A school can’t exclude a child for poor academic performance, or because they have a disability or additional needs that the school feels unable to meet.
An Upper Tribunal ruling in 2018 makes clear for the first time that all schools must make sure they’ve made appropriate reasonable adjustments for autistic children, or those with other disabilities, before they can resort to exclusion.
Previously, a loophole in the Equality Act 2010 meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse of others', even when that behaviour was caused by a lack of appropriate support.
However, this loophole has been closed. This means children can’t be permanently excluded for behaviour that’s linked to being autistic, if the right support wasn’t in place.
When considering whether to permanently exclude an autistic pupil, headteachers will need to ensure reasonable adjustments (positive steps, changes in policy, practice and strategies) were made to help the pupil fully participate in their education and other aspects of school life.
A decision to permanently exclude a pupil can only be made by:
- the headteacher or principal of a maintained school or an academy
- the teacher in charge of a pupil referral unit (PRU)
- anyone acting in either of the above roles.
The permanent exclusion process
Before the headteacher decides to permanently exclude your child, they must:
- make sure an appropriate investigation has been carried out
- consider all the evidence available, taking into account the school’s behaviour policy and, if applicable, the requirements of the Equality Act
- where practical, talk to your child to hear their version of events · check whether the incident may have been provoked, for example by bullying or by racial or sexual harassment, or whether there were any other contributing factors, such as bereavement or mental health issues
- if necessary, consult others – but not anyone who may later have a role in reviewing the headteacher’s decision, such as a member of the governors’ discipline committee.
They can exclude your child only after they’ve taken these steps and only if they’re satisfied that, on the balance of probabilities (it's more likely than not), your child did what they’re accused of.
If the headteacher decides to permanently exclude your child, the school’s governors (also known as the governing board, governors’ discipline/exclusions committee, or an academy’s trustees) must meet to examine (or ‘consider’) the decision. They must do this within 15 school days of receiving notice of the exclusion.
What’s the process for permanent exclusions?
Ideally, the headteacher should first let you know in person or by phone about their decision to permanently exclude your child. This gives you a chance to ask any initial questions or raise concerns directly.
They must let you, the school governors and the local authority (LA) know about the permanent exclusion and the reasons for it, without delay. The letter to you should state that the exclusion is permanent and must include specific information, including:
- the date the exclusion takes effect
- the reasons for the exclusion
- your right to make representations to the governors, and how your child may be involved in this
- the latest date that the governing body can meet to consider the exclusion, which is 15 school days from the date the governors were notified of the permanent exclusion
- letting you know of your right to see/have a copy of your child’s school record upon written request, and your right to state your case to the governors in writing or at the meeting where they consider the exclusion
- who you can write to (such as the chair of governors) if you want to send a letter, attend the governors’ meeting or ask for your child’s school record
- your responsibility to ensure your child isn’t present in a public place during school hours, for the first five days of the exclusion
- details of the statutory guidance on exclusion · details of the Coram Children’s Legal Centre, who provide information and advice on education law, plus, where relevant, information on our School Exclusion Helpline.
For the first five days of a permanent exclusion, the school is responsible for making sure your child’s education continues, including setting and marking homework.
From the sixth day, the LA is responsible for providing suitable full-time education. This will be your child’s ‘home authority’ if the school is maintained by (or located within) a different LA.
Special educational needs (SEN)
School governors have a legal duty to make sure the necessary educational provision is made for pupils with SEN. Most academies have similar requirements as part of their ‘funding agreement’. Although some autistic pupils progress well at school without specific support, autistic children and young people are generally considered to have SEN.
Unless there are exceptional circumstances, schools should avoid permanently excluding pupils with SEN who have an education, health and care (EHC) plan.
If a pupil with SEN seems at risk of being excluded, the school should work with others (including the LA, if needed), to see if additional support or alternative placement may be needed. For example, they should:
- seek advice and support from the LA and other professionals
- ask the LA to carry out an assessment of education, health and care needs, or a reassessment
- arrange an interim/emergency annual review, if the child has an EHC plan.
Our Education Rights Helpline can offer advice on EHC plans and reviews.
If the school haven’t at least considered the steps above, it’s hard for the headteacher to argue that permanent exclusion was a ‘last resort’.
What can I do if my child has been permanently excluded?
If you want to challenge your child’s permanent exclusion, there are two options open to you.
Write to the governors
You must be invited to the meeting where the governors consider the headteacher’s decision to permanently exclude your child. If you want to attend, you should write to the governors.
The letter should be:
- addressed personally to the chair of the governors (their details should be in the headteacher’s exclusion letter, but the school, your local council offices, library or Citizen’s Advice Bureau should also have their name and address)
- hand-delivered, or sent by recorded delivery
- copied to the Director of Education or Case Officer of your LA.
You should keep a copy of your letter. You may find this template helpful.
[Name of Chair of Governors]
Chair of Governors
[Name of your child’s school]
[Address of school]
Dear [Name of Chair of Governors]
Your child’s name and date of birth
My child has been permanently excluded from school and I would like to state my case in person to the governors.
Please send me copies of my child’s school record, the school’s behaviour/discipline and special educational needs policies, together with any witness statements, including my child’s statement.
I would like to bring a friend or adviser to the meeting with me. I look forward to hearing from you regarding a convenient date for us to meet.
Meet with the governors
The meeting with the governors must be held within 15 school days of the permanent exclusion. This is who’ll be there:
- usually three to five governors, often called the governors’ discipline committee (GDC), who shouldn’t have any involvement that could make them biased, such as being a parent of a child in your child's class or year group
- the headteacher (to present the school’s case)
- someone from the LA (to give their comments)
- a clerk (to take notes and advise the governors on procedure)
- any witnesses, if appropriate.
