Included, engaged and involved part 2: preventing and managing school exclusions

Section 8 Exclusions - Management of, resolution and ways forward

The following section should be considered in the wider context of the 'Guiding Principles' ( Section 3) which state that the foundations for schools, learning establishments and education authorities is a whole school ethos of prevention, early intervention and support.

Where prevention and early intervention strategies have been exhausted and exclusion is deemed to be necessary, this section outlines the legislation, regulations and procedures which inform how school exclusions should be carried out, including providing guidance on good practice. Guidance on decision-making, communicating, rights of appeal, recording and the provision of education during the period of exclusion are also outlined. Finally, this section considers the process of resolution and future supports.

Key legislation relating to exclusion

The power to exclude a child or young person from school rests with the relevant local authority. It is, however, open to a local authority to delegate the power to exclude children or young people to senior management level within a school. The following legislation needs to be incorporated into local exclusion guidance. It should not, however, be relied upon as an exhaustive consideration of the legal duties which may now or in the future, be imposed on local authorities.

The power to exclude a pupil from a school and the circumstances under which a pupil may be excluded; and the requirements on local authorities where a decision to exclude has been taken are set out in Regulations 4 and 4A of the Schools General (Scotland) Regulations 1975 ("the 1975 Regulations"), as amended ^[36] and the Schools General (Scotland) Amendment (No. 2) Regulations 1982 ^[37] (S.I. 1982/1735).

Regulation 4 provides that an education authority shall not exclude a pupil from school unless the authority:

"are of the opinion that the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulations, or disciplinary requirements of the school"; or

"consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there. "

Exclusion from school of a child or young person other than in conformity with the terms of the 1975 Regulations as amended has no statutory authority. Failure to comply with the 1975 Regulations as amended in such circumstances may render the authority open to legal challenge by the parent(s), or the pupil (where the pupil is a young person or is a child with legal capacity in terms of the Age of Legal Capacity (Scotland) Act (1991)) ^[38] or to action by the Scottish Ministers under section 70 of the Education (Scotland) Act 1980, as amended.

Section 21 of the Education (Scotland) Act 2016 ^[39] inserts new section 2ZA into the Education (Scotland) Act 1980, providing Ministers with the power to prescribe the number of learning hours to be made available (by education authorities and grant aided schools) to school pupils. The regulation making power provides the necessary flexibility to accommodate situations in which it would be legitimate for an authority/manager of a grant aided school to offer a reduced level of provision, such as exclusion. The Scottish Government will consult fully and widely in accordance with the requirement in section 2ZA(11) before exercising this power.

In the event of an exclusion of a child receiving their 600 hours of early learning and childcare ( ELC) entitlement at an authority managed provider or a partner provider, the child still has a legal right to receive the hours they might miss due to having been excluded. However, it is very unlikely that a child would be excluded from ELC in the first place, and as ELC is an entitlement and is not compulsory, the parent would also need to request the hours to be made up by the local authority. If an eligible pre-school child, who receives their funded ELC entitlement at a partner provider, is excluded from that partner provider, it would fall to an education authority to make alternative arrangements to provide the entitlement to the child elsewhere.

Exclusion policy should also be seen in the wider context of an authority's duties to:

• "…secure that there is made for their area adequate and efficient provision of school education…." (under section 1 of the Education (Scotland) Act 1980);

• "…secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential." (under section 2(1) of the Standards in Scotland's Schools etc. Act 2000) ^[40] ;

• "…have due regard, so far as is reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity." (under section 2(2) of the Standards in Scotland's Schools etc. Act 2000 in regard to section 2(1); and

• "…have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents." (under section 28 of the Education (Scotland) Act 1980).

Therefore, in any relevant procedures, including appeals against the decision to exclude, the views of the child or young person, as well as those of the parent(s) should be accurately represented and appropriately taken into account. As the views of child or young person may diverge from their parent(s), it is clearly not sufficient to assume that the views of the parent(s) automatically reflect those of the child or young person.

Further consideration should also be given by the local authority to the following legislation:

The Equality Act (2010) provides that it is unlawful to exclude a pupil because of a protected characteristic. Section 85 (2) provides that:

• The responsible body of such a school must not discriminate against a pupil-
  (a) in the way it provides education for the pupil
  (b) in the way it affords the pupil access to a benefit, facility or service;
  (c) by not providing education for the pupil
  (d) by not affording the pupil access to a benefit, facility or service
  (e) by excluding the pupil from the school
  (f) by subjecting the pupil to any other detriment.

