Introduction

This Quick Guide provides information on the law and practice relating to a headteacher's power to exclude someone.

For directions on preparing arguments for the governing board hearing, see the Step-by-Step Guide: Preparing written arguments for the governing board

For directions on preparing arguments for the independent review panel, see the Step-by-Step Guide: Preparing written arguments for the independent review panel

What are the powers that a headteacher has to suspend a young person?

A headteacher has the power to suspend a young person for a fixed period of time for disciplinary reasons. Paragraph 1 of the exclusions guidance makes clear that this power rests with the headteacher only and cannot be transferred or delegated to another member of the school staff. In a maintained school, ‘headteacher’ includes an acting headteacher by virtue of Section 579(1) of the Education Act 1996.

Paragraph 1 of the exclusions guidance also explains that a headteacher’s power suspend a young person is limited to a total of up to 45 school days in any one academic year. A young person may be suspended for one or more fixed periods and a suspension does not have to be for a continuous period.

The power to set an exclusion on a fixed-term basis does not require the period to be continuous. Paragraph 9 of the exclusions guidance explains that a suspension can be for a part of the day rather than the whole day.

What are the powers that a headteacher has to permanently exclude a young person? 

A headteacher has the power to permanently exclude a young person. Under Paragraph 1 of the exclusions guidance, this must be for disciplinary reasons.

The effect of using this power is that the young person is removed from the school’s register and will not be allowed to return to the school’s grounds indefinitely, other than to attend a review of the exclusion. Their name will not be removed from the register until any challenge has been completed, including an IRP or claim for discrimination in the First Tier Tribunal.

The 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 such as staff or pupils in the school.

School exclusion guidance

The law on school exclusions is found in the exclusions guidance, which was most recently updated in September 2023. This guidance is binding on schools, local authorities, and pupil referral units under the terms of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012. 

What are the limits on these powers?

There are several factors that limit the use of the headteacher's powers to exclude:

Last resort

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.

For example, Joan is permanently excluded for persistent disruptive behaviour. However, before excluding her, the school has not tried to understand the cause of her behaviour, has not taken steps to support her, and has not contacted her family to get their support with behavioural plans. It turns out that Joan has unidentified special educational needs and would benefit from pastoral support. By failing to try this to improve Joan’s behaviour prior to exclusion, the school has failed to use exclusion as a last resort.

Looked after children/previously looked after children and pupils with an EHCP

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.

For example, David was taken into care last year and now lives in supported accommodation in the care of the local authority. He is permanently excluded for pushing a teacher during an argument with them. While this is a serious incident, the school should have factored in David’s status as a looked-after child before taking the decision to permanently exclude him. If there is any way at all for David to remain in the school, then the exclusion should not proceed.

Mitigate the risk

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. Because of the number of excluded young people who have underlying, unmet needs, this is one of the most important protections in place to shield vulnerable students from avoidable exclusion.

For more information on additional needs and the steps a school can take, read the Quick Guide: Special educational needs and disabilities.

Where schools are concerned about a young person’s behaviour, they should take steps to identify any underlying needs or circumstances that might be causing that behaviour.

Where needs are identified, schools should take steps to address them.

For example, Ajay is permanently excluded for persistent disruptive behaviour. The school has been concerned about his behaviour since the beginning of the last school year, when the school implemented a stricter, "zero-tolerance" behaviour policy. The school was alerted by CAMHS some months ago that Ajay has autistic spectrum disorder and that this would cause difficulty for him to comply with the new policy without support. No support was put in place.

In this example, the school has failed to explore the causes of Ajay’s deteriorating behaviour, despite being aware of it. Then, when CAMHS reached out to the school, they failed to take effective action despite the known vulnerability to exclusion experienced by young people with autistic spectrum disorder. This exclusion may therefore be in breach of the statutory guidance.

The principles of public law

The term "public law" refers to the rules that tell public bodies how to make decisions that affect people. Most schools are subject to the principles of public law. The exceptions are independent schools.

