The DfE Publishes New Statutory Guidance on Suspensions and Permanent Exclusions

(N.B. The DfE published further amended statutory guidance on 1 September 2022, and this article has been subsequently updated to reflect that).

The new Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement (Exclusion Guidance) comes into force on 1 September 2022, and was published alongside the Government Response to Behaviour and Exclusion Guidance Consultation.

Please also see our separate article on the DfE's new advice Behaviour in Schools (Behaviour Advice) for a summary of key changes to managing behaviour more generally.

The process for dealing with exclusions is set out in regulations, which is then supported and expanded upon by statutory guidance (ie the Exclusion Guidance). Some of the changes made have therefore necessitated amendment of the regulations.

What Are the Main Key Changes?

• Fixed term exclusion is now referred to as 'suspension' in the Exclusion Guidance and Behaviour Advice, however the regulations have not been changed and 'suspension' is defined as exclusion for a fixed period.

• The Exclusion Guidance states "Schools and local authorities should not adopt a ‘no exclusion’ policy as an end in itself. This can lead to perverse incentives for schools not to exclude even when exclusion may be a way for a pupil to access Alternative Provision which will help ensure an excluded pupil remains engaged in education. In some cases, a ‘no exclusion’ policy can present safeguarding issues and expose staff and pupils to unreasonable risks…" [our emphasis added].

• There is more detail on unlawful off-rolling, and confirmation that Ofsted will consider any evidence of this and is likely to judge the school 'inadequate' if this has been happening and leaders have taken insufficient action to address it.

• It is explicitly confirmed that an 'acting Headteacher' is someone who has been specifically appointed to that role while the Headteacher is absent or the post is vacant, and this does not include the deputy head (or other member of the senior leadership team) while the Headteacher is routinely off-site.

• The Headteacher's power to withdraw an exclusion that has not been formally reviewed by the Governing Board has been retained, but is now called 'cancelling' an exclusion. The Exclusion Guidance sets out who must be notified and the requirements for reporting the numbers involved and reasons for them to the Governing Board, to enable them to have oversight.

• There is strong emphasis that the school's safeguarding duties must be met during disciplinary matters, with the DSL (or deputy) being involved in decision making where there are safeguarding concerns in respect of anyone involved, supported by other agencies such as the police and/or social care where appropriate.

• There is also strong emphasis on suspension and exclusion being a last resort, with "preventative measures to school exclusion" having its own section and an explicit requirement to consider the initial intervention strategies at Paragraphs 96 to 107 of the Behaviour Advice, as well as off-site direction and/or managed move before a decision to suspend/exclude is taken.

• Off-site direction may be used as a temporary placement to improve future behaviour, but not as a sanction for misbehaviour. It "should only be used where in-school interventions and/or outreach have been unsuccessful or are deemed inappropriate". More detail is included in respect of planning the placement, including agreeing a maximum time limit, setting objectives and monitoring progress, and the DfE's Alternative Provision statutory guidance must be followed (this is statutory guidance for maintained schools, and best practice for academies).

• 'Managed move' is defined for the first time as being "used to initiate a process which leads to the transfer of a pupil to another mainstream school permanently". However, the Exclusion Guidance then states that, if a temporary move is needed to improve the pupil's behaviour, then off-site direction should be used instead. Unfortunately, there is no reference to the trial period while the pupil is dual registered, timescales or outcomes, and it therefore appears that schools will have to continue to follow local practice in this respect. In view of the lack of clarity on managed moves, we have written to the DfE seeking further clarification.

• Headteachers should "take the pupil’s views into account, considering these in light of their age and understanding, before deciding to exclude, unless it would not be appropriate to do so. They should inform the pupil about how their views have been factored into any decision made. Where relevant, the pupil should be given support to express their view, including through advocates such as parents or, if the pupil has one, a social worker" [our emphasis added]. This is a clear step up from the previous requirement to allow the pupil an opportunity to present their case, where practical.

• The DfE did not proceed with the backstop of three school days for notifying parents in writing of an exclusion, so this remains as 'without delay' only. Where electronic communication is permitted, this can now be by text message. Paragraph 72 states that the Headteacher should initially notify the parents in person or over the telephone "as this would allow parents to ask any initial questions or raise concerns directly with the Headteacher".

• The Local Authority must now be notified of all suspensions/exclusions, including those where the total has not exceeded five school days in the current term. There is no corresponding duty to notify Governing Boards 'without delay' of these suspensions.

• Where the pupil is looked after or previously looked after, or has a social worker, the Virtual School Head (VSH) and/or their social worker must be notified in writing of all suspensions/exclusions, and invited to attend a Governors' Discipline Meeting (GDM) and Independent Review Panel Hearing (IRPH) where these take place. Advice on their role is included, and Governing Boards must notify them in writing of their decision.
  
