The Government recently published new statutory guidance applying to all exclusions which occur after 5th January 2015. The new guidance was to replace the previous 2012 guidance, which remains current.
One key change in the new guidance was to lower the bar for an exclusion by removing the reference in the 2012 guidance to exclusion being a last resort
Additionally, the 2012 guidance states:-
A 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 in the school.“
The new 2015 guidance provided:
It is for the headteacher to decide whether a child’s behaviour warrants permanent exclusion, though this is a serious decision and should be reserved for:
- a serious breach, or persistent breaches, of the school’s behaviour policy; or
- where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.
Under the 2012, the both conditions have to be satisfied. Under the 2015 guidance, only one condition needed to be satisfied. The threshold was also lowered to refer to “would be detrimental” rather than “would seriously harm” the education/welfare of others in the school.
Following a threat of judicial review proceedings by Just for Kids Law about the failure to consult on the new guidance and the lower threshold, the new exclusions guidance has been withdrawn. The DfE website indicates that it has been withdrawn and updated guidance will be issued in due course. It is unclear at this stage whether or not the withdrawal is due to a lack of consultation only and whether attempts will be made to re-introduce the lower threshold for exclusions once proper consultation has taken place.
Phil Storey
Bailey Wright & Co
