The Department for Education has released an updated version of its statutory guidance ‘Suspension and Permanent Exclusion from maintained school, academies and pupil referral units in England’ (‘the Guidance’). The Guidance builds upon the changes issued in September 2022 and incorporates new legislative updates. This version of the Guidance will come into force on 1 September 2023 and will apply to all suspensions and permanent exclusions that have started on or after that date or any review hearings taking place after that date.
Headteachers and governing boards will be pleased to note that the new Guidance is not as wide ranging as last year’s guidance. The Guidance brings in two key changes. Greater clarity is now given around the cancellation of exclusions which had been a key introduction in September 2022. In addition, remote hearings for governing board reviews and independent review panels are legally possible with a change in the law to facilitate this.
The power to exclude did not come with anything that made clear such a decision could be cancelled. Since September 2022 the DfE has made clear this is a tool available to a headteacher. However, the Guidance provides welcome clarification as to what needs to be done when cancelling a suspension or permanent exclusion. There is an obligation for the headteacher to provide the reason for cancelling the exclusion when notifying the relevant parties which includes parents, the LA and (if applicable) the virtual school head or social worker. This means that headteachers will be challenged to account for the change in decision.
Where an exclusion has been cancelled, the Guidance is clear that a pupil must be back in school ‘without delay’. Whilst no firm time limit is specified, a school must take all reasonable and practicable steps to ensure that the pupil is reintegrated back into the school community. If the exclusion has been cancelled, then there is no reason they should not be attending school if it is in session. This means headteachers must consider about how they will manage the pupil back in school after the cancellation is issued and think about what steps can put in place to quickly integrate the pupil back into school prior to notifying parents and the pupil to ensure that no unreasonable delay is created. This is even more prominent for SEND pupils and taking appropriate steps to secure as smooth a reintegration as possible.
The Guidance also sets out how any time spent excluded prior to the cancellation should be treated. Any days spent out of school as a result of the exclusion and prior to the cancellation will count towards the maximum 45 days of exclusion permitted in any school year. Caution is needed here as the power to cancel cannot be exercised if a pupil has already accrued 45 days of exclusion or would accrue this at the point of taking a decision to cancel.
Also of note is that the clarification that any exclusion that has been cancelled will not have to be reviewed by the governing board. This makes sense as review is to test whether the decision to exclude should be upheld or reinstatement ordered. With no exclusion persisting there is nothing to review. This lowers the burden placed on governors. The Guidance also removes the requirement for the governing board to receive a termly report on the number of cancelled exclusions. It is still our recommendation that this forms part of the wider data on behaviour which is given to governing boards so they can monitor the use of cancellation and support the headteacher in finding ways to manage behaviour in an alternative way.
The update which may be welcomed most by headteachers, governors, and governance professionals alike will be the new powers introduced by statutory regulations and set out under the Guidance to hold remote governing board reviews and Independent Review Panels. The ability to hold remote panels has been available for admission appeals since the end of the pandemic and the Guidance now brings the exclusions process in line, in part, with that for admissions appeals. The power to hold remote review panels is not one which can be exercised as standard practice. A remote hearing can only be at the request of the parents (except in extraordinary circumstances) and parents can change their decision and request an in-person review at any point up to the meeting date.
It may also not always be appropriate to hold a review remotely. Governing boards should have consideration as to whether the meeting can be held fairly and transparently via remote access. In practice, this means that thought should be given as to what technology is used to hold the remote meeting – the Guidance does not specify that either telephone or video conferencing should be used. Microsoft Teams and Zoom would be familiar platforms to many in this context and can continue to be utilised for such matters. Governing boards should also be mindful as to whether parents have an appropriate, quiet space at home to hold the meeting and if they have internet access (or in more rural settings, if they have slower internet service) and how technological issues will be managed during the meeting. These meetings are to be held in private, so clear expectations need to be set to ensure all parties engaging can meet the standards required. In view of the broader engagement needed with social workers and virtual school heads (as applicable) the ability to use remote hearings is likely to drive up involvement of key stakeholders.
What does this mean in practice for schools and academy trusts?
Fundamentally there is no revolutionary change in the processes that school professionals will be experiencing when it comes to suspension and permanent exclusion. However, processes are being enhanced which does call for work to be done. Schools should be thinking about:
- How they can support the headteacher with a template that calls for all of the necessary information to explain why a suspension or permanent exclusion has been cancelled.
- How to build into existing suspension and permanent exclusion decision letter templates the ability to hold the reviews remotely with parental consent.
- Establishing a compliance checklist to ensure if reviews are held remotely that all of the criteria have been met before you proceed to avoid the risk of a finding of a procedural failure.
- Preparing to update references to the Guidance in documents and policies to ensure it refers to the new version from September 2023.
We have a depth of experience advising schools on exclusions including case management, advisory roles and training for all levels. If you require any assistance please do get in contact.
For further information, please contact:
Joe Orme-Paul, Hill Dickinson