Public law can get complicated quickly. However, for the purpose of challenging school exclusions, it is best to take a common-sense approach to applying the principles. Each principle describes a generally recognisable concept, and, while there is a lot of law that underpins each one, the people hearing the exclusion challenge are unlikely to be legally trained and are often receptive to a less technical argument.

There are four relevant principles of public law. They are:

• Proportionality;
• Reasonableness;
• Lawfulness;
• Fairness.

Proportionality

Proportionality describes the balancing exercise between the impact of exclusion on the young person and the benefit gained by the school for having excluded them.

This exercise should be considered in two ways. Firstly, does the punishment fit the behavioural infraction? If the impact of exclusion on the young person outweighs the seriousness of the misbehaviour, then the exclusion would be disproportionate.

For example, Sam comes to school without the proper uniform and is excluded for five days in the middle of preparations for her GCSE exams. Clearly, the impact of the exclusion will be huge for Sam, and the behaviour did not warrant such a heavy-handed punishment. This exclusion is likely to be disproportionate.

Secondly, does the benefit to the school community at large justify the personal cost to the young person? If the school is excluding the young person in the interests of other members of the school community, but the benefit to that community will be small whereas the impact of the exclusion will be significant, then the exclusion may be disproportionate.

For example, Amir gets into a fight at school and is permanently excluded. This was an out-of-character incident and appears to have come about after Amir lost a parent and was struggling to adjust to it. The fight resulted in a broken wrist for the other child. Amir does not live near the pupil referral unit and, if excluded, will need to travel a long way to that school. At the same time, he is trying to get to grips with his bereavement.

Clearly, this was a very serious incident, but it appears to be circumstantial and therefore isolated. The benefit to the school community is therefore likely to be small, while the personal cost to Amir will be very large. The exclusion is likely to be disproportionate.

Reasonableness

Reasonableness requires that the conclusions that are drawn in deciding to exclude are of good quality. It is sometimes referred to as the requirement that decisions be "rational". There are three elements.

It was described in the 1948 case of Associated Provincial Picture Houses Limited v Wednesbury Corporation, and is known as "Wednesbury reasonableness ".

Firstly, did the school take into account factors that it ought not to have taken into account? Relying on factors or information that are not relevant may mean that the decision to exclude is irrational, and it will fail the reasonableness test.

For example, James is permanently excluded, and in supporting her decision, the headteacher says that they were frustrated by the number of calls and emails she received from James’s mum. There is no power to exclude based on the parent’s behaviour, and so this should not have been a factor in the headteacher’s decision. The decision to exclude may therefore have been unreasonable.

Secondly, did the school fail to take into account factors that it ought to have taken into account? If there are relevant factors that the headteacher has not considered before deciding to exclude, then the decision may be irrational, and therefore the exclusion may be unreasonable.

For example, Jin is excluded for being suspected of selling drugs after they were arrested by the police. The police then dropped the investigation, finding that there was no evidence to support the allegation. The school proceeded with a permanent exclusion anyway, without considering the fact that the police never actually substantiated the charge. The headteacher has not taken relevant circumstances into account, and the decision to exclude may therefore have been unreasonable.

Thirdly, was the decision to exclude so unreasonable that no reasonable headteacher would have made it? If the decision of the headteacher was made after considering the right information but plainly does not follow logically from the information available, then it may be considered unreasonable.

For example, Sai is excluded for punching another student. Sai denies involvement, and CCTV shows him in a different location at the time of the attack. The victim does not know who punched them. Regardless, the headteacher proceeds with the exclusion on the basis that Sai did it. The headteacher has failed to come to a logical conclusion based on the information available, and the decision is likely to be unreasonable.

Lawfulness

Lawfulness describes whether a decision was made under a power granted to a school. If a headteacher chooses to exclude someone but cannot point to a lawful power that allowed them to do so in the circumstances, then the decision was unlawful.

For example, Kazim is permanently excluded for failing all of his mock GCSE exams. There is no lawful power to exclude someone for any reason other than discipline. Academic performance is not a disciplinary issue; therefore, the exclusion is outside of the headteacher’s lawful powers and can be described as unlawful.

