Parents have a duty to know the whereabouts of their child for the first five days of exclusion, and schools and LAs should provide suitable full-time education from the sixth school day of exclusion, states statutory guidance

From September 2007 new law and revised statutory guidance on exclusions came into force. The new law, Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units:

  • give parents a duty, for the first five school days of any exclusion, to ensure that their excluded child is not in a public place during normal school hours
  • requires schools (for fixed-period exclusions) and local authorities (for permanent exclusions) to provide suitable full-time education from the sixth school day of the exclusion

This article will summarise the law and guidance, and suggest best practice for implementation.

Duty on parents

For the first five school days of an exclusion, parents are responsible for ensuring that their excluded child is not in a public place during normal school hours (known as the ‘whereabouts’ clause).

If s/he is, parents are liable to receive a fixed penalty notice, unless they have ‘reasonable justification’.

If a school failed to give the parent notice of this duty, containing all necessary information, this would constitute reasonable justification and the parents could not be issued with a penalty notice if their child was found in a public place.

First five days

  • the law applies to ‘relevant schools’, which includes academies
  • ‘school hours’ cover any time during a school session or during a break between sessions
  • ‘public place’ is any highway, and any place to which at the material time the public have access, on payment or otherwise, as of right or by virtue of express or implied permission
  • ‘parent’ includes any individual (including foster carers), but would not include a local authority as a corporate parent
  • if a child is excluded before the start of the afternoon session, that day counts as the first day of exclusion
  • parents do not have to make educational provision during these five days; it is still the responsibility of the excluding school to send work home and to mark it

Vulnerable groups
It has been argued that these new provisions have a disproportionate effect on more vulnerable children and their families, including foster carers, poorer families and single parents.

For example, as a result of a Year 5 pupil with SEN being given a five-day fixed-period exclusion, but on return to school, being given a further five-day exclusion, his single mother was sacked from her employment when she asked for further time off work.

Day 6 provision

The duty on schools is placed on their governing body or proprietor to make suitable full-time provision available to pupils of compulsory school age from, at the latest, the sixth school day of a fixed-period exclusion, normally off-site (although on-site provision is possible if there are arrangements for shared on-site provision with at least one other school).

This does not have to be made for pupils in the final year of compulsory education who have already taken (or missed) their public examinations.

The notice that has to be served on parents must be given within time limits laid down in the regulations and must contain specified information, including where and when provision is to be made.

The duty on local authorities requires them to provide suitable full-time education from the sixth school day of any permanent exclusion from a relevant school (and for any fixed-period exclusion from a pupil referral unit).

It is important for heads of excluding schools to inform the local authority in whose area a permanently excluded pupil lives (if different from the excluding school’s authority) of the exclusion, as that authority will be responsible for making the Day 6 provision.

School’s not following the law
Some schools and local authorities are not following the new law. For example:

  • failing to give parents notice in writing or any schoolwork and advising pupils that they could be fined if found out and about
  • providing only one hour English tuition per week to an eight-year-old given a 10-day exclusion
  • sending home a young child on the autistic spectrum indefinitely, with no mention of alternative provision
  • informing the mother of a child who was given a 15-day exclusion that Day 6 provision was the local authority’s responsibility, as he was statemented
  • advising a Year 10 permanently excluded pupil that he could attend a PRU as alternative provision, but would not be provided with GCSE courses
  • telling a permanently excluded (non-autistic) pupil’s parent that the only provision available was in an autistic unit
  • not informing the social worker of a 15-year-old looked-after boy on a 16-day exclusion of the exclusion. Although his carer was informed, there was no mention of any alternative provision and when the carer rang the head, she was advised that the school was ‘trying to arrange two hours tuition two evenings a week’.

The Law and guidance

Section 100 of the Education and Inspections Act 2006 places the new duty on schools where a pupil is excluded for a fixed period. S101 places a similar duty on local authorities in relation to permanently excluded pupils by amending s19 of the Education Act 1996 (which covers exceptional provision of education in pupil referral units or elsewhere).

S103 contains the duty on parents in relation to excluded pupils and s104 has the requirements concerning the notice that must be given to parents advising them of these new requirements.

Finally, s105 details the penalty notice that can be issued in respect of the presence of an excluded pupil in a public place.

