Outline of the key Equality Points in the Government’s New Exclusion Guidance
01 September 2022
The government’s new statutory guidance on school exclusions comes into force this week. The guidance, which comes into effect on Thursday, 1 September 2022, contains some important changes from the previous 2017 guidance.
Throughout this new guidance, there is an emphasis on a school’s duties under the Equality Act 2010 not to discriminate against pupils on the basis of a protected characteristic and to ensure adequate, reasonable adjustments are effectively made for disabled pupils. The guidance also reiterates the school’s public sector duty to eliminate discrimination, advance equality of opportunity and foster good relations between those with protected characteristics and those without. The guidance is clear that these duties must be complied with when considering whether to exclude a pupil.
The guidance provides that schools must ensure that no policy or practice discriminates against pupils by unfairly increasing their risk of exclusion. For instance, a decision to exclude may be discriminatory if there is a failure to make reasonable adjustments for a pupil with a disability that can manifest itself in challenging behaviour which leads to expulsion. In addition, the guidance puts great emphasis on not “off-rolling” any student. Any discussions with parents (whether or not the child has SEN) should be very clear to avoid any potential allegations in relation to off-rolling.
The new exclusion guidance states that “Where a school has concerns about the behaviour, or risk of suspension and permanent exclusion, of a pupil with Special Educational Needs (SEN), a disability or an EHC plan, it should, in partnership with others (including where relevant, the local authority), consider what additional support or alternative placement may be required.” For those with an EHC plan, this might involve undertaking an early annual review, or for those with SEN without an EHC Plan, it may be necessary to assess the suitability of their current Special Educational Provision or arrange an EHC Plan assessment.
When dealing with the practice of directing pupils off-site, the guidance makes clear that if a pupil with a disability or SEN has been moved off-site, the duties under the Equality Act 2010 and the Children and Families Act 2014 continue to apply, so support should be put in place to meet any SEN, and reasonable adjustments should continue to be implemented.
The new guidance establishes that Headteachers have a responsibility to ensure that there is an established process in place for the governing board when reviewing a suspension or exclusion. As part of this responsibility, the Headteacher is asked to consider whether the governing board would benefit from additional training, including on behaviour management, routines, norms and consequences, disability awareness, the Equality Act 2010, the Children and Families Act 2014 and SEN provision.
The guidance is clear that the governing board is responsible for holding the executive leaders to account for the lawful use of exclusion, in line with the duties set out in law, including equality duties.
Governing boards have a key responsibility in considering whether excluded pupils should be reinstated. The guidance emphasises that when carrying out this duty, the board must comply with their statutory obligations in relation to pupils with SEN when administering the exclusion process, including using their ‘best endeavours’ to ensure the appropriate special educational provision is made for pupils with SEN.
PHP Law offers Equality Training which provides greater detail on the statutory duties when considering, processing and conducting exclusions. Please contact us to find out more.