Fairness

Fairness describes the requirement that the process of reaching a decision to exclude someone be appropriate, balanced, and fair. A process that prevents a young person from presenting their side of the story or does not follow the proper procedures is likely to be unfair. An unfair process will undermine the decision made, even if the decision itself is technically the correct one.

For example, Sophie was excluded for five days after alcohol was found under her desk while she was in a sports class in another part of the school. They did not ask her about it or take a statement from her, instead calling her social worker to collect her from the sports fields immediately. They then took statements from students who were in the class, all of whom had previously been involved in a long-running feud with Sophie. Without taking the time to understand whether it was Sophie's or how she says it got there, it is likely that this process was unfair.

Fairness is sometimes described as "natural justice". There are some specific, established procedural requirements that commonly arise in exclusion proceedings.

The following requirements rest with the headteacher when deciding to exclude:

• Paragraph 4 of the exclusions guidance: The headteacher should give the young person the opportunity to present their case before excluding;
• Paragraph 64 of the exclusions guidance: The headteacher should write to the family without delay to confirm the exclusion and the reasons for it;
• Paragraph 63 of the exclusions guidance: Notice should initially be given in person or by telephone, so that the family can ask questions of the headteacher;
• Paragraph 76 of the exclusions guidance: The headteacher should point the family towards sources of free and impartial information;
• Paragraph 73 of the exclusions guidance: The information provided by the headteacher to the family should be clear and easily understood. If there is a language barrier, the headteacher should seek translation services where practical.

The following requirements rest with the governing board when reviewing the exclusion:

• Paragraph 112 of the exclusions guidance: To circulate information to all parties in advance of the exclusion hearing;
• Paragraph 112 of the exclusions guidance: To allow the family to be accompanied by a friend or representative;
• Paragraph 112 of the exclusions guidance: To make reasonable adjustments to facilitate the attendance of all parties;
• Paragraph 121 of the exclusions guidance: To facilitate all parties' having their representations heard;
• In common law, there is a requirement that a person be allowed to have their defence fairly heard. This means that any submissions, even controversial ones or ones that lead to accusations of misconduct against school staff, must be heard if they can reasonably be expected to affect the governing board's decision-making.
• In common law, there is a requirement that a quasi-judicial body such as the governing board must avoid the appearance of bias. This was described in the 1923 case of R v Sussex Justices Ex Parte McCarthy in the following terms:

But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

• Paragraph 131 of the exclusions guidance: The governing board are required to write to the family to confirm their decision without delay.
• The governing board has a duty to give reasons for their decision, unless there is good reason not to. This concept comes from the case Oakley v South Cambridgeshire District Council & Anor. The level of detail required must be sufficient for the family to understand the reasons for it and, where they have made submissions against the exclusion, why those submissions were rejected.

The independent review panel shares many of these duties. They have the additional requirement that they be independent from all the parties and have no conflict with them.

Discrimination law

Discrimination exists both in UK domestic law under the Equality Act 2010 and in the European Convention on Human Rights, both of which apply to exclusions.

Discrimination under the Equality Act is more straightforward and likely to apply in a broader range of circumstances. Discrimination under the ECHR is covered in the section on “human rights law” below.

Under Section 4 of the Equality Act there are nine protected characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

There are five types of discrimination, covered in separate sections of the Equality Act, that are relevant to school exclusions.

These are:

• Direct discrimination;
• Indirect discrimination;
• A failure to make reasonable adjustments;
• A failure of the public sector equality duty;
• Victimisation.

Direct discrimination

Direct discrimination is included in Section 13 of the Equality Act.

Direct discrimination describes any instance where a person is singled out for detrimental treatment on the basis of a protected characteristic or because they are thought to have a protected characteristic. If a school excludes someone because they share a protected characteristic, where they wouldn’t have been excluded otherwise, that will likely constitute direct discrimination.

For example, Emeterio has Down’s syndrome. He has been permanently excluded for smoking cannabis on the road behind the school. Later, emails released by the school through a subject access request show that this probably wouldn’t have led to the exclusion of other students. A subject teacher has said in an email that Emeterio’s needs on the basis of his disability are demanding. They feel this is a good opportunity to make things more straightforward for the school and save some money by excluding him. This would likely constitute direct discrimination.