The detail is given in regulations:

  • Education (Penalty Notices) (England) Regulations 2007 (SI 07/1867)
  • Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 07/1870)
  • The relevant paragraphs in the revised statutory guidance are: 35-38, 48-49 and 75-79.

In the September 2006 exclusions guidance, Part 7 contained details of local authorities’ duties to provide full-time education and reintegrate permanently excluded pupils. This has been removed from the September 2007 version and is now in a separate web-based, amended and non-statutory version .

There are also useful practical guides available on the Internet:

  • Providing full-time education from the sixth day of an exclusion: Implementation and good practice guidance for schools, including PRUs and for local authorities (DCSF, April 07)

Finally, there are a couple of other documents that contain guidance that is relevant to this issue:

  • Guidance on Education-Related Parenting Contracts, Parenting Orders and Penalty Notices (DCSF, April 07; ref: 00530-2007BKT-EN)
  • Guidance for Local Authorities and Schools: Pupils Referral Units and Alternative Provision (DCSF, Jan 05; ref: LEA/0024/2005)

Practical implications

These new requirements impose a heavy duty on schools and authorities, similar to the new duties on parents. It is not always easy to meet them, but the DCSF has given some practical advice.

What if a fixed-period exclusion is converted or extended?
This is allowed in exceptional circumstances (usually where further evidence has come to light). Parents are responsible for their child’s whereabouts for the first five school days of the fixed-period exclusion AND then the first five school days of the permanent exclusion — 10 school days in total.

Schools can give a five-day fixed-period exclusion, and then after the child returns to school, give a further similar exclusion if another incident occurs. But it would be at least bad faith, if not illegal, for a school to keep giving five-day exclusions every time the pupil returns to school, claiming that as they are separate exclusions, the Day 6 duty on the school does not apply.

During the first five school days of any exclusion, the school’s only responsibility is that it should set and mark work. There is no statutory duty on it from Day 6 to provide suitable full-time education if it converts the fixed-period exclusion to a permanent exclusion before Day 6.

Can we remove a pupil who hangs around school gates during days one to five of an exclusion?
The DCSF suggest that local processes be agreed between schools and authorities. Only the police have the power to remove pupils from a public place — if the pupils are not committing a criminal offence police are unlikely to intervene.

A head (or other staff member) could contact the parents to establish if there is reasonable justification for the pupil being in a public place. It is unlikely that there would be an immediate solution.

Who is responsible for looked-after children during days one to five?
Police can remove a looked-after child found in a public place during the first five days of exclusion. The DCSF expects authorities to follow the spirit of this provision by ensuring that those looked-after children for whom they are responsible are not present in a public place when excluded, even though, as a corporate parent, they cannot be prosecuted for their failure to do so.

If the child is with foster carers, then they are responsible during the first five school days. The guidance says that schools and authorities may wish to consider making full-time educational provision for looked-after children earlier than the sixth day of exclusion.

Who issues a penalty notice for an excluded pupil picked up in a different authority from their school?

The DCSF suggests that schools and authorities agree procedure for such situations. In the absence of any agreement, in the case of a fixed-period exclusion, the authority of the school at which the pupil is registered should issue the penalty notice. Where the pupil has been permanently excluded, it is the authority where the pupil resides.

What is ‘suitable full-time education’?
The DCSF says that suitable full-time education for a particular pupil is a matter for governors, as is the case with decisions made by authorities as to what is suitable education for children who, by reason of illness, exclusion from school or otherwise, may not receive suitable education unless such arrangements are made for them.

Ultimately the courts will decide if the governors have exercised their judgment reasonably if a claim is brought that what has been provided is not suitable full-time education.

The DCSF view (which is not authoritative) is that ordinarily it should equate with the number of hours of education the pupil would expect to receive in school (from 21 to 25 hours depending on the pupil’s age).

The provision needs to be generally recognised as education, and must be suitable to the pupil’s ability, aptitude and any SEN s/he may have. Such education might be provided in another school or in a shared unit, or educational provision made by a private or voluntary sector provider.

If a child has a statement of SEN, the provision, in terms of SEN law, would have to be that specified in the individual child’s legally binding statement. Under the Day 6 regulations, the provision would have to be suitable full-time education as described above. If a school and/or local authority failed to make this provision, the families should be asking for an emergency review of the statement.

