Exclusion reviews – what you need to know

If you're concerned about discrimination in relation to your child’s exclusion, you should take your case to the First-tier Tribunal (Special Educational Needs and Disability). The tribunal can reinstate your child if your claim is successful.

Making a claim to the Tribunal does not prevent an independent review panel from considering issues of discrimination in reaching its decision. The review can either happen at the same time as a Tribunal, or delayed until the Tribunal has reached a decision. If delayed until after the Tribunal, you must request a review within 15 school days of the Tribunal’s final decision.

Special educational needs and/or Disabilities (SEND) experts

You can request a SEND expert to attend your review, even if the school doesn't recognise that your child has SEND.

However, the expert’s role won't include making an assessment of your child’s SEND.

The SEND expert will be a professional who has expertise and experience in SEND, with an understanding of the legal requirements on schools in relation to SEND and disability.

Their role will be as an expert witness who will provide impartial advice to the panel on how SEND might be relevant to the exclusion. Their advice will be based on the evidence provided to the panel, focusing on whether the school’s policies relating to SEND, or their application in relation to your child’s exclusion, were legal and fair.

The expert should not have (or have had in the past) any connection with the:

• school, local council or Academy Trust
• parents, pupil or siblings
• incident leading to the exclusion

...which might raise doubts about their impartiality.

We ask for any supporting evidence to be submitted to school.appeals@hertfordshire.gov.uk at least 6 school days before your hearing to ensure it is circulated in plenty of time for the panel to read before the review.  If you submit late evidence, the review may have to be adjourned for the panel to consider reading the document(s) you submit.
 

Physical evidence

If the reasons for the decision to exclude rest largely on physical evidence, and if the facts are in dispute, the physical evidence should be made available to the panel, where possible.

If there are difficulties keeping any physical evidence, photographs or signed witness statements will be acceptable.

 
New evidence

Both you and the school can put forward new evidence about the incident that led to the exclusion, including evidence that was not available to the headteacher or the governing body.

However, the school may not introduce new reasons for the exclusion.

 
Witness statements

To help them reach a decision, the panel will usually need to hear from those involved, either directly or indirectly. The governing body may call witnesses involved in the incident that led to the exclusion, including any alleged victims or any teacher other than the staff member who investigated the incident and interviewed pupils.

 
Written statements

In the case of witnesses who are pupils at the school, it might be better for the panel to be presented with written statements. Pupils only appear as witnesses if they do so voluntarily and with their parent's consent.

 
Anonymity

All witness statements must be attributed, signed and dated unless the
school has good reason to protect the identity of pupils.

The excluded pupil is entitled to know the substance behind the reason for their exclusion.
 

Police involvement or criminal proceedings

The panel will need to consider whether it can proceed or adjourn the hearing, pending the outcome of any police investigation and / or any criminal proceedings.

The panel will decide whether:

• your child did what they're alleged to have done. The more serious the allegation, the more convincing the evidence will need to be
• permanent exclusion was an appropriate and proportionate response by the school to that behaviour
• the headteacher and governing body complied with the law
• there's evidence that the process was flawed, important factors weren't considered or justice was clearly not done
• there has been racial or disability discrimination.

The panel can:

• uphold the decision to exclude your child
• recommend that the school reconsiders its decision
• quash the decision and direct that the governors consider the exclusion again.

The panel can only quash the decision by testing:

• Illegality – did the headteacher and / or the governors act outside the scope of their legal powers in taking the decision to exclude?
• Irrationality – was the decision so unreasonable that it was not one a sensible person could have made?
• Fairness (procedural impropriety) – was the exclusion process and the governors' consideration so unfair or flawed that justice was clearly not done?
  
  

The panel’s decision is binding on you, the excluded pupil, the school and the local council.

• You as parent or carer (or the excluded pupil, if over 18), accompanied by a friend or representative, including a legal representative or advocate.
• The headteacher of the excluding school, who may be represented by a legal or other representative.
• A representative of the governing body, who may be represented by a legal or other representative.
• A representative of the local council, in the case of a maintained school or pupil referral unit. They can also attend a review panel arranged by an Academy Trust as an observer, at the request of the parent. Where they are attending as an observer, the Academy Trust must consent to them making representations.
• the excluded child.
• an alleged victim (with parental permission if under 18).

Those providing evidence (such as witnesses or character referees) may attend at the discretion of the panel or clerk.

You, the headteacher, a governor, and any local council representative can also make written representations.

You can't complain simply because your review has been unsuccessful.

But if you have any queries about your hearing or the decision letter, contact the clerk.

Neither the clerk nor the county council can change the panel's decision.

However, if you feel that you were not given a fair hearing, or that procedures were incorrectly followed, you could complain to:

• Local Government Ombudsman (LGO) for maintained schools and Education Support Centres

or

• Education and Skills Funding Agency (ESFA) who deal with complaints relating to Academies.

The LGO and ESFA can only make recommendations if they find maladministration on the panel's part. They can't overturn the panel's decision.

If you think that the panel's decision is wrong in law, you can apply to the High Court for a judicial review.

You must do this no later than 3 months from the date of the panel’s decision.

If a judicial review is granted, the court would consider the lawfulness of the panel's decision. If it found the decision to be unlawful, the court could quash the decision.