Indirect Discrimination

Indirect discrimination is included in Section 19 of the Equality Act. It describes a situation in which everyone is being treated the same, but this disadvantages a person because of a protected characteristic.

For indirect discrimination to exist, there must be a "provision, criterion or practice" that would put any person with a specific protected characteristic at a "particular disadvantage" when compared to someone without that protected characteristic.

In exclusions, a provision, criterion, or practice is likely to refer to school policies and disciplinary procedures. Any routine behaviour of a school, whether it is written down in their policies or just something that staff have come to do on a day-to-day basis, can form the basis of discrimination.

A“particular disadvantage” includes many of the detriments experienced by young people who are excluded. It can include being punished, being at risk of exclusion, or being unable to sit exams that the young person would otherwise have been able to sit.

For the disadvantage to be discriminatory, it must be one that would be suffered by any young person who shares a particular protected characteristic, not one that would only be suffered by one young person specifically.

For example, Sally has been excluded for a fixed period of four weeks for failing to attend a Saturday detention. She did not attend because she is Jewish and observes the Sabbath from Friday sunset to Saturday sunset. She had offered to attend multiple weekday detentions, but the school refused, saying that detention on Saturdays was "policy".

Failing to accommodate observant Jewish students, despite the significant disadvantage it inflicts upon them in the form of four weeks of missed education, is likely to constitute indirect discrimination. Any Jewish student in the same situation would suffer this disadvantage, but students who are not Jewish would not.

Failure to make reasonable adjustments

There is a requirement in Section 20 of the Equality Act to make reasonable adjustments which applies specifically to the “disability” protected characteristic.

For a person to be considered disabled under the Equality Act, they must show that they have suffered from a physical or mental impairment for 12 months or more that has had a substantial effect on their ability to carry out day-to-day activities.

If a young person is disabled, then the school may have to make reasonable adjustments to premises, policies, and practices to prevent them from being disadvantaged. Commonly, in exclusions, this will mean amending policies that would otherwise put them at a particular risk of exclusion.

For example, Elna has a diagnosed depressive disorder complicated by anxiety. She has experienced this for years. She finds it difficult to communicate with other people and form positive relationships with children and staff. Her school has a policy that students must hand their phones in at the beginning of the day. Elna uses her phone as a form of reassurance, allowing her to contact her mum in a crisis. She repeatedly refuses to hand it in and regularly gets into trouble for it. Her mother complains to the school. The school explains that they sympathise, but they say it is policy and everyone is subjected to it.

One day, Elna is caught in school with her phone, and a teacher tries to confiscate it. Elna becomes upset and panics. She barges past the teacher to hide in an empty classroom; she barricades the door closed with a chair. She is excluded for 10 days.

The school refused to make adjustments to their behaviour policy to account for Elna’s disability. The result was that her vulnerability to exclusion was amplified. This may constitute discrimination on the basis of a failure to make reasonable adjustments.

Public sector equality duty

Schools have a duty contained within Section 149 of the Equality Act to foster equality of opportunity between people of different protected characteristics. This is not a duty owed to an individual person but is active and always present. It means that schools must always be acting to ensure every one of their students, no matter their characteristics, has equality of opportunity.

This is important because statistics repeatedly show that certain young people, such as those from Black Caribbean backgrounds, Gypsy/Roma children, and children with special educational needs, are consistently and hugely overrepresented in the number of excluded people.

Schools must work to reduce this gap by supporting vulnerable children and ensuring policies and practices are inclusive. This is a statutory duty that is always present, and so schools must be proactive rather than reacting to events that arise on an ad hoc basis.

In exclusion cases, examining whether this duty is met may require reviewing the school’s policies to see what practices are in place to foster diversity and equality of opportunity.

Victimisation

Victimisation is included at Section 27 of the Equality Act. It is designed to prohibit public bodies from retaliating against a person who raises concerns about discrimination against them.

