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The Law - When an absence is not exclusion

Prior to the Education Act 1986, an exclusion from school could be for a disciplinary reason or a non-disciplinary reason. In a famous case in Warrington in the 1930s, a girl was denied access to school because she insisted on wearing trousers. A court held that she had absented herself from school, rather than the school excluding her.

The 1986 Act asserted that all exclusions were to be for disciplinary reasons, and the arrangements set out for fixed-term and permanent exclusions largely persist.

However, after a succession of cases where judges had difficulty in finding for pupils who alleged that they had been unlawfully excluded, the Government finally issued guidance that recognised that some exclusions were not really exclusions as we had come to know them. And so, out of the four circumstances where pupils may be asked to leave the school site, three are not seen as exclusions.

One is where a pupil's presence at school poses a serious risk to the health and safety of other pupils or staff for medical reasons. The headteacher can send the pupil home after consultation with the pupil's parents.

When the school sends a pupil home briefly to remedy a breach of the school's rules, such as not conforming to the uniform code, this too is not an exclusion, but rather an authorised absence. However, if the pupil continues to breach the rules in order to avoid school, their absence can be counted as unauthorised, but not as an exclusion.

There may also be occasions when heads are able to remove pupils from the school site when "exclusion would be inappropriate". For example, when a pupil is accused of a serious criminal offence but the offence took place outside the school's jurisdiction, the head may decide that it is in the interests of the pupil, or of the school community as a whole, for the pupil to be educated off-site for a while. Or there may be insufficient evidence to warrant exclusion because the police may be involved in an incident at school and the head is therefore constrained from collecting evidence. In these circumstances, the head can still remove the pupil from the school site, but this would not be an exclusion.

In these instances, schools can follow the usual exclusion procedures - or not.

Chris Lowe, Former headteacher, trade union consultant and chief editor of Quick Guide Publishing.

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