Section 85(5) provides that:

• The responsible body of such a school must not victimise a pupil-
  (a) in the way it provides education for the pupil
  (b) in the way it affords the pupil access to a benefit, facility or service
  (c) by not providing education for the pupil
  (d) by not affording the pupil access to a benefit, facility or service
  (e) by excluding the pupil from the school
  (f) by subjecting the pupil to any other detriment.

In reaching a decision to exclude, education authorities have to consider whether they could comply with section 4 of the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) which requires that every education authority must:

• "(1)(a) in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and

• (b) make appropriate arrangements for keeping under consideration-
  (i) the additional support needs of, and
  (ii) the adequacy of the additional support provided for, each such child and young person.

• (2) Subsection (1)(a) does not require an education authority to do anything which-
  (a) they do not otherwise have power to do, or
  (b) would result in unreasonable public expenditure being incurred."

Management of exclusion

Once a decision to exclude has been made, the local authority should ensure that the child or young person does not leave school until their safety, health and wellbeing are assured and appropriate arrangements are in place. Refer to Checklist 2.

Local authorities or their delegated manager, when deciding whether exclusion is necessary, should consider the particular facts and circumstances surrounding the individual incident(s) and the child or young person. These are outlined clearly in Section 7 of this guidance.

Procedures to follow when excluding a child or young person

Regulation 4A of the 1975 Regulations as amended makes provision for the procedures to be followed in exclusion.

The authority must, on the day upon which a decision to exclude a child or young person is taken, intimate in writing or orally (where intimations are oral they must be confirmed in writing) to the child's parent or if the learner is a young person, the young person (defined in section 135(1) of the Education (Scotland) Act 1980 ("the 1980 Act") as "a person over school age ^[41] who has not attained the age of 18 years"):

• the decision to exclude; and

• the date, time and place where the head teacher, other teacher at the school or official of the education authority, shall be available to discuss the decision to exclude. This meeting must be within seven calendar days following the day of the decision to exclude.

The authority must, notify the parent/carer or young person in writing (by post or handed to the parent or young person directly):

• (a) the reason(s) the pupil was excluded

• (b) the conditions, if any, with which the parent and/or pupil must comply, or undertake to comply before the pupil may be re-admitted;

• (c) the right to refer the decision to exclude the pupil to an appeal committee under section 28H of the 1980 Act and the right to appeal this committee's decision to the sheriff and how appeals can be initiated; and

• (d) any other information which the education authority considers appropriate.

In most instances the authority will delegate this to the school.

A child or young person should be actively involved and participate in all stages of the process. A core principle of the UNCRC is a commitment to ensuring that children and young people have the opportunity to participate in the decisions that affect them. The UNCRC defines participation as "ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes" ^[42] . The Children and Young People's Commissioner Scotland has developed a resource called 'the 7 Golden Rules of Participation ^[43] ' which provides advice on how best to plan and deliver participation with children and young people. '7 Golden Rules for Participation Symbols Resource' is also available to help deliver participation rights for younger children and children and young people with additional support needs.

Section 41 of the Standards in Scotland's Schools etc. Act 2000 extended the right of appeal in section 28H of the 1980 Act to pupil with "legal capacity" within the meaning of section 2(4A) and (4B) of the Age of Legal Capacity (Scotland) Act 1991. Therefore, the education authority should send the intimation regarding the right to make a reference to the appeal committee to a pupil with legal capacity, as well as the parent, so that they are aware they also have the right of appeal, as well as a right to express a view. Further information on appeals is outlined below.

It is good practice to agree a plan to support the child or young person on their return to school. This should not take the form of a 'good behaviour contract'. It is not a legal requirement that pre-return conditions are set. Full guidance on returning to school following a period of exclusion can be found under ' Resolution and ways forward' page 43.

Length of exclusion

The length of an exclusion is not defined in the legislation and accordingly is a matter for the discretion of the local authority and should be detailed in local guidance. It should be proportionate and take into account individual circumstances (see Section 7). The local authority remains responsible for the provision of education for the child or young person during the period of exclusion.

