Charity threatens judicial review over revised school exclusions guidance

A charity for young people has threatened to bring judicial review proceedings against the Department for Education over the introduction of revised statutory guidance for exclusion from schools.

The revised guidance – Exclusion from maintained schools, academies and pupil referral units in England – was issued on 9 December and became effective from 5 January.

Just for Kids Law has sent the DfE a pre-action letter over a failure to consult. It also alleges a breach of the public sector equality duty.

Rachel Knowles, Senior Education and Community Care Solicitor at Just for Kids Law, said the guidance had been issued out of the blue.

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“On previous versions of the guidance they [the DfE] did consult so there has been a practice in the past of consultation,” she said.

Knowles argued that the revised version of the guidance took away significant benefits to vulnerable children at a greater risk of exclusion in particular, such as those with protected characteristics (for example a disability), or who are from a particular ethnic background.

The Government had lowered the threshold for excluding quite substantively, she said.

Paragraph 15 of the revised guidance now reads:

“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.”

Knowles noted that the test had been changed to an ‘either/or’ requirement, when previously both bullet points needed to be satisfied. A public could potentially now be excluded even if they had not breached the school’s behaviour policy.

The previous version of the test had also said a decision to exclude a pupil permanently should only be taken where allowing them to remain would “seriously harm” – rather than simply be “detrimental to” – the education or welfare of the pupil or others in the school.

“From a local authority perspective this means a potential increase in exclusions, in pupils going to pupil referral units and pupils being out of education whom the local authority is responsible for,” Knowles added.

On the second ground of challenge, Just for Kids Law argues that the Department for Education has failed to consider its duties under the PSED and failed to have any consideration of the consequences for vulnerable groups before publication of the guidance.

“They have provided no evidence they have given any consideration to it,” Knowles said.

The Department for Education still has several days in which to respond to the charity’s pre-action letter.