  
• The DfE consulted on requiring Governing Boards to hold a formal meeting to consider reinstatement in the case of suspensions where the total had not exceeded five school days in the current term, and it did initially retain this in the statutory guidance published in July 2022. However, after we wrote to the DfE seeking clarification as to how this would work in practice, the DfE published amended statutory guidance on 1 September 2022 reverting to the position in the 2017 statutory guidance. Governing Boards must therefore continue to consider representations made by parents in these cases, but do not have the power to direct reinstatement and are not required to hold a formal meeting.

• There is some confusion in respect of the table and checklist of questions on Pages 38 and 39, as they seem to imply that the making of representations by parent and a request for a meeting are separate acts, when in fact the regulations make it clear that is it the making of representations that triggers the requirement to hold meeting - there is no requirement for parents to specifically request a meeting.

• The sources of free legal advice have been expanded so that exclusion letters must include reference to the school's local SENDIAS service, Coram's Child Law Advice Service, ACE Education, and IPSEA. We have revised our suite of template exclusion letters to reflect this and other changes.

• Paragraph 94 places an onus on Governing Boards to ensure that schools are complying with their legal duty to arrange suitable full-time education from the sixth consecutive school day, with encouragement to put this in place earlier (particularly for looked after pupils or ones with a social worker). Schools can now use online pathways such as Google Classroom or Oak National Academy to provide education during the first five school days. The school's duties in respect of pupils with SEN (including those with an EHC plan) and/or disabilities continue during this period.

• Witness statements can be obtained and circulated from the DSL, the pupil's parents and, where appropriate, the designated teacher for looked after children, the VSH and the pupil's social worker.

• Taking into account the pupil's age and understanding, parents should be made aware of their child's right to attend and participate in the GDM "and the pupil should be enabled to make a representation on their own behalf if they desire to do so".

• When making decisions, Governing Boards must consider "the welfare and safeguarding of the pupil and their peers" in addition to considering if the decision was lawful, reasonable and procedurally fair.

• A SEN expert requested to attend an IRPH is now required to have a good understanding of current practice and legal requirements relating to disability, in addition to SEN, and should be able to demonstrate that they have experience of working in schools.

• Schools are required to have a reintegration strategy for pupils returning from suspension, off-site direction or reinstatement by the Governing Board that "offers the pupil a fresh start; helps them understand the impact of their behaviour on themselves and others; teaches them to how meet the high expectations of behaviour in line with the school culture; fosters a renewed sense of belonging within the school community; and builds engagement with learning". This must be agreed/communicated at a reintegration meeting (noting that the pupil cannot be prevented from returning to mainstream classes because their parents are unwilling or unable to attend).=

• The guidance reinforces that part-time timetables should not be used to manage a pupil's behaviour. Any agreement for part-time attendance for pastoral reasons should have a time limit for attending full-time (at school or AP), and be regularly reviewed with the pupil and parents.

• Governing Boards are required to challenge and evaluate what the school's data is telling them about pupil moves and the characteristics of the pupils involved, including analysing the use of off-site direction and off-rolled pupils, looking for patterns, and considering cost implications for AP placements. Multi academy trusts should have this oversight in respect of their academies. Further information can be found in Understanding your data: a guide for school governors and academy trustees. Governing Boards must also provide the Secretary of State with exclusion data for the last 12 months within 14 days of receiving a request.

Pupils with SEN and/or Disabilities

There is more detailed information how the exclusion process applies to pupils with SEN and/or disabilities, reinforcing that, where there is a link between the pupil's SEN and/or disability and their behaviour, schools must ensure that they their duties under both the Equality Act 2010 and Children and Families Act 2014 during the exclusion process.

Schools must consider the support that has been provided to the pupil at the time of the incident, and beforehand, to establish whether it was adequate. If it wasn't, and there is a link between the behaviour and the SEN and/or disability, it is unlikely that a decision to suspend or permanently exclude could be justified as proportionate.

What Do Schools Need to Do Now?

• Review and amend the school's Behaviour Policy (and other behaviour related policies, such as Anti-Bullying, Smoking, Alcohol and Drugs, Acceptable Use and Use of Reasonable Force).

• Review and amend the school's existing template exclusion letters from the Headteacher and GDC.

• Arrange appropriate training for headteachers, staff (including the DSL, SEN Co-ordinator and designated teacher for looked after children), Governors and Clerk.

How Can VWV help?

• We are revising our template Behaviour Policy (and other behaviour related policies, such as Anti-Bullying, Smoking, Alcohol and Drugs, Acceptable Use and Use of Reasonable Force) which are available for a fixed fee (with a reduction for retainer clients).

• We are revising our suite of 18 template exclusion letters, which include an explanatory table and a briefing note on writing effective exclusion letters.

• We are presenting a Behaviour and Exclusions Update webinar on Tuesday 20 September 2022, from 3.30pm to 5.00pm, which is free to attend - register here.

• We can provide bespoke training (via webinar or on-site) tailored to the specific needs and demographics of your school(s) for a competitive fixed fee.

If you have a query relating to the information above or would like to discuss ways we can help and our fees for doing so, please contact Joanna Goddard on 020 7665 0805 or Yvonne Spencer on 020 7665 0870, in our Regulatory Compliance team, or complete the form below.