The headteacher shouldn’t be in the room with the governors at any time, before or after the meeting, unless you’re present.
The reasons for the exclusion are usually presented first. Any written evidence and information should be sent to all parties at least five school days before the meeting.
If you want to submit written representation, this should also be emailed/delivered to the chair of governors at least five days before the meeting.
If necessary, you or governors can ask for the meeting to be put back to allow time to read any late evidence. However, the governors must still consider the headteacher’s decision to permanently exclude within 15 school days of receiving the notice of the exclusion.
When it comes to the meeting, we recommend that you:
- take a friend or adviser for support
- write down what you want to say and read it out, or submit it in advance for governors to read
- write down any questions you may want to ask and tick them off as the meeting progresses.
You may also want to consider our additional suggestions for working together and resolving differences with your child’s school or LA.
It’s the governors’ duty to ensure all parties can participate in the meeting and have their views heard. This is particularly important if your child is under 18 and speaking about their exclusion or giving evidence to the governors.
The governors should ensure that clear meeting minutes are taken and made available to all parties on request.
The governors must consider the circumstances of the exclusion, the views of the LA, your views and those of your child (if they took part in the meeting). They must also consider the interests of other pupils and people working at the school.
They should decide to either ‘decline to reinstate’ (uphold the headteacher's decision) or to ‘direct reinstatement’ of your child, either immediately or on a particular date.
The governors must let you know their decision, and their reasons, in writing without delay. They must also inform the headteacher and the LA.
What happens if a permanent exclusion is upheld?
If the governors decide that your child’s permanent exclusion was justified, they must also inform you of your right to ask that the decision is reviewed by an Independent Review Panel (IRP). They should also inform you:
- that you have 15 school days, from the date you were notified of the governors’ decision, to request a review
- to whom you should send your review application, and their address
- that you’ll need to be clear on what grounds you’re requesting the review – this should reference how your child’s SEN are relevant to the exclusion
- of your right for an SEN expert to attend the review, regardless of whether your child is recognised as having SEN
- of the SEN expert’s role and confirm that their appointment will cost you nothing
- that if you want an SEN expert to be appointed, you must make this clear
- that you may, at your own expense, appoint someone to represent you in writing or in person, and can also take a friend or supporter to the review.
Your child will remain on the school roll until the review is completed, or the time limit for requesting one has expired, or until you write to tell the LA you won’t be applying to the IRP.
The Independent Review Panel
The LA (or Academy Trust, for academy schools) must appoint a panel of either three or five members. One of them must be a ‘lay member’, which is someone who’s never worked in a school in a paid capacity.
All panel members must have received training, within the previous two years, that covers:
- legislation, regulations and statutory guidance governing exclusions
- the need to observe procedural fairness and the rules of natural justice
- the role of the chair and the role of the clerk to a review panel
- the duties of headteachers and governors under the Equality Act
- the need to act in a manner compatible with the Human Rights Act 1998
The panel’s role is to review the governors’ decision not to reinstate your child. After this, they can decide to:
- uphold the governors’ decision
- recommend that the governors reconsider their decision
- quash the decision and order the governors to consider the exclusion again.
The IRP’s decision is binding on you, your child, the governors, the headteacher, the LA and, in the case of an academy, the Academy Trust.
If you think the review panel have made errors in the way they’ve carried out the process (maladministration), you can complain to the Local Government Ombudsman. You must do this within one year of the alleged maladministration.
If you think the IRP’s decision is flawed, you can apply to the High Court for a judicial review. So can the governors. This needs to be done within three months of the date of the decision. We advise you to talk to a solicitor first. Our Autism Services Directory may help you find one that’s suitable.
The LA or Academy Trust must appoint an SEN expert to attend the review panel if you ask for one.
You have the right to ask for an SEN expert to attend the IRP meeting, even if the school doesn’t recognise that your child has SEN.
The SEN expert must be impartial, with no connection to you, your child, the school the LA, the Academy Trust, or the incident leading to the exclusion.
Their role is to give impartial advice on how SEN might be relevant to the exclusion. This advice should focus on whether the school’s SEN policies were legal, reasonable and fair.
They should advise the panel on whether they believe the school acted in a legal, reasonable and procedurally fair way in respect to the identification of any SEN your child might have, and any contribution this could have made to the circumstances of your child’s exclusion.
If you think the permanent exclusion amounts to disability discrimination, you can appeal to the First-tier Tribunal (special educational needs and disability). The First-tier Tribunal (SEND) can order that your child is reinstated into the school.
You must lodge your claim within six months of the day your child was excluded. If you are asking the tribunal to reinstate your child, they will aim to fast-track it and reach a decision within six weeks.
Our guide, How do I appeal my child's exclusion to the First-tier Tribunal (SEND) should help you through the process.
Duty to provide suitable education
Local authorities are required to provide suitable full-time education from the sixth day of a permanent exclusion. Schools are responsible for setting and marking work for the first five days.
Schools must immediately inform the appropriate LA of each permanent exclusion so that arrangements can be put into place. Section 7 of the Education Act 1996 states that any alternative arrangements must be suitable for your child’s age, ability/aptitude and any SEN they might have.
Useful documents and reading
Exclusion from maintained schools, Academies and pupil referral units in England. Department for Education (2017).
If you need further help trying to prevent or challenge exclusion, you might find our School Exclusion Helpline useful.