Statutory guidance and regulations on exclusion:
The headteacher’s power to exclude

A guide to the law¹

1. Only the headteacher² of a school can exclude a pupil and this must be on disciplinary grounds. 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. A fixed period exclusion does not have to be for a continuous period. In exceptional cases, usually where further evidence has come to light, a fixed period exclusion may be extended or converted to a permanent exclusion.

2. Pupils whose behaviour at lunchtime is disruptive may be excluded from the school premises for the duration of the lunchtime period. In such cases the legal requirements in relation to exclusion, such as the headteacher’s duty to notify parents, still apply. Lunchtime exclusions are counted as half a school day for statistical purposes and in determining whether a governing body meeting is triggered.

3. The behaviour of pupils outside school can be considered as grounds for exclusion³. This will be a matter of judgement for the headteacher in accordance with the school’s published behaviour policy.

4. The headteacher may withdraw an exclusion that has not been reviewed by the governing body.

5. Any decision of a school, including exclusion, must be made in line with the principles of administrative law, i.e. that it is: lawful (with respect to the legislation relating directly to exclusions and a school’s wider legal duties, including the European Convention of Human Rights); rational; reasonable; fair; and proportionate.

6. Headteachers must take account of their legal duty of care when sending a pupil home following an exclusion.

7. When establishing the facts in relation to an exclusion decision the headteacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true, rather than the criminal standard of ‘beyond reasonable doubt’.

8. Under the Equality Act 2010 (“the Equality Act”) schools must not discriminate against, harass or victimise pupils because of their: sex; race; disability; religion or belief; sexual orientation; because of a pregnancy / maternity; or because of a gender reassignment. For disabled children, this includes a duty to make reasonable adjustments to policies and practices.

9. In carrying out their functions under the Equality Act, the public sector equality duty means schools must also have due regard to the need to:

• eliminate discrimination and other conduct that is prohibited by the Equality Act;
• advance equality of opportunity between people who share a protected characteristic and people who do not share it; and
• foster good relations across all characteristics – between people who share a protected characteristic and people who do not share it.

10. These duties need to be taken into account when deciding whether to exclude a pupil. Schools must also ensure that their policies and practices do not discriminate against pupils by unfairly increasing their risk of exclusion. Provisions within the Equality Act allow schools to take positive action to deal with particular disadvantages affecting one group, where this can be shown to be a proportionate way of dealing with such issues⁴.

11. Headteachers and governing bodies must take account of their statutory duties in relation to special educational needs (SEN) when administering the exclusion process. This includes having regard to the SEN Code of Practice.

12. It is unlawful to exclude or to increase the severity of an exclusion for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet, or for a reason such as: academic attainment / ability; the action of a pupil’s parents; or the failure of a pupil to meet specific conditions before they are reinstated. Pupils who repeatedly disobey their teachers’ academic instructions could, however, be subject to exclusion.

13. ‘Informal’ or ‘unofficial’ exclusions, such as sending pupils home ‘to cool off’ are unlawful, regardless of whether they occur with the agreement of parents or carers. Any exclusion of a pupil, even for short periods of time, must be formally recorded.

14. Maintained schools have the power to direct a pupil off-site for education to improve his or her behaviour⁵. A pupil can also transfer to another school as part of a ‘managed move’ where this occurs with the consent of the parties involved, including the parents. However, the threat of exclusion must never be used to influence parents to remove their child from the school.

Statutory guidance on factors that a headteacher should take into account before taking the decision to exclude

15. A decision to exclude a pupil permanently should only be taken:

• in response to 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.

16. The decision on whether to exclude is for a headteacher to take. However, where practical, headteachers should give pupils an opportunity to present their case before taking the decision to exclude.

17. Whilst an exclusion may still be an appropriate sanction, headteachers should take account of any contributing factors that are identified after an incident of poor behaviour has occurred. For example, where it comes to light that a pupil has suffered bereavement, has mental health issues or has been subject to bullying.

18. Early intervention to address underlying causes of disruptive behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. Headteachers should also consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour. Such assessments may pick up unidentified special educational needs but the scope of the assessment could go further, for example, by seeking to identify mental health or family problems⁶.

19. Where a pupil has received multiple exclusions or is approaching the legal limit of 45 school days of fixed period exclusion in an academic year, headteachers should consider whether exclusion is providing an effective sanction.

Statutory guidance to headteachers on the exclusion of pupils from groups with disproportionately high rates of exclusion

20. The exclusion rates for certain groups of pupils are consistently higher than average. This includes: pupils with SEN; pupils eligible for free school meals; looked after children⁷; and pupils from certain ethnic groups. The ethnic groups with the highest rates of exclusion are: Gypsy / Roma; Travellers of Irish Heritage; and Black Caribbean communities.

21. In addition to the approaches on early intervention set out above, headteachers should consider what extra support might be needed to identify and address the needs of pupils from these groups in order to reduce their risk of exclusion. For example, schools might draw on the support of Traveller Education Services, or other professionals, to help build trust when engaging with families from Traveller communities.

Statutory guidance to headteachers on the exclusion of pupils with statements of SEN and looked after children

22. As well as having disproportionately high rates of exclusion, there are certain groups of pupils with additional needs who are particularly vulnerable to the impacts of exclusion. This includes pupils with statements of special educational needs (SEN) and looked after children. Headteachers should, as far as possible, avoid excluding permanently any pupil with a statement of SEN or a looked after child.

23. Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs. In relation to looked after children, schools should co-operate proactively with foster carers or children’s home workers and the local authority that looks after the child.

24. Where a school has concerns about the behaviour, or risk of exclusion, of a child with additional needs, a pupil with a statement of SEN or a looked after child, it should, in partnership with others, (including the local authority as necessary) consider what additional support or alternative placement may be required. This should involve assessing the suitability of provision for a pupil’s SEN. Where a pupil has a statement of SEN, schools should consider requesting an early annual review or interim / emergency review.

¹ Section 51A Education Act 2002 and regulations made under that section.
² ‘Headteacher’ includes acting headteacher by virtue of section 579(1) of the Education Act 1996.
³ Section 89(5) of the Education and Inspections Act 2006. Non-statutory advice on maintained schools’ powers to discipline outside of the school are set out in Behaviour and Discipline in Schools – A Guide for Headteachers and School Staff (2012).
⁴ Non-statutory advice from the Department for Education is available to help schools to understand how the Equality Act affects them and how to fulfil their duties under the Act. Guidance on the Equality Act.
⁵ Section 29A of the Education Act 2002. Statutory guidance on the use of this power is to be issued shortly. With parents’ agreement academies can place a pupil either full-time or part-time in another educational setting.
⁶ Non-statutory guidance for head teachers of maintained schools on the place of multi-agency assessments within a school’s behaviour policy is provided by, Behaviour and Discipline in Schools – A Guide for Headteachers and School Staff (2012).
⁷ As defined in section 22 of the Children Act 1989.