Recording an exclusion

All exclusions should be recorded on the local authority management information system. Recording and monitoring of exclusions are essential for a number of reasons:

• ensuring that appropriate interventions and supports are in place at the whole school level;

• identifying if there is an unmet wellbeing need for an individual child or young person; and

• providing data about patterns of exclusion to inform future practice.

Regulation 10(1A) of the 1975 Regulations as amended provides that, where a pupil's progress record contains information relating to a decision to exclude, certain other information is also to be recorded. This other information includes any decision of an appeal committee, and if the appeal committee is appealed, any decision of a sheriff. Regulation 10(1A) also requires the parent/carer or young person to be informed of the terms of the entry in the record, as soon as practicable after the entry is made. However, information about exclusion is not something which must be included on the record, although the above referred to requirements apply where such information is included.

Right of appeal against the decision to exclude

The right of appeal against the decision to exclude is conferred by section 28H of the 1980 Act, as extended to learners with legal capacity in terms of section 2(4A) and (4B) of the Age of Legal Capacity (Scotland) Act 1991 by section 41 of the 2000 Act.

As previously outlined, the education authority should send the intimation regarding an exclusion to a learner with legal capacity, or to a young person as well as the parent, so that the learner and young person has full knowledge of the decision since they have the right of appeal, as well as a right to express a view. In the case of pupils who are under 16 the intimation regarding an appeal should be made to the parent. The meeting to discuss the appeal should be with the parent. The child or young person may attend the meeting if both the education authority and the parent(s) agree; and should attend if it was the learner who exercised the right of appeal.

Regulation 4A (2) of the 1975 Regulations as amended provides that an education authority shall, within the period of eight days immediately following the day upon which the decision is taken ensure that intimation in writing is made to the parent of the pupil, where the pupil is a child, or to the pupil himself, where he is a young person, of:

(a) the reason for the decision to exclude

(b) the conditions, if any, with which the pupil and his parent or either the pupil or his parent are required to comply or to undertake to comply as conditions precedent to the pupil being re-admitted to the school

(c) the right to refer the decision under section 28H of the Education (Scotland) Act 1980 to an appeal committee set up and maintained under section 28D of that Act

(d) the address to which such a reference should be made

(e) any other information which the education authority consider appropriate.

Regulation 4A(3) of the 1975 Regulations as amended provides that there is a duty on an authority to provide notification where:

(a) a pupil who has not been re-admitted to the school from which he was excluded within seven days of the date of the decision so to exclude him

(b) a pupil whose parent has not indicated orally to the head teacher of the school or in writing after receiving intimation in accordance with section 28H of the Education (Scotland) Act 1980 or otherwise to pursue the matter further.

Where the learner has been readmitted to the school within seven days of the decision to exclude and the learner's parent (or learner where applicable) has indicated to the head teacher that they do not intend to appeal the decision, the education authority may issue the subsequent written notification within eight days of the decision to exclude, or thereafter.

Education provision during the period of exclusion

Section 14(3) of the 1980 Act places a duty on education authorities to make education provision for excluded learners. The duty is to, without undue delay, either:

• provide school education for the excluded pupil in a school managed by them; or

• make arrangements for the excluded pupil to receive such education in any other school the managers of which are willing to receive the excluded pupil; or

• make special arrangements for the excluded pupil to receive education other than at an educational establishment.

Where a child or young person is to be placed at another school either as part of an exclusion or following removal from the register, education authorities should not only arrange, but also co-ordinate, all aspects of this onward placement in the best interests of the child or young person. Parents and the child or young person should be included in any decisions regarding placement at another school.

There is no legislative definition of 'undue delay'. However, the objective is to ensure the child or young person continues to receive an education while excluded. It is reasonable to expect alternative education provision to be in place after 3 days. Education authorities should set their own policies on the provision of education for excluded children and young people which should include details of who will provide the education as well as where and when it will be provided.

The education authority should seek to provide the quality, quantity and range of education which adheres, as far as is practicable, to that which was available to the child or young person before they were excluded.

It will not be sufficient to simply provide excluded children and young people with homework/classwork if they do not also receive sufficient teaching to enable them to understand the material. Any arrangements, therefore, should involve contact with the child or young person on a regular basis. This could be provided in the form of an e-mail address/telephone number of a school contact who can address any concerns relating to the course work. There is also a responsibility on the child or young person and their parent(s) to make sure the provision arranged is carried out and used during any period of exclusion.

