Department For Education Withdraws New Guidance On School Exclusions


The Department for Education (DfE) recently amended the statutory guidance on school exclusions, making significant changes to the criteria for when permanently excluding a child from school is permitted.


The new guidance became effective on 5th January but has already been withdrawn following the threat of legal action:

  1. in response to a series of breaches of the school's behaviour policy and
  2. if allowing the pupil to remain in school would seriously harm the education or welfare of the other pupils in the school or that pupil

The above 'and' was changed to an 'or' making it much easier for Headteachers to satisfy the necessary legal tests.

We were disappointed with this change and considered it to be somewhat of a backwards step. The focus of the guidance has always been to emphasise that to permanently exclude a child should be an absolute last resort. Even though the guidance still stated as much, this seemingly subtle change to the above wording would have had a significant practical impact on school exclusions and when these can be legally implemented.

We were pleased to hear that the DfE has since withdrawn the new guidance following a threat of judicial review. This is reported to have raised concerns over the lack of consultation that occurred over the changes and the potential adverse impacts it could have on some of our most vulnerable children.

The DfE has stated that updated guidance will be issued 'in due course'. We are hopeful that such guidance will be issued as a result of a lawful consultation process and will seek to protect vulnerable children whilst also balancing this with a school's need to maintain order and discipline but only time will tell.

Until new guidance is issued, schools must comply with the previous guidance that still has effect. This means that permanent exclusions should not be implemented unless both of the above conditions are met.

Given there has been a great deal of change, this may result in confusion and unlawful decisions being made.

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