Introduction

This Quick Guide sets out the law and practice on the role of the governing board in the exclusion review process.

For directions on attending the governing board's review hearing, read the Step-by-Step Guide: Attending the governing board hearing

For directions on writing arguments for the school's governing board hearing, read the Step-by-Step Guide: Preparing written arguments for the governing board hearing

The requirement that an exclusion be reviewed by the school's governing board

The governing board must meet to consider any exclusion that triggers a compulsory review within 15 school days from the date of exclusion, according to paragraph 100 of the exclusions guidance. 

The following exclusions should trigger a compulsory review:

• All permanent exclusions;
• Any suspension that takes the total number of school days that the student has been excluded to more than 15 in any one term;
• An exclusion that would result in a young person missing a national examination or test.

Exclusions that bring the total number of school days that a student has been excluded to more than five but less than 15 in any one term must be reviewed on request of the parents. The time limit for reviewing these exclusions is 50 school days.

The governing board must take reasonable steps to secure the attendance of the headteacher, the parent or guardian of the young person, and, where requested, a representative of the local authority. These parties must be invited and, if they choose to attend, given the opportunity to make representations.

This does not necessarily require the headteacher to be present, but in practice, it is the headteacher who decides whether or not to exclude someone, so it would be rare for them not to be present. If they are not, it is hard to say that the review has been satisfactory, as the family will not have had the opportunity to present a case to the school's governing board. 

The number of governors that must hear an exclusion depends on whether the school is maintained or an academy. In a maintained school, there must be at least three governors. An academy may have fewer governors if the school's articles of association specifically allow it. In practice, it is unlikely that you will find a panel with less than three governors.

The procedure for the governing board reviewing an exclusion

The typical format of a governing board hearing is: 

1. Introductions from the panel and attendees;
2. The school makes a statement;
3. The panel and family ask questions of the school;
4. The family make a statement;
5. The panel and school ask questions of the family;
6. The school makes a closing statement;
7. The family makes a closing statement.

While the order in which these components take place may vary, it is important that they all take place.

Fairness in governing board hearings

It is a requirement that the governing board ensure that the hearings are procedurally fair. Procedural fairness is a public law concept. It says that flawed or unfair processes will result in a decision to exclude someone from being challengeable even where the substance of the decision is not questioned. Every party that oversees exclusions has a duty to be fair. This includes the headteacher, governing board, and independent review panel.

There are therefore a number of standard practices that panel hearings should observe to satisfy this requirement. These include:

• All parties should enter and leave the hearing room at the same time. If one party leaves, no others should remain behind to ensure they cannot discuss the case with the governing board in private;
• All parties should be given equal time, and parties should not be allowed to speak over one another;
• Sufficient time should be allowed for the hearing so submissions can be fully heard;
• The panel should not pre-judge arguments or disallow parties from making arguments they want to raise in their defence.

These practices are not exhaustive, and a common-sense approach to fairness should touch on every part of the review process. There will inevitably be a disparity in power between the family and the school, as the school is likely to be well-practiced and has an existing relationship with the governing board. Fairness will, at times, require extra care to ensure that the family is able to engage with the process, even if this means giving liberties to the family that might not be available to the school.

For example, James is in the middle of his exclusion panel hearing. He wants to add a new point during his closing statement, but the school objects, saying that this is not the time to introduce new information. This is technically true, but James has never been through this process before and is alone against a practiced headteacher and before a governing board who are comfortable with the headteacher, being in a working relationship with them. In such circumstances, it would be reasonable to expect the school to know the process and stick to it, but greater care should be taken to ensure that James is able to present his case, even if he has not followed all the normal procedures.

You can find more information about the duty to be fair in the Quick Guide: A headteacher's power to exclude

The findings the governing board must make as a part of a review

The governing board must reach conclusions on questions of fact and law.

Findings of fact

The governing board must conclude what happened on the balance of probabilities. The governing board must consider the evidence presented to them but should also take steps to see any further evidence that they should reasonably expect to see before forming a conclusion.

For example, Jonathan is permanently excluded and attends a governor's panel. Jonathan provides a statement to say that he did not start the fight as he is accused of doing. The school says there is CCTV on it. The governing board fail to take steps to view the CCTV before deciding that Jonathan's statement is wrong. The governing board has failed to obtain relevant evidence that they could reasonably be expected to avail themselves of. This may constitute a procedural flaw.

Findings in law

The governing board will need to undertake a full review of the lawfulness of the headteacher's decision, applying all the relevant law.

For more information on the relevant law, see the Quick Guide: The headteacher's power to exclude

The governing board's duties once they have reviewed an exclusion

Minutes

The governing board must keep a minute of the meeting. This must be made available to all parties 'on request'.

You can read about how to obtain the minutes and ensure they are accurate in the Step-by-Step Guide: Requesting an independent review panel

Obtaining the decision

Most of the time, you will not get a decision on the day. The governing board is directed to communicate the decision to the family 'without delay'. Usually, in practice, you should expect to get the decision within the first week after the hearing.

The decision letter

The governing board's decision letter must set out the reasons for its decision in 'sufficient detail' to enable all parties to understand why it was made.

However, there is also a general public law duty to give reasons that provides greater clarity to the detail of the reasoning that must be provided. Families should be able to understand why their submissions were rejected, and understand the basis on which the governing board have come to their conclusions, not just to receive confirmation of the conclusions themselves.

For example: Sai's family told the governing board he should have been on the SEN register. The school explained that this was not necessary. Both parties provided evidence to support their positions. The governing board confirmed in their letter was that they "agreed with the school" without setting out why that was. This would likely constitute insufficient reasons.

Removing the young person from the school's admission register

A young person's name must be removed from the school admission register if the governing board upholds the exclusion and 15 school days pass without the family requesting a review by an independent review panel (IRP). If an IRP is requested within this time period, then the student's name cannot be removed until the IRP is resolved, either because it has sent the decision back to the governing board and they have completed their reconsideration or because the IRP has upheld the exclusion.