Guidance

• School suspensions and permanent exclusions
• SEND code of practice
• Promoting the education of looked-after and previously looked-after children
• The Children Act 1989 guidance and regulations. Volume 2: care planning, placement and case review
• Designated teacher for looked-after and previously looked-after children
• Equality Act 2010: advice for schools
• Technical guidance for schools in England

How the Equality Act applies to schools

Public Sector Equality Duty

The Equality Act 2010 introduced a single Public Sector Equality Duty (PSED) (sometimes also referred to as the ‘general duty’) that applies to public bodies, including maintained schools and Academies, and extends to certain protected characteristics – race, disability, sex, age, religion or belief, sexual orientation, pregnancy and maternity and gender reassignment.

It has three main elements. In carrying out their functions, public bodies are required to have due regard to the need to:

• Eliminate discrimination and other conduct that is prohibited by the Act,
• Advance equality of opportunity between people who share a protected characteristic and people who do not share it,
• Foster good relations across all characteristics – between people who share a protected characteristic and people who do not share it.

What having “due regard” means in practice has been defined in case law and means giving relevant and proportionate consideration to the duty. For schools this means:

• Decision makers in schools must be aware of the duty to have “due regard” when making a decision or taking an action and must assess whether it may have particular implications for people with particular protected characteristics.
• Schools should consider equality implications before and at the time that they develop policy and take decisions, not as an afterthought, and they need to keep them under review on a continuing basis.
• The PSED has to be integrated into the carrying out of the school’s functions, and the analysis necessary to comply with the duty has to be carried out seriously, rigorously and with an open mind – it is not just a question of ticking boxes or following a particular process.

Further guidance can be found in Chapter 5 of Equality Act 2010: advice for schools.

Unlawful discrimination

It is unlawful for a school to discriminate against a pupil or prospective pupil by treating them less favourably because of their:

• sex;
• race;
• disability;
  • For disabled children, this includes a duty to make reasonable adjustments to any provision, criterion or practice which puts them at a substantial disadvantage.
• religion or belief;
• sexual orientation;
• pregnancy/maternity; or
• gender reassignment.

Excluding a pupil may constitute unlawful discrimination under the Equality Act 2010 in the following circumstances:

Direct discrimination

Direct discrimination occurs when one person treats another less favourably, because of a protected characteristic, than they treat – or would treat – other people. (Section 13). This applies to all protected characteristics.

Indirect discrimination

Indirect discrimination occurs when a “provision, criterion or practice” is applied generally but has the effect of putting people with a particular characteristic at a disadvantage when compared to people without that characteristic. (Section 19). This also applies to all protected characteristics.

Discrimination arising from disability

If a pupil is excluded due to something that is a consequence of their disability, and the exclusion cannot be objectively justified, this may amount to discrimination arising from disability. (Section 15). This provision applies only to disability.

Failure to make reasonable adjustments 

If a school fails to make reasonable adjustments for a disabled pupil, and this leads to exclusion, it may be discriminatory. (Sections 20 and 21). This provision applies only to disability.

How to make a claim of discrimination?

Discrimination can be raised during the usual exclusion appeal process, including at the governing board and Independent Review Panel stages. However, a separate discrimination claim can also be made. See Exclusion: Discrimination claims for guidance.

Pupils with Special Educational Needs and Disabilities

Guidance can be found in School suspensions and permanent exclusions (paragraphs 54-57).

This topic is also covered in Behaviour in Schools under ‘Behaviour expectations for pupils with Special Educational Needs and/or Disabilities (SEND)‘.

A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her. Many children and young people who have SEN may have a disability under the Equality Act 2010 – that is ‘…a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities’. ‘Long-term’ is defined as ‘a year or more’ and ‘substantial’ is defined as ‘more than minor or trivial’.

While not every incident of misbehaviour will be linked to a pupil’s SEND, behaviour will often need to be considered in that context. Schools should consider whether a pupil’s SEND has contributed to the misbehaviour and if so, whether it is appropriate and lawful to exclude.

