School Exclusions
A Summary for Parents
Introduction
Children and young people with learning disabilities have the same rights as nondisabled pupils to an education that will enable them to reach their full potential.
Education should be meaningful and purposeful, building not just knowledge but also
self-esteem and skills for life, enabling all young people to become successful
learners, confident individuals, responsible citizens and effective contributors
Ideally, all school staff should recognise the possible physical, cognitive, emotional
and/or behavioural challenges faced by children and young people with learning
disabilities and receive adequate training to fully support pupils to meet these
challenges successfully in the learning environment. ENABLE Scotland believes that
exclusion should be seen as a last resort, not a means of managing challenging
behaviour.
Currently (as of 2012), pupils with a disability are 1.6 times more likely to be
excluded than those without a disability and children with additional support needs
(ASN) are five times as likely to be excluded. Exclusion impacts negatively on a
young person’s life well beyond their school years.
This guidance is only intended to be a brief overview of the legislation and
procedures around school exclusions. For full details, refer to the Scottish
Government’s national guidance for schools and local authorities:
http://www.scotland.gov.uk/Publications/2011/03/17095258/0.
Information on your own education authority’s exclusion policies should be available
on the relevant council website.
Legislation
In Scotland, the power to exclude rests with local authorities, under regulation 4 of
the Schools General (Education) Regulations 1975 as amended. Most education
authorities choose to give this power to exclude to head teachers and senior
management.
The Education (Scotland) Act 1980 also places a duty on education authorities to
ensure that suitable alternative education provision is in place for a learner who is
excluded.
It is the responsibility of the local authority to produce their own local policies and
procedures on exclusion. These are usually adapted from the Scottish Government’s
national guidance (referred to above) but taking account of local circumstances. The
local authority should ensure that these policies are readily available in a variety of
formats, and easily understood.
ENABLE Scotland, Charity No. SC009024.
In any exclusions procedure, the views of the learner and those of their parent(s)
must be taken into account. Education authorities must also consider the facts and
circumstances surrounding the incident leading to the potential exclusion.
Procedures
The learner’s parent(s) or the learner (if 16 or over) must be informed in writing or
orally of the decision to exclude, on the same day that the decision is made. At the
same time, a meeting must be arranged to discuss the exclusion within 7 days of the
decision.
The length of exclusion depends on the individual circumstances and is decided by
the education authority, but must take into account all circumstances. However long
the exclusion period, alternative education provision and, where necessary,
additional support as required must be provided.
Exclusions, and any appeals decisions, must be recorded. However where there is a
successful appeal exclusion, the record would not be disclosed to a third party.
Parents and young people aged 16 and over (and children over the age of 12 who
are deemed to have legal capacity) have the right to appeal against exclusions
decisions. In the first instance they would appeal to an education appeal committee
set up by the education authority. Further appeals against the decision of an
education appeal committee would be heard by the sheriff court. (See below for
grounds of appeal to the Additional Support Needs Tribunal in cases involving
disability discrimination.)
Sending a child home without parental consent and recording this as an exclusion
(commonly referred to as a cooling off period) is unlawful and may leave the local
authority open to legal challenge by either the parent or the young person.
Alternatively a section 70 complaint can be made to Scottish ministers. (See relevant
section of the Toolkit for guidance on how and when to make a section 70
complaint.) Cooling-off periods (usually half a day) in themselves are not unlawful
and can be used productively as part of an agreed plan with parents, but should be
formally recorded as exclusions and carefully monitored.
Exclusion of learners with additional support needs (ASN) or disability
Where a child or young person with ASN and/or disability is at risk of exclusion, the
education authority must take all reasonable steps to ensure that appropriate
provision can be made to meet the learner’s additional support needs during the
period of exclusion. A local authority must continue to provide additional support as
required, under the terms of the Education (Additional Support for Learning)
(Scotland) Act. For example if a learner has been assessed as requiring support
from a Speech and Language Therapist, this should continue.
Where a child has a disability as defined by the Equality Act 2010 - a physical or
mental impairment that has a substantial and long-term adverse effect on his/her
ability to carry out normal functions - schools must not discriminate against a learner
by excluding them because of their disability or for behaviour arising as a
ENABLE Scotland, Charity No. SC009024.
consequence of their disability. More detailed guidance on education and exclusion
can be found on the Equality and Human Rights Commission website here:
http://www.equalityhumanrights.com/advice-and-guidance/education-providersschools-guidance/exclusion-from-school/
The powers of the Additional Support Needs Tribunal Scotland have been extended
to include cases related to discrimination in education, including exclusions for
reasons directly related to their disability. Further information can be found on their
website here: http://www.asntscotland.gov.uk/asnts/935.html
For advice on all matters relating to additional support for learning, contact
Enquire.
Helpline: 0845 123 2303
Email: info@enquire.org.uk
Website: www.enquire.org.uk
For legal advice on exclusions, contact Govan Law Centre’s Education Law
Unit.
Tel: 0141 445 1955
Email: equality@edlaw.org.uk
Website: www.edlaw.org.uk
ENABLE Scotland, Charity No. SC009024.