Within weeks of Michael* starting at his local primary school, his family were told he was a problem. “About two to three months in, they started saying ‘he’s being naughty; he’s not listening’,” says his mother, Alison*. “He was put on a reduced timetable, so he would only go in in the mornings.”

Michael was soon diagnosed with attention deficit hyperactivity disorder (ADHD), but his situation did not change; he continued on a reduced timetable for the rest of his first year in school. Then at the end of the year, the family was asked not to bring him back to the school in September.

Alison did not challenge it. Following the frustrations of the year gone by, she decided it was better to find another school.

• This was originally published in Tes magazine. To get great content every week, click here. 

For the most part, that decision paid off - no reduced timetable, no quiet words in corridors about “finding somewhere else”. Life largely returned to normal.

But then Michael arrived at the local mainstream secondary school. He was there for less than four weeks before he was given a fixed-term exclusion for being “rowdy”. On his return to school, he found himself on a reduced timetable once again, having to attend school only in the mornings. Alison was told that he would be back on a full timetable if his behaviour improved, but nearly five months later, in mid-February, he was still attending part-time.

Exasperated, and having had to give up her job working in a shop to look after Michael when he was not at school, Alison withdrew him and sent him to a special school instead.

Since that move, Michael has attended school full-time with no issues.

Of the many failings in this story, the most shocking is that Michael has repeatedly been the victim of illegal exclusion.

For a child to go on a reduced timetable, a strict set of actions needs to be taken first, including written consent from a parent. Alison was never consulted, and she certainly did not give consent. This was the case in both the primary and secondary schools. As for a fixed-term exclusion, again there are set protocols to go through, including written notification to the parents of the cause of the exclusion and how long it would last. Again, in Alison’s case, this did not happen.

And the manner in which Michael was asked to leave the primary school? Well, that was also illegal. The law on exclusion is clear and the school did not follow it.

Unfortunately, Michael’s case is not an isolated one. Stories of illegal exclusion fill parenting forums, pepper social media threads and have been highlighted by teachers and heads horrified by what they are witnessing. There is no hard data on how common these incidents have become, but the consensus among those campaigning against the practice is that the problem is coming to a head. Illegal exclusions are on the rise, they claim, and it’s time we tackled the issue.

Jarlath O’Brien, headteacher of Carwarden House Community School in Surrey and author of Don’t Send Him in Tomorrow, can tell you countless tales of illegal exclusion. The victims often arrive at the doors of his school, and he has become a magnet for the stories of others.

“[Illegal exclusion] is a lot more prevalent than many would expect - whether it is schools ignoring the law or not knowing about it is debatable, but that the rules are not being followed is clear,” he says.

‘Managed moves’

Most stories echo the experience of Michael: unofficial fixed-term exclusions, imposed reduced timetables with no parental consent and exclusions that follow none of the statutory guidance.

Julia Vincent, headteacher at Warblington School in Hampshire and a former head of behaviour services in West Sussex, says schools can often present illegal practice as doing the student a favour - leave before you are kicked out and keep your record clean - and this is then portrayed as a “managed move”. It’s nothing of the sort, she says: it’s illegal and it’s failing the child.

“Managed moves are when school, student and parents all agree that a fresh start would be best,” she explains. “When done properly against an agreed set of protocols, it is a good alternative to exclusion. But there are schools who sail close to the wind and suggest that students leave prior to being excluded. This is not a managed move. This is illegal.”

How many schools are flouting - whether knowingly or not - the law on exclusion? It’s very difficult to know.

Officially, exclusion rates state that the number of permanent exclusions has generally been on a downward trend over the past decade. However, in 2014-15, the last year for which such figures are available, there was a slight increase (see bit.ly/Exclusions2014-15). Fixed-term exclusions, meanwhile, are lower than in 2010-11, but leapt markedly compared with the number in 2012-13 and 2013-14 (see box, below right).

O’Brien believes the numbers for the current academic year will be much higher in both categories. He has spoken to three local authorities which, off the record, report a sharp increase in numbers during the past two years.

If legal exclusions are up, then that might suggest schools have suddenly discovered the legal guidance, and that a fall in illegal exclusions would follow. Equally, it might suggest a greater use of exclusion, and this may well be reflected in a comparative rise in illegal exclusions, too.

The tales of increases in illegal exclusion would suggest the latter is correct and that is particularly true for students with special educational needs and disability (SEND). Just over half of all incidences of official permanent and fixed-term exclusion involve children with SEND. Barney Angliss, a columnist for the SEND advocacy website Special Needs Jungle, and who works as a consultant for schools, local authorities and parents on SEND issues, says these vulnerable young people are common victims of illegal exclusion - and that incidents are on the rise.

“Schools are underresourced when it comes to providing support for children with SEND; it is the worst it has been in 26 years of doing this job,” he explains. “But their reaction to this is to make it very clear that they cannot provide for these children - that it is too complex, that it takes too much time - and they make it very clear that a move would be better for these young people. The parents know the signs: they have been there before, as these children get passed between schools all the time. And because of that, the parent tends not to fight it. Illegal exclusions like this are happening more and more.”