Where a school has concerns about the behaviour, or risk of suspension and permanent exclusion, of a pupil with SEND, it should, in partnership with others (including where relevant, the local authority), consider what additional support or alternative placement may be required. This should involve assessing the suitability of provision for a pupil’s SEND. The ‘graduated response’ (Part 6, SEND code of practice) should be used to assess, plan, deliver and then review the needs of the pupil and the impact of the support being provided. For those with SEND but without an EHC plan, this may provide a point for schools to request an EHC assessment.

Pupils with an EHC plan

Where a pupil has an EHC plan, schools should contact the local authority about any behavioural concerns at an early stage and consider requesting an early annual review prior to making the decision to suspend or permanently exclude. Parents can also request an early review – IPSEA provide a useful template letter on their website.

Pupils who have a social worker, including looked-after children, and previously looked-after children

Guidance can be found in School suspensions and permanent exclusions (paragraphs 58-62) as well as Promoting the education of looked-after and previously looked-after children.

Definitions

• Looked-after child: A child is considered ‘looked after’ (also described as ‘in care’) if they are in the care of the local authority for more than 24 hours. This usually applies to children who are subject to a care order or are in Section 20 accommodation.
• Previously looked-after child: Previously looked-after children are those who are no longer looked after by a local authority in England because they are the subject of an adoption order, special guardianship order, or child arrangements order, or were adopted from ‘state care’ outside England and Wales.
• Children who have a social worker: It includes all children who have been assessed as needing or previously needing a social worker within the past 6 years due to safeguarding or welfare reasons. It includes all children aged 0 to 18 across all education settings subject to a children in need plan or a child protection plan.
• Designated Teacher: All schools have a designated teacher. They are responsible for championing the educational needs of LAC and care experienced children in their school. Further guidance on their role can be found here.
• Virtual School Head: Every council or local authority is required to have a Virtual School Head, who is the lead officer responsible for ensuring that looked-after children, previously looked-after children, and pupils with a social worker, or those who have had previously had one, are supported to achieve their academic potential and beyond.

Looked-after children

Where a looked-after child is likely to be subject to a suspension or permanent exclusion, the Designated Teacher should contact the local authority’s Virtual School Head as soon as possible. The Virtual School Head, working with the Designated Teacher and others, should consider what additional assessment and support need to be put in place to help the school address the factors affecting the child’s behaviour and reduce the need for suspension or permanent exclusion. Where relevant, the school should also engage with a child’s social worker, foster carers, or children’s home workers.

All looked-after children should have a Personal Education Plan which is part of the child’s care plan. This should be reviewed every term and any concerns about the pupil’s behaviour should be recorded, as well as how the pupil is being supported to improve their behaviour and reduce the likelihood of exclusion. Further information on the Personal Education Plan can be found in this guidance (pages 14-18) and this guidance (pages 35-37).

Previously looked-after children

Where previously looked-after children face the risk of being suspended or permanently excluded, the school should engage with the child’s parents and the school’s Designated Teacher. The school may also seek the advice of the Virtual School Head on strategies to support the pupil.

Children with a social worker

Where a pupil has a social worker, e.g. because they are the subject of a child in need plan or a child protection plan, and they are at risk of suspension or permanent exclusion, the headteacher should inform their social worker, the Designated Safeguarding Lead and the pupil’s parents to involve them all as early as possible in relevant conversations.

As strategic leaders, virtual school heads should have access to necessary data which enables them to maintain effective oversight of the progress of children with a social worker under their care, regardless of where they are educated. Virtual school heads should use this information to develop and implement targeted cohort-level interventions to improve attendance and attainment, reduce exclusions and persistent absence, and promote safeguarding of this cohort of children. Further guidance on the role of the Virtual School Head for children with a social worker is available in Promoting the education of children with a social worker and children in kinship care arrangements: virtual school head role extension.

Pupils from ethnic minority groups

Race is a protected characteristic under the Equality Act 2010, and the definition of race includes colour, nationality, and ethnic or national origins.

Schools need to make sure that pupils of all races are not singled out for different and less favourable treatment from that given to other pupils, and that no practices could result in unfair, less favourable treatment of such pupils.