The DfE released a new version of the statutory exclusions guidance “Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement” in July 2026, which takes effect from 1 September 2026, (despite a reference to 2024 at the last bullet point on page 6).
For the first time since the introduction of the term “suspension” by the DfE, the guidance specifically recognises that suspensions are referred to in the primary legislation and regulations as an exclusion for a “fixed period”. This will, hopefully, put an end to the confusion that we have seen prevail with some local authorities who have insisted on the use of the term “suspension” in letters to parents from schools, when referring to a fixed-term exclusion. Our view is that it is up to schools to decide which terminology to use but we recommend that it is used consistently throughout all policies, letters and communications to avoid confusion. In our experience, many schools are now routinely using the term “suspension” which is fine.
It is stated that the guidance has been updated to be a companion piece to the Behaviour in Schools guidance, which provides advice to headteachers and school staff on implementing a behaviour policy which creates a school culture with high expectations of behaviour. This means that the guidance should only be necessary when strategies, practices and interventions set out within the Behaviour in Schools guidance have not been successful in improving a pupil’s behaviour and the use of more significant interventions or sanctions are required. Thus, there is a specific requirement to consider page 16 of the Behaviour in Schools guidance before moving to a serious sanction.
Safeguarding and separation of pupils for safeguarding purposes
It is now recognised as part of the statutory exclusions guidance that there are occasions when a school can temporarily forbid a pupil from attending its premises, for example, due to an allegation of harm by one pupil against another which might require physically separating a pupil from one or other pupils. It is, however, for governing boards to ensure that this is only used in rare circumstances, and where there is no other practicable way to enable one or more pupils to remain on the school premises; this follows the High Court decision in R (CHF) v Newick CE Primary School [2021] EWHC 2513 (Admin), but until now was part of case law rather than guidance.
The statutory guidance makes it clear that this is not a behaviour sanction. The pupil remains on the school’s roll. The guidance states that the local authority must arrange education for the pupil pursuant to its section 19 duty if the school itself, or the pupil’s parent, does not do so whilst the separation is in place.
Further, parents have no right to seek a governors review of a safeguarding separation; schools are advised to follow general safeguarding principles as set out in KCSIE and make risk and needs assessments, depending on the individual circumstances, with immediate risk assessments being advocated when there has been a report of sexual violence and the need for a risk assessment being considered on a case by case basis following a report of sexual harassment.
Off-site direction as an alternative to exclusion
The enactment of S. 55 (1) of the Children’s Wellbeing and Schools Act 2026 inserts a new section 29(A) into the Education Act 2002 which permitted the making of regulations to enable academies to direct pupils off-site to improve behaviour; previously this had been recognised as being permitted under an academy’s general powers The Education (Educational Provision for Improving Behaviour) Regulations 2010 as amended and modified by the Education (Educational Provision for Improving Behaviour) (Application to Academies and Pupil Referral Units and Minor Amendments) Regulations 2026 now gives academies a statutory right to direct pupils off-site to improve behaviour which reflects the position that applied to maintained schools. ;.
The statutory guidance provides that where an off‑site direction or relevant placement was imposed by an academy school or AP academy before 26 July 2026, and the pupil remains on that placement on or after this date, the academy trust must provide the parent (or pupil aged 18 or over, and the local authority where the pupil has an EHC plan) with written notice of the requirement (including all the prescribed information, set out in paragraph 45, except the details of the person to whom the pupil should report on first attending) as soon as practicable on or after 26 July 2026, and no fewer than six days before the first review meeting. Additionally, the trust is required to hold the first review meeting as soon as reasonably practicable after 1 August 2026, regardless of whether a review has been held in the previous 10 weeks.
Managed moves
The updated guidance reiterates that the law does not allow for “trial managed moves”. A managed move is used to initiate a process which leads to the transfer of a pupil to another mainstream school permanently, when all parties to include parents agree, and importantly when it is the best interests of the pupil.
In our recent experience some schools are being required by their local authority to enter into unlawful “trial” arrangements, even where the local authority has been made aware of the legal position, which is then being challenged by parents representatives with the school having to bare the brunt of the challenge, and associated costs. If a temporary move needs to occur to improve a pupil’s behaviour, then off-site direction should be used, which in turn can be converted into a managed move if the placement proves to be successful and all parties are in agreement.
The headteacher’s duty to inform parties about an exclusion
We are seeing an increase in parents raising concerns and complaints about communications around suspensions and exclusions. Section 51A of the Education Act 2002 sets out the basic premise that it is only the headteacher who can exclude a pupil from the school for a fixed period, (suspension), or permanently. In addition, the statutory guidance provides that it is the headteacher’s duty to notify parents of the period of the suspension or permanent exclusion and the reasons for it.
Paragraph 92 reinforces that communication about a suspension or permanent exclusion should come from the headteacher, be that in person or by telephone in the first instance so as to allow parents to ask any initial questions or raise concerns “directly with the headteacher.”
