A new education law comes into force in Wales on 1st September 2021.  The Additional Learning Needs and Education Tribunal (Wales) Act 2018 changes how children and young people aged 0-25 years with additional learning needs (ALN) will have their needs assessed, planned and monitored. These changes will be introduced gradually over the next 3 years. 

You can read more about the new Act here.

Children on the autism spectrum are particularly vulnerable to being excluded from school. 

This guide explains what an exclusion is, when and why a headteacher can exclude, including informal exclusions and the process that a school must follow.    

What is an exclusion? 

Exclusion is the most extreme option that is available to a headteacher when responding to unacceptable behaviour. It involves a pupil being kept away from the school for either a fixed period or permanently.  

An exclusion must be made on disciplinary grounds and can only be made by: 

• the headteacher of a maintained school  
• the teacher in charge of a pupil referral unit (PRU)  
• a person acting in either of the above roles.  

A pupil may be excluded for one or more fixed periods up to a maximum of 45 school days in a single academic year, or permanently, where the child is removed from the school roll.  

A fixed period exclusion doesn’t have to be for a continuous period. This might apply where a child attends off-site provision for part of the week, or where a child has been excluded for lunchtimes only. 
 

When and why can a headteacher exclude a pupil? 

The headteacher’s decision to exclude a pupil can be for: 

• persistent breaches of the school’s behaviour policy, when other strategies or sanctions have been exhausted or deemed inappropriate in the circumstances 
• a more serious one-off incident.    

Schools vary in the types of behaviour that they feel warrant an exclusion. However, in general, incidents will fall into one of the following categories: 

• physical assault against pupil or adult 
• verbal abuse/threatening behaviour against pupil or adult 
• bullying 
• racist abuse 
• sexual misconduct  
• drug and alcohol related  
• damage  
• theft  
• persistent disruptive behaviour.  

The behaviour of pupils outside school can be a reason for exclusion. This includes online activity such as inappropriate use of emails, images or other material on social media.  

Schools are required by law to have a behaviour policy. If you think your child might have been excluded unfairly, check that the school is complying with it.  You should also be aware of equality legislation and that schools have a duty to make reasonable adjustments to policies for disabled pupils. As autism is generally considered to be a disability for the purposes of the Equality Act 2010 (section 6), headteachers can be flexible if they think a child’s behaviour is linked to being autistic. 

You can read about reasonable adjustments in the disability discrimination in schools page.
 

Informal exclusion 

Some schools ask parents to take a pupil home or to keep the pupil at home, without officially excluding them.  

Parents may have the impression that the school is being compassionate by not adding an exclusion to the pupil’s school record. However, this practice can result in pupils losing out on their education and parents losing their right to make representations in writing to the governors or in person at a meeting to consider the decision. 

‘Informal’ or ‘unofficial’ exclusions, such as sending pupils home ‘to cool off’, are unlawful, even if the parents have agreed to it. Any exclusion of a pupil, even for short periods of time, must be formally recorded and follow the correct procedure. Exclusion for an indefinite period of time is also unlawful. 
 

The exclusion process 

If your child is excluded for a fixed period, here’s how the process will go: 

• The headteacher makes the decision to exclude your child. 
• They will let you know in writing. 
• You can write to the chair of governors. 
• The governors will respond to your email/letter and, in some cases, will arrange a meeting to consider the headteacher’s decision. 

If you think your child has been discriminated against, you can  make a claim against disability discrimination to the Special Educational Needs Tribunal for Wales (SENTW).   
 

The headteacher’s decision to exclude 

Before they decide to exclude your child, the headteacher should make sure that an appropriate investigation has been carried out. They must: 

• consider all the evidence available, taking into account the school's behaviour policy and, if applicable, the Equality Act 2010 
• where practical talk to your child to hear their version of events 
• talk to other witnesses to the incident 
• 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.   

Headteachers should take account of triggers that could impact on your child’s behaviour. These might include: 

• changes of teacher or timetable that they haven’t been prepared for 
• sensory differences 
• difficulties understanding the rules of social communication 
• bullying. 

Any of these might lead to a build-up of frustration, stress and anxiety that could result in distressed behaviour, sometimes referred to as a ‘meltdown'. 

A recent ruling makes clear for the first time that all schools must make sure they have 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 meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse' - even when that behaviour was caused by a lack of appropriate support.  

However, this loophole has been closed. This means that children cannot be excluded for behaviour that is linked to being autistic, if the right support wasn’t in place.  

Therefore, allowances should be made for autistic pupils’ behaviour and schools will need to ensure that reasonable adjustments (positive steps, changes in practice, policies and strategies) are in place to make sure that pupils are able to fully participate in the education and other aspects of school life. 

An exclusion is unlikely to be justified in circumstances in which the school has not complied with its duty to make reasonable adjustments for that pupil. 

The Equality Act 2010 also requires schools to make reasonable adjustments for pupils with disabilities both to the exclusions process and to the disciplinary sanctions imposed. This might mean applying alternatives to exclusion so that an autistic pupil is not at a substantial disadvantage in relation to other pupils.
 

The headteacher’s written notification to you 

Ideally, the headteacher should first let you know in person or by phone about their decision to exclude your child. This gives you a chance to ask any initial questions or raise concerns directly. Once a headteacher has made the decision to exclude your child, they should write to you and notify you of: 

• the reason for the exclusion  
• the length of the exclusion  
• the right to make representations to the governors and how your child may be involved in this 
• if the governors need to meet, then your right to attend the meeting, be represented and bring a friend  
• details of any alternative provision if this is being arranged 
• your responsibility to ensure your child isn’t present in a public place during school hours, for the first five days of an exclusion. 
   