But is there any hard evidence that the anecdotes are symptomatic of a broader issue? What research there is suggests we have no real grip on illegal exclusions.

In 2011, the Centre for Social Justice, a thinktank set up by Conservative former minister Iain Duncan Smith, found that “it is impossible to be clear [about progress in reducing exclusions], given the uncertainty about the level of unofficial exclusions being used” (bit.ly/CSJexclusions).

It said that no data was being collected by the Department for Education on the issue. This still seems to be the case - requests for clarification on whether the government was trying to collect data on this were not addressed by the DfE.

‘Source of shame’

In April 2013, a report by the former children’s commissioner for England, Maggie Atkinson, estimated that “several hundred” English schools were excluding children illegally, affecting “thousands” of children each year (see bit.ly/OCCreport).

“This fact, surely, is a source of shame to the entire education system,” Atkinson wrote in the report’s foreword.

And earlier this year, Education Datalab and Ofsted highlighted concerns about “off-rolling” in the latter years of secondary school - the practice of moving students to alternative provision to improve results. Ofsted suggested that the practice may be on the increase (bit.ly/OfstedCrackdown).

That there is a problem at all is surprising, as the law around exclusion is very clear (bit.ly/DfEExclusion). However, it could be argued that the messages from the government on exclusion have been confusing.

Rules published in 2012 state that pupils can be permanently excluded only if they are found to have committed serious or persistent breaches of a school’s behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. It is necessary in a permanent exclusion situation to satisfy both limbs of the statutory test. In December 2014, ministers published a guidance document that would have removed that requirement, but this was withdrawn in February 2015. Now, new draft guidelines, published for consultation in March 2017 (bit.ly/ExclusionGuidance17), restate the original 2012 stipulation.

Also, it has twice been proposed that schools continue to be accountable for students they exclude - in the White Papers The Importance of Teaching in 2010 and Educational Excellence Everywhere in 2015 - but on neither occasion did the requirement come to fruition.

Meanwhile, a recent report commissioned by the government, Creating a Culture: how school leaders can optimise behaviour, strongly recommends the use of inclusion units and early intervention, and states that exclusion “should be considered [only] when all other options have been exhausted”. That this needs to be stated seems odd, as it is essentially just reiterating the legal requirement. It also calls for a clearer and more rigorous paper trail about the journey of a pupil towards exclusion.

And Dr Atkinson says that while ministers moved to update exclusion guidance in 2011-12 in anticipation of her report’s conclusions, it is hard to point to concrete changes in policy as a result. She made 10 recommendations, including:

• Governing bodies should be given new powers to “provide a more robust challenge” to schools that exclude illegally.

• Schools should provide information on parents’ and children’s rights in relation to exclusions on their websites.

• Schools should have financial penalties if they are found to have illegally excluded a child for a period of a month.

When asked for clarification on exclusions and whether the government was aware of, or monitoring, illegal exclusions, the DfE responded by reiterating the statutory guidance. But at a conference in March organised by the Social Mobility Commission, education secretary Justine Greening did address the issue of schools “managing out” students (bit.ly/RemovingPupils). She highlighted the number of pupils with SEND who are in alternative provision and said there was “a lot more work to be done” to understand how, at a local level, schools could take the right decisions about where a child should be educated.

There is no word as yet about what that “work” might entail.

O’Brien is adamant that there are only two reasons for illegal exclusion: the headteacher is either “incompetent”, as they do not know the law, or they’re breaking the law knowingly. If it’s the latter, then the question arises as to why they might do that.

Protecting results

Some argue that it is about schools acting to protect their results or status. Disruptive students who may not be disruptive enough to warrant a legal exclusion are excluded illegally instead.

Colin Harris, a former headteacher in Hampshire and now a consultant supporting a pupil referral unit, believes that some schools feel they have no choice but to “offload” students. “The whole gamut of league tables and [academic] results is encouraging schools to let children go,” he says.

O’Brien agrees. He recounts one instance when he reported an illegal exclusion to a local authority. “A senior local authority (LA) officer said to me that the school was petrified of losing its ‘outstanding’ grading from Ofsted and with it its teaching school status,” he explains. “This is the slope we are sliding down. In today’s system, some children are more risky to have on the roll of a school than others, and that cannot be right.

“Where this happens, we have weak headteachers making decisions designed to protect the school’s brand at the expense of individual children; weak LAs refusing to challenge headteachers; and weak governing bodies allowing it to happen.”

Those with knowledge of illegal exclusions say another common reason for their use is that a school may believe it is the best option for both the student and the school. Here, it is argued that the other children have a right to learn uninterrupted and that a student leaving the school sends a strong message to others that such behaviour is not acceptable. If there is not the recourse or appetite to exclude legally, they say, it is best for all to “manage” the situation by suggesting the student move to another school.

