New Statutory Guidance on Suspensions and Permanent Exclusions in Force From 1 September 2023

The DfE did not consult on this new Statutory Guidance, because they took the view that the changes they made followed on from their previous consultation in 2021 after which they chose not to go ahead with some of their proposed changes.

The changes made in the new Statutory Guidance are the following:

• Recognition that, although 'suspension' is used in the Statutory Guidance, the legislation underpinning it still refers to 'exclusion for a fixed period'. The term 'exclusion' is used throughout to collectively refer to both suspensions and permanent exclusions.

• Updated guidance in respect of the Headteacher's power to cancel a suspension or permanent exclusion in prescribed circumstances (see below).

• A new power to hold a Governors' Discipline Meeting (GDM) or Independent Review Panel Meeting (IRPH) by 'remote access' in prescribed circumstances (see below).

• Various corrections, including changing references to "less than 16 school days" to "not exceeding 15 school days" and making it clear in the table on Page 39 and FAQs on Page 40 that parents do not have to "request" a GDM (where the total is over 5 but not over 15 school days in the current term), it is the parents' act of them making 'representations' that triggers the duty to arrange a GDM.

Cancellation of Exclusions

The Headteacher has the power to cancel any suspension or permanent exclusion that has already begun or not yet begun, regardless of whether the pupil has been admitted to another school, as long as the following are met:

• The Governors' Discipline Committee (GDC) has not yet commenced a meeting to review the suspension/permanent exclusion.

• The pupil has not been suspended for more than 45 school days in the current school year, or will have been by the time the cancellation takes effect.

The Headteacher must notify the parents, the Governing Board, the Local Authority, the pupil's Social Worker (where the pupil has one) and the Virtual School Head (where the pupil is looked after or previously looked after) of the cancellation, with reasons, without delay. As with exclusion notifications, this can only be done electronically if the parent has agreed to receiving notifications of this kind by this method.

The parents (or pupil, where they are 18 years or older) "should be offered the opportunity to meet the headteacher to discuss the circumstances that led to the exclusion being cancelled which should be arranged without delay".

The pupil "must be allowed back into the school from which they were excluded without delay". Unfortunately, the addition of the last part of that sentence suggests that it may not be lawful to cancel an exclusion with a view to directing off-site immediately on return which, given off-site direction is now referred to as a preventative behaviour management strategy, is unfortunate and may result in less cancellations. The amended regulations simply state that the Headteacher must "reinstate the pupil" which, without the Statutory Guidance, could have been read to mean reinstate onto the school's roll, but not necessarily have to bring them back into school where suitable arrangements had been made.

On cancellation of the suspension, the GDC are not required to meet to review the suspension or permanent exclusion. Any days the pupil was actually suspended for before the suspension was cancelled will count towards the total in the current term/school year the event of a further suspension.

Remote Access GDMs and IRPHs

Having consulted on a proposal to allow these but decided not to go ahead in 2022, the DfE have now amended the regulations to bring in this change. 'Remote access' is defined as "access to a meeting to enable those who are not all present together at the same place to attend and participate simultaneously by electronic means, including by live audio and live video link".

The regulations and Statutory Guidance make it clear that ordinarily a remote access GDM or IRPH may only take place if this is requested by the parents (or pupil if aged 18 years or over), who must be told they can make this request in the exclusion notification or GDM outcome letter. Where such a request is made, the GDM or IRPH must take place by remote access providing the Governing Board is satisfied that all of the following conditions are met:

• All participants will be fully able to make representations and/or discharge their functions.

• Each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the meeting.

• The meeting is capable of being held fairly and transparently.

Further, where no remote access request has been made by the parents/pupil, but "for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the [GDM or IRPH] to be held in person", it can take place by remote access providing all of the above conditions are met. The Statutory Guidance refers to "extraordinary events or unforeseen circumstances such as an unforeseen school closure due to floods, fire or outbreak of infectious illness/disease", which would then include another pandemic without further temporary amendments being necessary, as was the case before.

The Statutory Guidance makes it clear that remote access GDMs and IRPHs "should not be a default option and face to face meetings should always be encouraged". It gives detailed statutory guidance in Part 11 about how they should be conducted to ensure fairness and transparency, and what should happen in the event of technical or networking issues.

The new rules come into force on 1 September 2023, however where a suspension or permanent exclusion was imposed before then but the GDM or IRPH will not take place until after, the parents/pupil should be notified "either on 1 September or as soon as possible afterwards" that they may now ask for the GDM or IRPH to be held by remote access within 3 school days of receipt of that notification.

Social Workers and/or VSHs are able to nominate another person as their representative to attend a GDM or IRPH and make representations. They or their representative may also attend any GDM or IRPH by remote access, even if it is taking place in person and the parents/pupil have not requested remote access, providing all of the above conditions are met.

Surprisingly, there are no references to 'hybrid' meetings/hearings in the Statutory Guidance, as there are in the School Admission Appeals Code 2022. This infers that GDMs and IRPHs must be either be fully face to face, or fully remote access (except where a Social Worker or VSH attends by remote access as set out above), however this is not entirely clear given the definition of remote access referred to above. In any event, as a general rule, we advise against using hybrid meetings/hearings, and suggest they should be very much a last resort.

If you are an employee, Governor or Trustee of a school, academy or multi academy trust, and you have a query relating to this article and would like to discuss ways in which we can support you, please contact Joanna Goddard in our Regulatory Compliance team on 020 7665 0805, or complete the form below.