Any existing involvement in non-school based learning should continue. These include college placements, therapeutic support, or mentoring. It may be necessary to provide any such support in an environment outwith the school building during the period of exclusion.

The following are suggested types of education provision during periods of exclusion:

• suitable course work - to ensure the child or young person keeps up with work being taught during time excluded with a subsequent check to ensure the child or young person has understood the work;

• structured learning outside of home - i.e. library;

• programmes to address the behaviour needs of the child or young person to support re-integration to school and help prevent further exclusions; and

• virtual learning through GLOW/online learning.

Parent/carer(s) responsibilities

A parent of a child or young person of school age has a duty under section 30 of the Education (Scotland) Act 1980 to provide efficient education for their child suitable to his or her age, ability and aptitude by causing their child to attend a public school (local authority) regularly, or by other means. Parent(s) continue to be subject to this duty even if their child has been excluded from school. All parent(s) are encouraged to co-operate with their local authority to support any necessary provisions or special arrangements for their child or young person's education, if required to do so.

Parent(s) should work with their child's school to develop and implement an agreed course of action. Parent(s) should also support and encourage their child to attend school regularly.

It is vital that the views of the child or young person are heard throughout the process. A parent can play an important advocacy role and ensure that their child's views are taken into consideration. This is particularly crucial where a child or young person is at risk of being, or has been, excluded from school. It is good practice to inform parents of how they might gain the support and advice of a practitioner, another adult or a relevant organisation which might assist them, advocate on their behalf or represent the views of the child or young person. It is also important for the child or young person to receive relevant support where necessary.

Children's Rights Officers and advocacy services have an important role to play in supporting children or young people who are being looked after by the local authority. Although a child with legal capacity, or a young person has the right to appeal, the role of the parent in supporting their child and ensuring their views are represented should be recognised and encouraged throughout the process.

The Scottish Ministers will consider complaints brought by parent(s) or other interested parties, who think the local authority has failed to fulfil its legal duty under any enactment relating to education, under section 70 of the Education (Scotland) Act 1980. If the Scottish Ministers are satisfied that an authority has failed to fulfil one of its legal duties, they may make an order requiring the authority to carry out that duty.

Hostings or managed moves

Some local authorities have introduced a policy to support children and young people where they are finding it difficult to maintain a placement in a mainstream school. A strategy that can be used is a 'hosting' arrangement between two educational establishments. This strategy is often used where the child or young person has been excluded on several occasions and where they may have also been receiving additional support. The objective of a 'hosting' arrangement may be to:

• sustain the child or young person in mainstream education and reduce any loss or time to a minimum; and

• provide a 'fresh start' of measurable benefit for a child or young person and therefore enhance the likelihood of success in a new learning establishment.

Any consideration of a host or managed move should include careful assessment and planning, involving both schools, parent, child or young person and any other agencies to determine whether this is the best course of action for the child or young person. The child or young person would move to the 'host' school for a trial period. During the trial period the base school would retain responsibility for the child or young person. However, following a successful trial period, if all partners (including the child or young person) agree for the 'host' school to take full responsibility for the child or young person, an appropriate date for a permanent move will be set. Managed moves can be used within a cluster of schools, a local authority or across local authorities. Careful assessment, planning and monitoring which considers the child's or young person's wellbeing needs should be carried out throughout this period.

Exclusion and referral to the Reporter

When considering whether a child or young person should be excluded because of serious disruptive behaviour, for example, physical assault on a pupil or member of staff; or, deliberate damage to buildings or equipment, consideration of referral to the Scottish Children's Reporter may be appropriate. The referral of a child or young person to the Reporter would be appropriate where there may be a need to intervene on a compulsory basis because the child or young person is deemed 'at risk' and his/her behaviour is giving serious cause for concern and should be addressed.

Referral to the Reporter would normally be considered once the school's formal processes have been followed, although in some cases it may be appropriate to refer at an earlier stage. Decisions to refer to the Reporter should be based on an assessment of wellbeing, involving the appropriate agencies and the pupil and their parent(s), to identify the interventions which may be required to meet the pupil's needs. Where police have been involved, they will automatically refer the child or young person to the Children's Reporter.

