member to chair the panel,  one (or two for a 5 member panel) school governor who have served as a governor for at least 12 consecutive months in the last five years, provided they have not been teachers or head teachers during this time, and one (or two for a 5 member panel) head teachers or individual who has been a head teacher within the last five years.

The head and a Governor will also attend as will an LA rep if your child is at a maintained school. The head and the governors and parents have right to be legally represented. 

SEN expert will also attend if you have requested this. The SEN expert should be a professional with first-hand experience of the assessment and support of SEN, as well as an understanding of the legal requirements on schools in relation to SEN and disability.SEN experts must be impartial but they can be employed by the Academy of local authority. They should not have had any previous involvement in the assessment or support of SEN for the excluded pupil, or siblings of the excluded pupil. The SEN expert should advise whether the school’s policies which relate to SEN, or the application of these policies in relation to the excluded pupil, were legal, reasonable and procedurally fair. If they weren't the expert should advise whether this could have contributed to the circumstances of the pupil’s exclusion.

Where the school does not recognise that a pupil has SEN, the SEN expert should advise the panel on whether he / she believes the school acted in a legal, reasonable and procedurally fair way with respect to the identification of any special educational needs that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion.

Your child can  also attend or put their views forward in writing or through a representative. Witnesses can be called but it is more usual to have written statements if the witnesses are pupils at the school. Any alleged victim also has a right to be present or put in written views. You can also call witnesses including a character witness to attend if the panel agrees.

Papers should be sent to all parties 5 school days before the review and you should be told who will be at the meeting and what their role will be. The panel's role is to review the decision and they must tae into account all evidence that was before the governing body. They can look at new evidence but they may be limited in how they can use it. You must flag up any evidence that you put forward that you think the governing body ignored or evidence like school policies that the governing body ought to have been aware of but weren’t. 

There may also be completely new evidence that has come to light since the governors’ meeting. This could be something like a new diagnosis of a particular disability affecting your child. The panel can look at completely new evidence when deciding whether to recommend reconsideration by the governing body, but not when deciding whether to quash the decision

In reviewing the decision the panel must consider the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded, and have regard to the interests of other pupils and people working at the school.

You are entitled to a fair hearing. The review "should be conducted in an accessible, non-threatening and non-adversarial manner". When considering the Governing Body’s decision, the panel should apply the following public law tests which need to be satisfied to quash the decision:

  • Illegality – did the head teacher and / or governing body act outside the scope of their legal powers in taking the decision to exclude?
  • Irrationality – was the decision of the governing body not to reinstate the pupil so unreasonable that it was not one a sensible person could have made?
  • Procedural impropriety – was the process of exclusion and the governing body’s consideration so unfair or flawed that justice was clearly not done?

The panel can decide to:

  • uphold the exclusion decision;
  • recommend that the governing body reconsiders their decision, or
  • quash the decision and direct that the governing body considers the exclusion again
Where the IRP directs or recommends that the Governing Body reconsiders their decision, the Governing Body must reconvene within 10 school days of being given notice of the IRP’s decision.If, following a direction to reconsider, the Governing Body does not offer to reinstate the pupil within 10 school days of being notified of the panel’s decision, an adjustment may be made to the schools budget in the sum of £4,000. In the case of an Academy, the school would be required to make an equivalent payment directly to the local authority in which the school is located. This payment will be in addition to any funding that would normally follow an excluded pupil.

After reconsideration, the Governing Body must notify the following people of their reconsidered decision, and the reasons for it, in writing and without delay: the parents; the head teacher; the local authority and, where relevant, the ‘home authority’. If the Governing Body upholds the exclusion again, there is no further right to refer the matter to the IRP. However the decision may be challenged by an application for Judicial Review - see below (note the requirement to bring the case promptly but at least within three months of the date of the decision).

If the criteria for quashing a decision have not been met, the panel should consider whether it would be appropriate to recommend that a governing body reconsiders their decision not to reinstate the pupil for example because there is evidence or procedural flaws which the panel believes justifies a reconsideration of the governing body’s decision.

Further challenges

There is no further right of appeal against the decision of an IRP. However there are two ways that the decision may be challenged: 
  • You may be able to take this further by complaining about maladministration to the Local Government Ombudsman (LGO). But parental experience of the LGO is not always positive and they have been accused of local,authority bias. See my post 'What to do when things go wrong: LGO'.
  • You could apply to the High Court for Judicial Review. In order to bring an action for judicial review, this would have required the IRP to have made an error in law/ acted unreasonably/ in breach of natural justice. The application for judicial review should be made promptly but at least within three months of the date of the decision. You would need legal representation should you decide to pursue this course of action.See my post 'What to do when things go wrong: judicial review'.


    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. Their guidance can be found here
        • 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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