O’Brien doesn’t buy that argument.

“This is not improving a school, this is changing a school,” he says.

He has support in that view from Joe Elliott, a professor of education at the University of Durham, who says schools that are too quick to exclude are “taking the easy way out”.

“Any fool can have zero-tolerance behaviour policies if you just get rid of the pupils,” he says. “Strong leadership is about having strong disciplinary policies, but not just getting rid of kids. The latter is a sign of weakness, in my view. Anyone can do it.”

Schools should not have “zero-tolerance policies involving excluding pupils for not doing their homework or swearing at a teacher under their breath,” he says, because “why should other schools have [the pupils instead]?” The onus, he believes, is on those schools to solve the problem, not to offload students for other schools to deal with it.

But are schools able to solve the issues, or is illegal exclusion just a symptom of a broken system that has neither the resource nor ideas to support these children?

Gemma Dixon, head of school at TBAP 16-19 Academic AP Academy in Fulham, London, thinks much can be done for students in the mainstream setting. She explains that her school works closely with partner mainstream schools to provide a range of services, including in-school support, short-stay interventions and dual-registration arrangements to try to ensure that permanent exclusion “really is the avenue of last resort”.

She says lives can be turned around if the right support is in place, such as “therapeutic support, enrichment activities, mentoring, speech and language therapy, and small classes with highly trained teachers”.

In contrast, exclusion almost always affects students negatively, says O’Brien, despite the excellent work of the alternative-provision sector. “The act of exclusion is damaging and there is research supporting that,” he says.

Indeed, the evidence suggests that exclusion has a detrimental effect on the individual, not the positive “fresh start” some believe. The 2011 Centre for Social Justice report says that pupils should be “supported to the greatest possible extent to stay within mainstream schools”, with exclusion being a last resort.

The thinktank cites data from a 2010 study, which finds that 90 per cent of young men and 75 per cent of young women in prison had been excluded from school. A 2011 report by the Commons Education Select Committee found that “there is…a wealth of evidence linking exclusion from school with academic underachievement, offending behaviour, limited ambition, homelessness and mental ill health”.

Harry Daniels, professor of education at Oxford University, who is involved in a research project following pupils’ lives after exclusion (bit.ly/ExcludedLives), says: “I do not know of any research that advocates a hard line on permanent exclusion.”

Substantial negative effects

Even where exclusion is temporary, there is still potential for substantial negative effects for the child, says Vincent.

“The issue with both fixed-term and permanent exclusions is that the message you are sending to a young person is that they are not wanted,” she says. “This feeling is often harboured and grows.”

She adds that exclusion is littered with safeguarding issues, too, and exclusion of any sort often puts an already vulnerable child at greater risk by taking them away from the safety of the school.

All of these detrimental effects for the child are likely to be amplified when an exclusion is illegal - safeguarding issues, in particular.

So what can be done? Well, it should be noted that this is a problem being highlighted by those within the profession, so a “calling out” of the practice is already beginning.

Tom Bennett, the last government’s behaviour tsar and lead author of the report Creating a Culture: how school leaders can optimise behaviour, sees the option of exclusion as necessary, but would like to see more monitoring of “unofficial exclusions”.

The evidence thus far would suggest that monitoring is incredibly difficult, though, as there is no paper trail, and the parents and student typically do not complain, largely because they do not know the law on exclusion themselves, so they assume everything is above board.

Atkinson’s recommendations would certainly provide a deterrent if schools were caught, but the trend has been that they are likely not to be. But her recommendation of better communication to parents of the rules around exclusion could have a big effect.

Those campaigning for greater awareness of illegal exclusion argue that what we need most is a broader discussion about the issue so that the full impact of these decisions is appreciated; by influencing the thinking of heads on this issue, you can begin to reduce the level of both legal and illegal exclusions.

O’Brien explains that too many schools see exclusion as a solution to too many problems.

“Exclusion is quick and easy, and this is why we can rush to use it in response to an incident,” says O’Brien.

“As a new headteacher, I resorted to fixed-term exclusion because I thought I was being tough, sending a strong message to the child and to others, and I thought I was supporting my colleagues. In fact, none of those things were true. The children came back at best unchanged by the time away - they hadn’t magically fixed the issue on their own - and often with a sense of resentment.

“I had done nothing to improve the situation. That is the opposite of being supportive to my colleagues.”

Accountability, status, resource - all of these may contribute to illegal exclusions and none are easy to fix. Enforcing the law is, it seems, complex, too. But O’Brien says that underlying all of those factors is a basic misunderstanding of behaviour. And that, he says, is relatively easy to solve.

“If we are serious about improving behaviour and reducing the use of fixed-term exclusion, then we need to invest time and effort in training for all staff to understand behaviour in greater depth. Only then will we be in with a chance of exclusion being a thing of the past.”

* Names have been changed

Warwick Mansell is a freelance education journalist. 

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