Your letter or email to the chair of governors 

You can write to the chair of governors if you want to state your case following a fixed period exclusion.  

You may wish to challenge your child’s exclusion and to have their school record state that it wasn’t justified. 

You might challenge the exclusion on the following grounds:  

• your child didn't do what they were accused of  
• there are factors affecting your child’s exclusion that weren’t taken into account  
• exclusion was disproportionate punishment  
• the school didn’t follow the correct procedures  
• the exclusion amounts to disability discrimination. 
   

The governors consider the headteacher’s decision to exclude 

The governors have a duty to take into account the reasons why you believe the exclusion is unjustified. However, they’re only required to arrange a meeting to consider the headteacher’s decision in certain situations. These depend upon a number of factors, including the total number of days your child has been excluded in one term. 

1 to 5 days exclusion (in one term) 

The governors must consider any representations you make, but aren’t required to arrange a meeting with you and can't decide that the exclusion was unjustified and overturn it (direct reinstatement).  

5 ½ to 15 days exclusion (in one term) 

If you’ve requested one, the governors must meet to consider reinstatement within 15 days of receiving notice of the exclusion. If you haven’t requested a meeting, the governors are not required to consider the exclusion. 

15 ½ days to 45 days exclusion (in one term) 

The governors must meet  to consider reinstatement within 15 days of receiving notice of the exclusion.  

Exclusion will result in missing an exam 

If your child’s exclusion would mean that they would miss a public exam such as GCSE or a national curriculum test, you should contact the school immediately to find out what the arrangements are.  

The governors must meet to consider reinstatement within 15 days of receiving notice of the exclusion, taking reasonable steps to do so before the date of the exam.  

The governors’ meeting to consider the headteacher's decision to exclude 

The governors’ discipline committee (GDC) with three or five members will meet. In the meeting they must consider: 

• the circumstances of the exclusion  
• your's and your child’s views (if they took part in the meeting)  
• the interests of other pupils and people working at the school.  

They will look at the facts in light of what’s known as ‘the civil standard of proof’. So ‘on the balance of probabilities’ is it more likely than not that your child did what they are accused of?  

They must also consider whether the headteacher’s decision was lawful, reasonable and procedurally fair.  

After the meeting, the governors must inform you of their decision, either to uphold the headteacher’s decision (decline to resinstate), or to decide that it was unjustified (direct reinstatement). In your child is reinstated, the governors would add a note to their school record. 

Please see the Welsh Government’s Exclusion from Schools and Pupil Referral Units for further information.  
 

How you can make a claim against disability discrimination 

Autistic children are three times more likely to be excluded than pupils with no special educational needs. If you believe that your child’s autism, or the school’s failure to make reasonable adjustments, exacerbated a situation, you have the right to make a claim of disability discrimination to the  Special Educational Needs Tribunal for Wales (SENTW).  

SENTW has a How to make a claim booklet available for parents wishing to make a claim.  

You can make a claim even if your child doesn’t have a formal diagnosis.   

You should believe that the following applies:  

• your child should be considered disabled for the purposes of the Equality Act 2010, section 6 
• the exclusion was related to your child's disability 
• the exclusion wasn’t justified and there were other actions the school could have taken 
• the school could have made reasonable adjustments to prevent the situation that led to the exclusion.  

If you want to make a claim you should gather evidence to support your case. You must lodge a claim within six months of the exclusion. 

The tribunal will take a fresh look at the disability aspects of a fixed period exclusion. It’s not just a review of the governors’ decision. There is no fee for making a claim to the tribunal, but you will need to pay for legal representation, unless you are entitled to legal aid.  

Alternatively, you could choose a friend or a representative from a support organisation to represent you.  

Claims relating to fixed period exclusion typically take four to five months, depending on their nature and complexity. 
 

What are the alternatives to exclusion?  

Different educational provision 

Schools are allowed to arrange alternative educational provision for a pupil at a different site, including at pupil referral units (PRUs). This can be used to prevent exclusions, or to re-engage students in their education. 

When these placements work well, young people have a programme of activities allowing them to gain confidence, skills and qualifications. They then build on these when they are back in mainstream education. 

Managed move 

Sometimes parents and schools agree that a new start in a different school would benefit a child who is at risk of exclusion. The transfer can then be arranged between the two schools.  

This is known as a ‘managed move’ and is usually on a trial basis at first. However, schools shouldn’t use the threat of exclusion to persuade parents to take their child out of school.  

You don’t have to agree to a managed move if you don’t want to. 
 

Returning to school 

Schools should have a strategy for reintegrating pupils who return to school following a fixed period exclusion, including how to manage their future behaviour. 
 
Some schools will hold a reintegration meeting for parents and their child to discuss this, but they aren’t obliged to. The meeting can also be a chance for parents to air their views and concerns, particularly if they were not entitled to a meeting with the governing body to consider the headteacher’s decision to exclude. 
 

Avoiding future exclusions 

Schools should try everything possible to keep a pupil with special educational needs in education. They may do this by: 

• asking the local authority for a statutory assessment of special educational needs   
• calling for an early/emergency annual review, if the pupil already has a statement of special educational needs  
• seeking advice and support from the local authority and other professionals (for example educational psychologists, local autism advisory service, behaviour support services)  
• arranging autism training for staff   
• arranging extra help or different support  
• making ‘reasonable adjustments’ to policies and practices. 

You might like to share our guide Steps to avoid the exclusion of autistic pupils, with your child’s school.
 

Further help    

Read our information on Extra help at school in Wales

Read our information on Dealing with bullying   
 

Recommended reading 

Exclusion from Schools and Pupil Referral Units, National Assembly for Wales (2019).