Investigation and decision-making stage

The school exclusion statutory guidance does not provide detailed instructions on the investigation and decision-making stage. There is a section titled ‘Factors to consider before making a decision to exclude,’ which mainly focuses on alternatives to exclusion and pupils with additional needs, both of which are covered in earlier pages of the ‘The Law’ section of the Hub.

Schools do have some discretion in how they carry out an investigation. The statutory guidance is not intended to provide a full account of what schools can or cannot do. For example, it does not discuss interviewing or collecting statements from pupils and staff who witnessed an incident, or reviewing CCTV footage. Where appropriate, schools would generally be expected to take these steps to ensure the decision is properly informed. If a school does not conduct a thorough and fair investigation, it may struggle to justify its decision in the event of an exclusion being challenged.

There are several relevant provisions listed in Part 3 of the guidance:

Public law principles

Any decision of a headteacher, including suspension or permanent 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 suspensions and permanent exclusions and a school’s wider legal duties);
• reasonable;
• fair; and
• proportionate.

Standard of proof

When establishing the facts in relation to a suspension or permanent 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.’ This means that the headteacher should accept that something happened if it is more likely that it happened than that it did not happen.

The pupil’s views

Headteachers should take the pupil’s views into account, considering these in light of their age and understanding, before deciding to exclude, unless it would not be appropriate to do so. They should inform the pupil about how their views have been factored into any decision made. Where relevant, the pupil should be given support to express their view, including through advocates such as parents or, if the pupil has one, a social worker.

Contributing factors

Whilst an exclusion may still be an appropriate sanction, the headteacher should take account of any contributing factors identified after an incident of misbehaviour, such as a recent bereavement.

Duty to inform parents about an exclusion

Initial notification

Whenever a headteacher suspends or permanently excludes a pupil they must, without delay, notify parents or the excluded pupil (if they are 18 years or older) of the period of the suspension or permanent exclusion and the reason(s) for it.

Although this must not delay notification, notification should be in person or by telephone in the first instance as this would allow parents to ask any initial questions or raise concerns directly with the headteacher.

Notification in writing

A headteacher must also, without delay, after their decision, provide parents with the following information in writing:

• the reason(s) for the suspension or permanent exclusion;
• the period of a suspension or, for a permanent exclusion, the fact that it is permanent;
• parents’ right to make representations about the suspension or permanent exclusion to the governing board and how the pupil may be involved in this;
• parents’ (or an excluded pupil if they are 18 years or older) right to make a request to hold the meeting via the use of remote access and how and to whom to make this request;
• how any representations should be made;
• the days on which they must ensure that the pupil is not present in a public place at any time during school hours. These days are the first five school days of a suspension or permanent exclusion (or until the start date of any full-time alternative provision or the end of the suspension where this is earlier); and
• where there is a legal requirement for the governing board to consider whether the pupil should be reinstated, that parents or an excluded pupil (if they are 18 years or older) have a right to attend a meeting, to be represented at that meeting (at their own expense) and to bring a friend.

They should also provide relevant sources of free and impartial information, such as the statutory guidance on school exclusions and helplines that can offer advice and support.

How should the notice be provided? 

Effective methods for providing the information may include email or text message, giving the notice directly to the parents, or sending the information home with the suspended or permanently excluded pupil. Where information is sent home with the pupil, the headteacher should consider sending a duplicate copy by an alternative method or confirming that the information has been received.

The notice should be provided without delay, but the exclusion is not invalid solely because notice was not given within the required time.

Notification of alternative provision

If alternative provision is being arranged, then the following information must be included with this notice where it can reasonably be found out within the timescale:

• the start date for any provision of full-time education that has been arranged for the child during the suspension or permanent exclusion;
• the start and finish times of any such provision, including the times for morning and afternoon sessions where relevant;
• the address at which the provision will take place; and
• any information required by the pupil to identify the person they should report to on the first day.

Where this information on alternative provision is not reasonably ascertainable by the end of the afternoon session on the first day of the suspension or permanent exclusion, it may be provided in a subsequent notice, but it must be provided without delay and no later than 48 hours before the provision is due to start. The only exception to this is where alternative provision is to be provided before the sixth day of a suspension or permanent exclusion, in which case the information can be provided with less than 48 hours’ notice with parents’ consent.

Who else should be notified of an exclusion?

Governing board

The headteacher must, without delay, notify the governing board of:

• any permanent exclusion (including where a suspension is followed by a decision to permanently exclude the pupil);
• any suspension or permanent exclusion which would result in the pupil being suspended or permanently excluded for a total of more than five school days (or more than ten lunchtimes) in a term; and
• any suspension or permanent exclusion which would result in the pupil missing a public examination or national curriculum test.

Social worker and Virtual School Head

Whenever a headteacher suspends or permanently excludes a pupil they must, without delay, after their decision, notify the social worker, if a pupil has one, and the Virtual School Head, if the pupil is a looked-after child, of the period of the suspension or permanent exclusion and the reason(s) for it.

Local authority

The local authority must be informed without delay of all school exclusions regardless of the length of the exclusion. Notifications must include the reason(s) for the suspension or permanent exclusion and the duration of any suspension or, in the case of a permanent exclusion the fact that it is permanent.

Converting an exclusion

The law does not allow for extending a suspension or ‘converting’ a suspension into a permanent exclusion.

In exceptional cases, usually where further evidence has come to light, a further suspension may be issued to begin immediately after the first suspension ends; or a permanent exclusion may be issued to begin immediately after the end of the suspension.

Cancelling an exclusion

The headteacher can cancel any exclusion that has already begun (or one that has not yet begun), but this can only happen when the governing board has not yet met to consider whether the pupil should be reinstated. An exclusion may be cancelled if new evidence comes to light, or if there was a misunderstanding or incorrect application of the school’s behaviour policy.

Where an exclusion is cancelled:

• The headteacher must notify the parents, the governing board, the LA and the pupil’s social worker and VSH as applicable, without delay. The notification must also provide the reason for the cancellation;
• The governing board’s duty to consider reinstatement ceases, and there is no requirement to hold a meeting to consider reinstatement;
• Parents (or the excluded pupil if they are 18 years or older) should be offered the opportunity to meet the headteacher to discuss the circumstances that led to the exclusion being cancelled which should be arranged without delay;
• The pupil must be allowed back into the school from which they were excluded without delay.
• Any days spent out of school as a result of any exclusion, prior to the cancellation will count towards the maximum of 45 school days permitted in any school year.