Rather than exclude pupils for a fixed period over five days could schools exclude for five days and then arrange on-site provision as part of the pupil’s reintegration?
When deciding to exclude a pupil for a fixed period, a head must consider what length of exclusion is appropriate. If the head considers a five day exclusion appropriate in response to an incident, it would be perfectly acceptable to arrange more tailored education in school on the pupil’s return.

Such arrangements could be included in the letter to the parents or carers. If the head wishes to exclude the pupil for 10 days, s/he would need to arrange suitable provision outside the school (or in an on-site facility shared with other schools) from days six to 10.

The DCSF views this new requirement as providing an opportunity for heads to review how they use exclusion within the local partnership of schools.

What level of supervision will be required for Day 6 provision? Can parents supervise their child? The Act does not say that the education must be supervised. But the DCSF view is that professional supervision arranged by the school is required to fulfil the legal requirements on Day 6 provision.

This is because the duty to make arrangements for the pupil’s education from day six rests with the governing body, and they might be improperly delegating their legal duty if they asked parents to provide the education.

How will the Day 6 requirement affect the practice where a head excludes a pupil for a fixed period while exploring other options?
These other options could include referral to a pupil placement panel that may not meet weekly. The DCSF welcomes the practice of heads exploring various options for pupils, as well as exclusion, but the law will require suitable full-time education to be provided from the sixth day.

It may not be practical for pupil placement panels to meet more often. Where such panels are in operation then processes may need to be reviewed to ensure that education is being provided while other options are being considered.

Heads should take care to avoid punishing twice for the same offence, and so must make it clear if a further exclusion might be imposed in these circumstances, and they must observe the limits on exclusions imposed by regulations.

Could a school avoid the fixed period exclusion Day 6 duty by giving a permanent exclusion?
The Day 6 duty on local authorities for permanent exclusions must not lead to schools imposing permanent exclusions rather than fixed period exclusions, in order to avoid having the Day 6 duty fall on them.

The types of incidents that lead to permanent exclusion are much more serious than those that can be dealt with by fixed-period exclusion.

The DCSF does not expect heads to exclude pupils from school permanently simply to evade
their responsibilities to arrange full-time education where a fixed period exclusion would be a more appropriate response.

Do remember that permanent exclusions are subject to review by the school’s governors and parents have a further right of appeal to an independent appeal panel.

Who is responsible for any additional transport costs for a pupil attending Day 6 provision?
When an excluded pupil is directed elsewhere for his or her education and this incurs additional transport costs, then the authority would be responsible for meeting these additional costs in the case of either a fixed period or permanent exclusion. The local authority will have to meet the cost if the provision is more than the statutory walking distance from home.

Once the pupil is transferred to the new site from Day 6, that becomes the nearest suitable school for these purposes.

What happens if an excluded pupil is found in public with a parent?
The presence of a parent does not give reasonable justification of being found in a public place during school hours. In this situation a penalty notice can be issued.

What sanctions are there for failing to make Day 6 provision?
While there are sanctions for parents whose child is found in a public place during the first five days of an exclusion without reasonable justification, there are no similar sanctions for schools or local authorities.

This is because the DCSF assumes that schools and authorities will wish to comply with the law. If a school or authority appears to be acting illegally, the parent could try to enforce the law by:

  • making a complaint to the governing body via the school’s own complaints procedure
  • contacting the exclusions officer for the school’s local authority
  • making a complaint to the local government ombudsman about delay or failure on the part of the local authority for permanent exclusions 
  • making a complaint to the Secretary of State that the governors and/or authority failed to discharge or exercise their legal powers reasonably
  • contacting their local councillor or MP to contact their local council or the Secretary of State (this is often more effective than making contact direct)
  • applying to the courts for judicial review

Let down by the system

These new requirements have now been in force for about nine months. The poor practice examples show that some of the most vulnerable in our society are being let down by a system which was supposed to improve the educational provision for excluded pupils.

Improvements schools can make

  • Parents must be properly and promptly advised of their and the school’s and local authority’s responsibilities.
  • Statutory Day 6 provision must be made by schools and local authorities
  • Schools should not be giving consecutive ‘less than six days’ exclusions to avoid the fixed period Day 6 duty applying to them
  • Unofficial exclusions are continuing and are more worrying now, because
  • if they are unofficial, parents are not being advised of their responsibilities or those of the school and local authority.

Find out more

Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education

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