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. We will be updating our information resources in line with the new changes.

You can read more about the new Act here.

Statistically, autistic pupils are more likely to be excluded from school than those without additional learning needs (ALN).This guide looks when and why a permanent exclusion might take place, who has the power to exclude, and other elements of the process. 

We cover what you can do if your child is excluded, the duty of local authorities and what to do if you think the exclusion amounts to disability discrimination. 

This information is for parents of pupils who attend a maintained school or pupil referral unit in Wales.  Independent schools and further education colleges have separate exclusion procedures which must be compliant with equality legislation.

We also have advice on Fixed term exclusion in Wales. 

What can a child be excluded for and who has the power to exclude? 

Exclusions must only be given for disciplinary reasons. A permanent exclusion should only be given for a serious breach, or persistent breaches, of the school's behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. 

Exclusion is not suitable for minor breaches of school rules, such as: 

• failure to complete homework 
• lateness or truancy 
• breaches of school uniform rules. 

Also, a school can’t exclude a child for  poor academic performance or because they have a disability or additional needs that the school feels it is unable to meet. 

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.  

When considering whether to exclude an autistic pupil, headteachers will need to ensure that reasonable adjustments (positive steps, changes in policy, practice and strategies) were in place to make sure that the pupil was able to fully participate in the education and other aspects of school life. 

An exclusion 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. 
   

What does a headteacher need to consider before deciding to exclude? 

Before deciding whether to exclude your child, the headteacher should: 

• make sure that 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 Equality Act 2010 
• 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 they’re satisfied on the balance of probabilities (it's more likely than not) that 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) 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 exclusion?  

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. 

They must let you, the school governors and the local authority (LA) know about the 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 for permanent exclusions is 15 school days from the date the governors were notified of the exclusion 
• letting you know of your right to see/have a copy of your child’s school record upon written request, and 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 an exclusion 
• details of the statutory guidance on exclusion  
• details of the Coram Children’s Legal Centre, who provide information and advice on education law. 

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 full-time education. This will be your child’s ‘home authority’ if the school is maintained by (or located within) a different LA. 
 

Additional Learning Needs (ALN) 

School governors have a legal duty to make sure that the necessary educational provision is made for pupils with additional learning needs (ALN). 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 ALN. 

If a pupil with ALN seems at risk of being excluded, the school should work in partnership with others (including the local authority as necessary), to see if additional support or alternative placement may be needed. For example, they should: 

• seek advice from the local authority and other professional advice and support 
• ask the local authority to carry out an assessment for an Individual Development Plan (IDP) 
• arrange an interim/emergency annual review if your child has a statement. 

If the school hasn’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. 
 
[Your address] 
[Name of Chair of Governors] 
Chair of Governors 
[Name of your child’s school] 
[Address of school] 
Date 

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 and look forward to hearing from you regarding a suitable date for us to meet. 
 
Yours sincerely 
 
[Signature] 

Meet with the governors 

The meeting with the governors must be held within 15 school days of the 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 a teacher or parent governor with a personal interest 
• 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 their consideration and have their views heard. This is particularly important if your child is under 18 and speaking about their own 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 the headteacher was justified in permanently excluding your child, they must also inform you of your right to ask that the decision is reviewed by an Independent Appeal Panel. 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 
• who you should send your review application to 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 
• your right to an independent appeal panel hearing even if you did not make a case to, or attend, the discipline committee 
• that you may, at your own expense, appoint someone to make written and/or oral representations to that panel and that you may 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 Independent Appeal Panel.
  

The Independent Appeal Panel 

The local authority must appoint a panel of either three or five members and a clerk. The clerk provides an independent source of advice on procedure for all parties. 

The panel will comprise of: 

• Chair - one lay person (in other words, someone who has never worked in a school in a paid capacity) 
• Education practitioner – one practitioner for panels with three members, or two if the panel has five members 
• School governor – one governor for three member panels, two for five member panels 

All panel members and clerks should receive suitable training.  

The role of the panel is to review the governors’ decision not to reinstate your child. After this, the panel can decide:  

• to uphold the governors’ decision to exclude  
• to overturn the governors’ decision to exclude, and direct that your child returns to school within five days 
• that a permanent exclusion should not have taken place but a return to the school is not practical. 

The Independent Appeal Panel’s decision is binding on you, your child, the governors, the headteacher and the local authority.  

If you think the Independent Appeal Panel has made errors in the way it’s carried out the process (maladministration), you can complain to  the Public Services Ombudsman for Wales. This complaint must be made within one year of the alleged maladministration. 

If you think the Independent Appeal Panel’s decision is flawed, you can apply to the High Court for a judicial review. So can the governors and the LA. 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 is suitable.
 

Disability discrimination   

If you feel the exclusion amounts to disability discrimination you can make a claim under the Equality Act 2010 to the Special Educational Needs Tribunal for Wales (SENTW). You must lodge your claim within six months of the day on which your child was excluded. 
 

Duty to provide suitable education 

Local authorities are required to provide 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 local authority of each permanent exclusion so that arrangements can be put into place. Section 7 of the Education Act of 1996 states that any alternative provision that is arranged must be suitable for your child’s age, ability/aptitude and any special educational needs they might have. 
 

Recommended reading 

Exclusion from schools and pupil referral units, Welsh Government Guidance 2019