It describes four "protected acts" and requires schools to refrain from subjecting someone to detrimental treatment as a result of undertaking any of them.

The protected acts are:

• Bringing proceedings under the Equality Act;
• Giving evidence or information in connection with proceedings under the Equality Act;
• Doing any other thing for the purposes of or in connection with the Equality Act;
• Making an allegation, whether expressly or otherwise, that the school or another person has contravened the Equality Act.

For example: Joan complains to the headteacher that her five-day fixed term exclusion was as a result of racial discrimination. The headteacher calls Joan at the end of the exclusion to say that it will be followed with a permanent exclusion because she made "spurious allegations against staff and the school". This will likely constitute victimisation under the Equality Act.

Human rights

Note: Human rights law is complicated and more difficult to apply to exclusions than other law contained in this guide. 

The Human Rights Act brings the rights included in the European Convention on Human Rights into UK law. 

The right to education

Children have a right to education under Article 2 of Protocol 1 to the European Convention on Human Rights. There is no right to be educated at a particular school. This means that the right is not considered to prevent an exclusion. However, in any area where schools are less readily available and an exclusion may prevent a young person from receiving education at all, it may mean that the exclusion would breach a child’s right to education and be unlawful as a result.

Right to private and family life

The right to private and family life is included in Article 8 of the European Convention on Human Rights. It means that a young person’s right to retain local, familial connections must be considered in an exclusion. A headteacher should also consider the general impact on the young person’s private and home lives. This provision is unlikely to prevent an exclusion going ahead, unless the impact on a child’s family life is particularly significant.

The High Court has considered this question in the case of R (on the application of LG) v Tom Hood School, which was heard in 2009. The Court explained that:

I readily accept that there may be cases in which the permanent exclusion of a pupil from, say, the only school in an area that he or she had attended for years could engage Article 8 rights.

This test is difficult to satisfy and would require circumstances that are out of the ordinary.

For example, Chris attends a primary school where his two brothers and sister all attend in different years. The school is the only one in his village and is a short walk from his house. He is permanently excluded. The headteacher should consider the impact this might have on his family life before proceeding, and he will need to be satisfied that the exclusion is proportionate to the impact on Chris, considering he will have to leave his family connections and travel out of town for school.

Discrimination in the human rights act

In addition to the Equality Act detailed above, discrimination is also prohibited by the European Convention on Human Rights in Article 14. Both direct and indirect discrimination are covered by this article.

Article 14 only protects a person from being prevented from enjoying their other rights under the Human Rights Act. It is not a protection against discrimination in any context outside of the Human Rights Act. However, a young person has a right to education, and exclusions do not engage this right per se. A legal dispute only needs to be within the realm of a convention right for Article 14 to be applicable. Clearly, exclusions are in the realm of the right to education, and so they should apply.

The Human Rights Act contains an additional protected characteristic, which is not in the Equality Act, called "other status". Other status has been interpreted very broadly and may protect children on the basis of vulnerabilities, including: living below the poverty line, being a victim of abuse, being an asylum seeker, or having experienced adverse childhood experiences.

The case of Biao v Denmark, which the European Court of Human Rights heard in the Grand Chamber in 2016, considered the question of "other status" and defined it as "differences based on an identifiable, objective, or personal characteristic by which individuals or groups are distinguishable from one another."

For example, Brooke has been the victim of childhood sexual exploitation. This has had a significant impact on the way she bonds with her peers, often attempting to forge inappropriate sexual relations with other students. Her caseworker tells the school that she needs support with this because it is a compulsive attempt to validate herself as a result of her adverse childhood experiences and may lead to her putting herself at risk.

However, as a result of making sexual comments with other students and engaging in sexual activity, she is permanently excluded.

Her status as a "victim of childhood sexual exploitation" is likely to be an "other status" for the purpose of Article 14. Her right to an education should not suffer, either directly or indirectly, because of this status. The school has failed to safeguard her, instead applying the behaviour policy to her without amendment. This may be indirect discrimination under the Human Rights Act and therefore unlawful.