Dan Rosenberg
Partner, Education & Public Law Solicitor
English
When your child has been excluded/expelled from their school, it can be a stressful and confusing time. If you believe that your child has been unfairly excluded from school, it can be even more of a difficult situation.
Legislation (The Education Act 2002) sets out the law which should be adhered to when excluding a child from a state school or academy.
There is also guidance called “Exclusion from maintained schools, academies and pupil referral units in England” which relevant schools should follow. Our job is to help you navigate the appeal process and give you guidance and support to get the outcome you want.
Contact our Education Solicitors who are independently recognised as some of the best in this field in the UK for help. We will provide a free case assessment today.
Fixed term exclusions- there is a limited ability to challenge. Parents have the right to make their case about the exclusion of their child to the governing board but unless the exclusion takes a pupil’s total number of school days of exclusion past 15 in that term, the governing board must consider any case made by parents, but it cannot make the school reinstate the pupil and is not required to meet the parents.
Permanent exclusions- the governing board must consider, within 15 school days of being told about the exclusion, whether the excluded pupil should be reinstated. This is the same for fixed-period exclusions where the pupil will miss more than 15 days in one term, or will miss a public examination (e.g. a GCSE) or a national curriculum test (e.g. a key stage 2 test taken at the end of primary school).
If the governing board decides not to reinstate the pupil who has been permanently excluded, parents can request an independent review panel to review the governing board’s decision.
Although the appeal process is only strictly a 2 stage process, there may be a further challenge by judicial review where the decision and/or process has been unlawful. If this is the case then it is really crucial to act and seek appropriate legal advice quickly on the options available.
There are many circumstances in which a child could be excluded from a school. We have successfully helped families appeal and otherwise challenge decisions to exclude. Here are a few examples of the types of cases where we have helped pupils and their families.
A 10-year-old boy, known as A, who was permanently excluded from school due to fighting with another child. A had autism and had been persistently bullied by a number of children in the school including the child who he was subsequently involved in fighting with. The Governing Body of the school originally upheld the decision of the Headteacher but the Independent Review Panel referred the matter back for reconsideration on the basis that they did not consider that the school had properly considered all the evidence around the circumstances of the fight and that there needed to be consideration of A’s autism. A did not, at the time, have an Education Health and Care plan.
We acted for the family of a 15-year-old boy, S. He did not have an Education, Health and Care plan but the Local Authority had been asked to carry out an assessment of his needs. The Local Authority refused on the basis that they considered the school could meet S’s needs from within their ordinary resources. Neither the school nor the parent accepted this explanation but then the school sought to exclude S on the basis that he was not attending school regularly and that, on the occasions he did attend, he did not engage in his lessons. S’s parents sought advice and a meeting took place with the school who subsequently decided not to exclude S and provided supporting evidence for the parents to challenge the decision of the Local Authority not to assess their son’s special educational needs.
The most important thing to remember if you and your child is going through exclusion and has been expelled, is that you can contact us as quickly as possible. Our Education lawyers are recognised as leaders in the field by independent legal directories. We have extensive experience and expertise in investigating the circumstances surrounding a school exclusion/expulsion, and will work tirelessly on your behalf to get justice where your child has been wrongfully excluded, whether on the grounds of inconsistent evidence, procedure or discrimination.
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The use of Applied Behaviour Analysis (ABA) can divide opinions but Simpson Millar’s specialist solicitors within our Education Law team have been instructed in many cases where there has been evidence of its success. Just one example of this is when we acted for the parents of a six year old girl who we will refer to as J throughout this article for the purposes of maintaining client confidentiality and privacy.
We helped a mother gain a placement for her child in her preferred school during a Judicial Alternative Dispute Resolution (JADR) Hearing, in a disagreement over travel costs.
We helped a child’s parents bring a judicial review and a positive ending in a case where the Local Authority were failing to provide suitable education.
School exclusion is when a pupil is removed from their school and not permitted to return for a period of time (known as fixed term) or permanently. Permanent exclusion should be a last resort for schools, so the exclusion process should be thorough.
There are two kinds of exclusion, which are dependent on the reason for exclusion. They are:
Fixed Term Exclusion – This is sometimes referred to as suspension. This is when a pupil is temporarily removed from a school for a set amount of time. This period cannot be undefined, and needs to made clear to the pupil and their legal guardians. The maximum time a pupil can be excluded on a fixed basis is 45 days in any one academic year.
For the first five days of exclusion, a pupil should be given set work to complete at home. After the sixth day, the school is required to provide full time education externally. Parents should also be advised on how they can support their child academically.
Permanent Exclusion – This is where the pupil is not allowed to return to their school. This should be a last resort, when a school believes one of their pupil’s poses a risk to other pupils or teachers and there has been a serious or persistent breach of the school’s behaviour policy.
A permanent exclusion must be a last resort and must be for disciplinary reasons. Schools cannot exclude for reasons relating to a child’s disability or other protected characteristic. They also cannot exclude for academic reasons such as falling behind or failing tests. Typical examples that we have seen leading to exclusions include:
Children should only ever be permanently excluded as a last resort. If a child has special educational needs and/or a disability then this becomes even more of an important consideration. Schools cannot lawfully exclude a child due to reasons relating to their disability. Schools are also under a duty to make reasonable adjustments to policies and processes which may subject a child with additional needs to a detriment where that policy is applied strictly. Blanket or ‘zero tolerance’ policies can be problematic in this respect.
If a child is excluded for a reason that is discriminatory then further legal challenge may be appropriate. We have assisted families where children have been excluded because of poor or challenging behaviour but that behaviour is because of unmet needs.
Exclusions can be challenged. It is important to act quickly in these circumstances. Headteachers can reverse and exclusion before it is considered by a Governing Body. It can be important to maintain dialogue and ensure the situation is progressed appropriately and in a timely fashion. The appeal process is there to be used and should be robust.
An EHCP (Education, Health and Care Plan) identifies your child’s Special Educational Needs (SEN) and should entitle them to the right provision they need to support them.
The reality of the end of Year 12 for all students normally includes a set of internal exams. This helps the school or college to have a better understand of how well pupils have coped with the transition from GCSE to A Level work, and helps inform the process of providing predicted grades to universities.
If your child has Special Educational Needs and Disabilities (SEND), they may need an Education, Health and Care Plan (EHCP). But we understand that EHCPs can be confusing.
Fill in the form below to get in touch with one of our dedicated team members, or call our team today on: 0808 239 9764
