Revised guidance on exclusion

The DCSF's revised exclusion guidance came into effect on 1 September. It is generally helpful in most areas.

The guidance clarifies a number of matters that have arisen since the last proper revision: in particular, members need to be aware of the strong warning against any type of informal exclusion and the way in which 'sending home on grounds of safety' should be interpreted.

The guidance is unhelpful on 'sending home to change' in case of uniform infractions. Nothing in case law supports the suggestion that sending a student home to change should be for the shortest time possible.

It also is not made clear that case law supports the proposition that a parent who sends a child to school improperly dressed, knowing that s/he will not be admitted, commits the offence of failing to send their child to school. This is something that individual ASCL branches may wish to take up with their local authority.

Similarly, the guidance encourages local authorities to organise parenting contracts or seek parenting orders where a child is at risk of exclusion. Branches might wish to join with other unions in encouraging their local authority to provide the resources and show the will to use these provisions.

A most significant, and easily missed, section of the guidance refers to the recent judgement of the House of Lords in Lewisham v Malcolm about disability cases.

Up to now it has been assumed that the comparator in cases involving disability was a person who is not disabled and did not act in the way the disabled person did.

So the comparator to an ADHD pupil who misbehaved as a result of ADHD was a child without ADHD who did not misbehave. As a result a number of schools have found themselves at the wrong end of a SENDIST ruling.

The Lords ruled that the correct comparator is someone who, while not disabled, behaves, or misbehaves, in the way the disabled person does. This means that generally a child who has a behavioural disability and misbehaves because of it may be punished without this making the school guilty of discrimination.

• The guidance is available from www.teachernet.gov.uk/wholeschool/behaviour/exclusion