Children and young people who display particularly challenging behaviour may be the victims of neglect or abuse and/or be the witnesses of domestic abuse. All children's behaviour is a form of communication and schools have a responsibility to alert other services if they have child protection concerns. The individual circumstances of the learner, using a multi-agency approach, and the national practice model, should be considered as part of the decision on whether to make a referral to the Children's Reporter in line with local authority procedures. The grounds for referral are set out in section 67(2) of the Children's Hearings (Scotland) Act 2011 ^[44] . Schools, in consultation with the child, family and other relevant professionals, should be able to determine the appropriate course of action in such circumstances.

On referral, the Reporter will investigate the case and determine whether the evidence provided forms the basis for an assessment of whether compulsory measures of intervention may be required. If there is sufficient evidence of a potential need for compulsory measures, a Children's Hearing will be held. More information is available from the Scottish Children's Reporter Administration ( SCRA) ^[45] and Children's Hearings Scotland ^[46] .

Resolution and ways forward

Return following exclusion

Prior to a child or young person returning to school, an update to the wellbeing assessment and planning should take place to ensure the right support is provided. Appropriate approaches and strategies should be developed to prepare the child or young person, parent(s), staff and peers to enable them to return to school in a positive way.

It is good practice to meet with the child or young person and their parent(s) to discuss their return to school and to agree the most appropriate supports moving forward. Return to school planning with the child or young person and their parent(s) may include arrangements for further planning including some discussion about the roles and expectations for all those involved, including the child or young person. This planning can take place through a formal meeting or as part of on-going discussions with all those involved. Identified supports leading on from a risk assessment, should also be discussed and put into place, where appropriate. It is not, however, a legal requirement to have a pre-return meeting, seek guarantees or contracts of behaviour with parents or young people before a return to school.

Re-admission should take into consideration preparing and meeting the needs of staff and other children and young people affected by the behaviour/incident which led to the exclusion and their need for follow-up support. It is good practice to hold a restorative or solution oriented meeting(s) with staff and the children and young people involved to help repair and restore relationships and trust as part of the return to school. On-going support and monitoring should be provided by appropriate staff, e.g. guidance staff, to ensure that the child or young person's wellbeing needs are being met.

In order to support the child or young person appropriately and enhance the transition back to school, it may be necessary in exceptional circumstances to implement a package of support that could be achieved using a flexible or part time timetable with an agreed timescale as to when this will end. Any such arrangements should be for a short, agreed period with the aims and conditions around this recorded in any support plan. This should also be recorded in SEEMiS with a new code which has now been created for children and young people who are returning to school on a part time basis following a period of exclusion.

Following discussion with SEEMiS the new code being introduced is:

Description	Code	Short Code
Part Time Timetable (exclusion related)	PTX	Y

When using this code, the time outwith school will be classed as ' authorised absence'.

All partners including parents and the child or young person should be involved in the development of this temporary, short-term arrangement. The child's plan should reflect the steps taken by the education authority to provide the child or young person with their statutory entitlement of hours, ensuring that their learning needs are met. Education authorities should be aware of and monitor carefully any such provision, including any targets and timescales for return to full time provision which is an entitlement. Education authorities may want to consider further guidance on appropriate timescales within their local context.

Following the child or young person's return to school after exclusion, support provision and planning mechanisms should continue to be regularly reviewed. Schools and education authorities should continue with their staged intervention systems as outlined earlier.

Removal from register

In 2014/15, only five pupils were removed from the register of a school ^[47] which is a significant reduction on previous years. In the context of education authorities' continuing duty to provide education, it is imperative that everything possible is considered to avoid such a situation. It is also important that removal from the register does not represent a failure to assess and implement the range of approaches and options available and involve the child or young person and their family.

In very exceptional circumstances it may be that the school believes that the child or young person's behaviour is such that it may merit their removal from the register of the school and therefore referral to the local authority for consideration. In such cases, this should be managed as a supportive way forward for the child or young person with transition planning put into place, in order to bring some resolution to the situation and avoid unnecessary gaps in educational provision.

Admission to a new school following removal from the register

Where the decision is made to remove a child or young person from the register, local authorities must arrange for new educational provision to be made with the appropriate supports put into place. This is usually in the form of attendance at another establishment. Arrangements for transfer of the child or young person to a new establishment should be made expediently to ensure minimal risk to the educational provision and to continuity of support. In addition, appropriate provision must be made during any period of exclusion. Where a plan is in place, consideration should be given to the need to transfer management of the plan.

Schools must ensure timely transfer of educational records and plans to support the effective transition of the learner to their new educational provision.