Paragraph 93 also makes direct reference to the headteacher: “When notifying parents about a suspension or permanent exclusion, the headteacher should set out what arrangements have been made to enable the pupil to continue their education prior to the start of any alternative provision or the pupil’s return to school …”
So as to limit the grounds of complaint surrounding communications, in what is acknowledged by all to be distressing circumstances, we advise that all communications to or with parents in connection with any proposed or actual suspension or permanent exclusion should be from or with the headteacher in accordance with statutory exclusions guidance.
Local authority attending an academy GDC hearing
While it has long been the case that a parent could request that a representative of the local authority attend the GDC hearing at an academy as an observer, and only be permitted to make representations if the governors permitted, it is now expressly set out that the academy trust is not required to agree to such a request.
Guidance for governing boards on using data on suspensions and permanent exclusions
The updated statutory guidance provides enhanced and detailed guidance to governors on routinely challenging and evaluating the school’s data about pupil movement, to include considering the levels and characteristics of pupils leaving the school, whether through permanent exclusion, removal from the admission register, off‑site direction, or any other form of pupil movement to ensure that such actions are taken only, when necessary, as a last resort.
Governors are encouraged by the guidance to “ … deploy maximum challenge to school leadership to understand these movements and identify any emerging patterns that may require further scrutiny or action.”
MATs are also encouraged to work with their academies to consider this information and understand if there are patterns emerging across the MAT, on the basis that numbers in any one academy are often too low to permit meaningful statistical analysis.
There is an apparent emphasis on reviewing data to benchmark and analyse trends to improve educational and financial outcomes.
Governing board’s duties to consider reinstatement
The statutory guidance continues to provide a clear flow chart of when a governing board is required to consider reinstatement following a suspension or permanent exclusion.
We would urge schools to refer to this when receiving parental representations/complaints following a suspension as there appears to be a growing trend of parental representations being dealt with as complaints under the school’s published complaints policy and procedures when they should be referred to the governors in accordance with the statutory exclusions framework.
Footnote 67 on page 45 provides a helpful checklist of who witness statements can be gathered from to evidence the incident which led to the suspension / permanent exclusion and professionals to aid in the GDC consideration of the matter: the headteacher, the pupil’s teachers, the designated safeguarding lead, the pupil themselves, the pupil’s parent(s) and if applicable, the designated teacher for looked-after children, and where possible, and appropriate, written statements should also be gathered from the pupil’s social worker, and for looked-after children the area’s VSH.
All witness statements should be attributed, signed and dated unless the school has good reason to wish to protect the anonymity of the witness. This in our experience is usually for safeguarding reasons, in which case the statement should at least be dated and labelled in a way that allows it to be distinguished. Schools often produce statements from Student A, Student B etc by default. This the guidance makes clear should be the exception not the rule as pupils are entitled to know the case against them, provided that safeguarding concerns relating to other pupils are appropriately managed.
Guidance on considering the reinstatement of a suspended or permanently excluded pupil
Much emphasis is placed on the need to ensure that clear minutes are taken of the governors’ review meeting as a record of all the evidence that was considered by the governors; this includes minutes of the decision making and reasoning. This is an area which is, in our experience, being increasingly picked up at IRP hearings where oral evidence is given by the governor representative that a specific matter was considered, e.g. alternatives to exclusion, but there is no record of this in the minutes, such that IRPs are at the least recommending that the governors reconsider reinstatement.
Governors are required to conscientiously consider reinstatement and “interrogate” the school on its decision, not to “rubber-stamp” the headteacher’s decision.
This has recently come under close scrutiny in the High Court in – R (HVF) v Lift Schools [2026] EWHC 2088 (Admin) where Deputy High Court Judge Bates found that the documents did not provide, but ought to have provided:
(1) A statement as to, and reasoned assessment of, the nature of the “serious harm” that the GDP consider would occur if [pupil] was allowed to resume attending the school.
(2) A statement as to, and reasoned assessment of, the degree of likelihood of that harm occurring.
(3) A statement as to, and reasoned assessment of, the degree of harm likely to be caused to [pupil] by the permanent exclusion, taking account of his relevant circumstances, including his SEND and the evidence that he was otherwise reasonably well-settled in the school. [A child with SEMH needs is likely to find it more difficult, as compared with an average child of similar age who does not have SEMH, to successfully transition to a new school.]
(4) Consideration of whether there were any alternatives to permanent exclusion (i.e. alternatives that would have enabled [pupil] to resume attending the school) – such as, for example, a further fixed-term exclusion, or an off-site direction – available which would sufficiently mitigate the risk of the contemplated serious harm occurring.
Please refer to our briefing note “Exclusion Note from new case – R (HVF) v Lift Schools [2026] EWHC 2088 (Admin)” for further analysis and commentary on this important new case.
For assistance with all your suspension and exclusion enquiries please contact our team of specialist lawyers at schoolsupport@wslaw.co.uk or on 0345 070 7437.