Was the governing board’s decision unlawful because the tests in the exclusions guidance were not met?

Was the governing board’s decision unlawful because the tests in the exclusions guidance were not met?


The exclusions guidance includes a number of tests that must be satisfied for a permanent exclusion to be lawful.

The first limitation is the test of last resort. This test is included in Part one of the exclusions guidance. The last resort test requires that the headteacher only exclude a young person where it is the only option left available to them.

The second limitation is included in paragraphs 54–62 of the exclusion guidance. It is intended to protect looked-after children/previously looked-after children and children with Education, Health, and Care Plans (EHCPs). These groups are considered to be especially vulnerable to exclusions and therefore require additional protections. Headteachers must avoid permanently excluding these children wherever possible.

The third limitation is a requirement for the school to support young people who are at risk of exclusion before one materialises. The school should mitigate the risk of exclusion by supporting the young person with any unmet needs they have and engaging proactively with parents in supporting the behaviour of pupils with additional needs.

Next step? 

Consider the letter confirming the exclusion, the minutes, and any other record of the governing board's deliberations. See if there is any evidence in these documents that the governing board agrees that one of these tests was not satisfied by the headteacher when they decided to exclude the young person. Then answer the question: Did the governing board agree that the exclusion was in breach of the exclusions guidance but uphold it anyway?

If the answer is yes, consider using the Suggested Wording document: Argument to the IRP: Governing board's decision unlawful (exclusions guidance)

Once you have answered this question, click continue to proceed to the next step.



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This information is correct at the time of writing, 5th September 2023. The law in this area is subject to change.

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