Can you challenge your child’s exclusion from school?

Finding out that your child is going to be excluded from school, whether temporarily or permanently, is never easy to deal with. You likely have a lot of questions about what this means for your child’s education and their future, including what you can do to fight the exclusion.

For families in these situations, there are a number of options, so it is important to understand your child’s legal rights and what steps you can take to challenge an exclusion, as well as what to do if an exclusion cannot be overturned.

Temporary exclusion versus permanent exclusion

The first thing to understand is that there are two different types of exclusion, with very different consequences for your child:

Fixed term exclusion – This is where a child is excluded temporarily for a set number of days. A child can be temporarily excluded multiple times in the same year for a total of up to 45 days. If a fixed term exclusion is set to last more than five days, then the child’s school must make alternative arrangements for their full-time education.

Permanent exclusion – Also referred to as ‘expulsion’ or ‘being expelled’, this is where a child is removed from their school’s admissions register and will not be allowed to return. If a child is permanently excluded from their school, then their Local Authority must make arrangements for the child’s full-time education by the sixth day of their exclusion.

What reasons are there for a school to exclude a child?

There are various reasons that a school may choose to exclude a child temporarily or permanently, but generally it will be because they are considered to have broken school rules, disrupted other children’s education, put other pupils at risk and/or broken the law.

Examples of reasons that may be given for school exclusion include where a child is found to have:

• Broken school rules or policies in a serious or repeated fashion
• Behaved in a seriously disruptive way
• Put other pupils in danger
• Prevented other pupils from learning
• Repeatedly failed to follow academic instructions
• Brought a deadly weapon onto school premises
• Sold or attempted to sell illegal drugs
• Committed a crime on school premises

Grounds for appealing school exclusion

If you believe your child’s exclusion was unfair, then it may be possible to challenge the basis for the exclusion. There can be various grounds for challenging an exclusion, depending on the situation.

Reasons to challenge an exclusion include where you believe:

• School authorities have made a mistake i.e. that your child did not do what they are accused of
• Exclusion is unnecessarily harsh and lesser disciplinary action would be more appropriate e.g. a detention or suspension
• The reason for the exclusion was unlawful e.g. that your child’s disability, special educational needs, race, sex or another protected characteristic were a factor in the decision to exclude them
• There are mitigating factors, such as your child suffering a bereavement, mental health issues or bullying that should have been taken into account

Knowing which of these reasons may be applied to your child’s situation can be difficult, so it is strongly recommended to seek expert advice from an education law specialist at the earliest opportunity.

How to appeal your child’s school exclusion

When a school takes the decision to exclude your child, they must inform you as soon as possible. Initially this may be face-to-face or over the phone, but the school must also notify you promptly in writing.

The written notification must include:

• The reasons for your child’s exclusion
• How long the exclusion will last (in the case of fixed term exclusions)
• Your right to appeal and how the appeals process works

Appealing a fixed term exclusion

You have the right to ask the school’s governing body to overturn a fixed term exclusion if it is for more than five days or means your child will miss a public exam or national curriculum test. A school’s governing body cannot overturn fixed term exclusions of five days or fewer.

Appealing a permanent exclusion

If your child has been permanently excluded, then you should be invited to a review meeting with the school governors within 15 school days of the exclusion. You should make sure you are prepared for this meeting, with clear arguments about why the exclusion should be overturned and any evidence you need to support your case.

What to do if your child’s exclusion is not overturned

Should the school governors decide not to overturn your child’s exclusion, you can request an independent review by your local council or academy trust. A review panel will conduct a hearing to determine whether the decision to exclude your child was illegal, irrational or did not follow the correct procedure. The school governors are required to tell you how to ask for an independent review.

The independent review panel cannot overturn the exclusion, but it can take the following actions:

• Uphold the decision to exclude your child
• Recommend the schools’ governing body reconsider the decision to exclude
• Quash the school governors’ decision and direct them to reconsider the exclusion

If you do not get the outcome you want from an independent review and you feel the hearing was not conducted properly, you can refer the matter to the Local Government Ombudsman (LGO) or, for academies and free schools, the Education & Skills Funding Agency (ESFA).

Challenging an exclusion on grounds of discrimination

If you believe your child was excluded due to discrimination in relation to a protected characteristic, then you can make a claim to an appropriate court or tribunal. This must be done within six months of the exclusion taking place.

Making a discrimination claim in relation to a school exclusion can be very challenging, with a high standard of evidence required, so it is essential to seek specialist legal advice.

Finding a new school place for a child following exclusion

If your child is permanently excluded, your Local Authority has a legal duty to make arrangements for their full-time education. They should talk through your child’s options with you and what you need to do e.g. applying to a different school part way through the academic year, which is known as an ‘in year’ or ‘mid-year’ admission.

If this is the first time your child has been permanently excluded, then your Local Authority still has the normal obligation to comply with your preferences for which school your child should attend wherever possible.

However, if your child has been permanently excluded before, then this obligation to comply with your preferences is suspended for two years from the date of their most recent exclusion.

If you have any issues with getting your child admitted into a new school, then you should review your right to appeal a school admissions decision.

Consult our expert education law solicitors about challenging a school exclusion

At IBB Law, we are passionate about protecting children’s right to the best education possible. If your child has been excluded or if at risk of exclusion, we can advise on your child’s rights and what you can do to protect their education.

Our team has extensive experience advising parents on this challenging issue, so can provide seasoned expertise to help ensure your child is treated fairly.

We offer an initial consultation for a fixed fee of £500 + VAT to discuss your child’s situation and provide clear, practical advice on your options. This consultation can take place over the phone or via video conferencing to suit you.

To book your initial consultation or to find out more about how we can help with school exclusion advice, please contact our education law senior administrator, Rachael, on 01895 207230 or  educationteam@ibblaw.co.uk