School exclusions: the headteacher’s powers

The Department for Education has published its updated “Suspension and Permanent Exclusion” guidance for maintained schools, academies, and pupil referral units in England, which will be in force from September 2023.

The power to suspend or permanently exclude a pupil is a power which is granted only to the headteacher of the school. These are sanctions which should be used when warranted to create a safe, calm, and supportive environment for pupils and staff to work and learn safely. A pupil may be suspended for one or more fixed periods of up to 45 school days in each academic year, or in some circumstances they may be permanently excluded.

Making the decision to suspend or permanently exclude a pupil

The decision by a headteacher to suspend or permanently exclude a pupil must be made in line with the principles of administrative law. This means that the decision must be lawful, reasonable, fair, and proportionate. The headteacher’s decision to suspend or permanently exclude a pupil may be procedurally flawed if these criteria are not met. We can provide you with support in ensuring that these criteria are met, and in particular, consideration of the criteria is evidenced, to ensure that where a suspension or permanent exclusion is used as a sanction, it is used appropriately.

It is important to keep in mind when deciding whether suspension or permanent exclusion would be an appropriate sanction, that the headteacher must apply what is known as the ‘civil standard of proof’. Oftentimes, the circumstances surrounding a behaviour incident can be complex, and various versions of events may unfold. Headteachers should therefore remember that they only need to satisfy themselves that it is “more likely than not” that an incident happened; it is not necessary to evidence beyond reasonable doubt that an incident happened. This can be particularly helpful where, for example, witness statements from various pupils tell different versions of events.

When reaching a final decision as to whether a pupil should receive a suspension or permanent exclusion as a sanction for a behaviour incident, the pupil’s view should be taken into account, keeping in mind their age and their understanding, unless taking their view would not be appropriate.  If it’s considered appropriate for the pupil’s views to be taken into consideration, they should be given support to help them to express their view and should be informed as to how their views have been taken on board as part of the decision-making process.

What about behaviour outside of school?

Whilst it is likely that the primary reason for suspension or permanent exclusion will relate to behaviour in school, the headteacher’s powers to suspend or permanently exclude a pupil can be used to sanction pupil behaviour outside of the school. This should be set out clearly in your school behaviour and exclusions policies.

During the period of exclusion

During a permanent exclusion, it is the headteacher’s responsibility to ensure that reasonable steps are taken to set and mark work for the pupil during the first 5 days of the suspension or permanent exclusion.

Headteachers should also keep in mind that, where a pupil has special educational needs and/or disability, the school’s legal duties in this respect continue. For example, the headteacher will need to ensure that reasonable adjustments are made where necessary to support disabled pupils during a period of suspension.

Can the decision be reversed?

Pursuant to the updated guidance, the headteacher’s ability to withdraw or rescind an exclusion – meaning that the exclusion is cancelled – prior to the governing board meeting to consider whether the pupil should be reinstated has been updated. Where this occurs, the pupil’s parents, the governing board and the local authority will need to be notified and, if relevant, the social worker and virtual school head. The notification must set out the reason for cancelling the suspension or permanent exclusion. However, a permanent exclusion cannot be cancelled if the pupil has already been excluded for more than 45 school days in a school year, or if they will have been so by the time the cancellation takes effect.

Where a suspension or permanent exclusion is reversed, there is no requirement for the governing board to meet to consider the reinstatement. However, the parents should be offered the opportunity to meet with the head teacher to discuss the cancellation of the suspension or permanent exclusion.

Whilst the guidance in respect of cancelling a suspension or permanent exclusion has been updated, it remains minimal. We therefore recommend that you seek advice and support if you consider that the decision to suspend or permanently exclude a pupil may have been wrongly made, either because of further facts which have come to light since the decision was made, or because of a potential procedural error.

Practical steps for your school

Whilst the updated guidance does not come into force until the start of the next academic year, it is important that you keep abreast of the changes and update your school’s policies accordingly. To ensure that decisions are made in accordance with the guidance and with appropriate procedure is place, we recommend that headteachers ensure that their school has in place:

• A reliable method for monitoring the maximum 45 days permitted in a school year out of school due to exclusion
• A formal process for informing all relevant parties of the suspension or permanent exclusion
• Steps to reintegrate pupils whose suspensions have ended or been cancelled, or whose permanent exclusions have been cancelled, and to support their future behaviour
• A process for arranging, at short notice, suitable full-time alternative education for pupils receiving suspensions over five school days.

If you require any support with your school’s approach to behaviour management, including ensuring that your behaviour and exclusions policies are effective and comply with current guidance, or supporting you through the suspension or permanent exclusion procedure, including any consequential parent complaint, please do get in touch.