Exclusions and suspensions are near an all-time high. The latest Department for Education data shows a 16 per cent increase in permanent exclusions in 2023-24 - driven largely by persistent disruptive behaviour.
Meanwhile, 45 per cent of respondents in Browne Jacobson’s summer 2025 School Leaders Survey reported an annual rise in both suspensions and exclusions.
Perhaps not unrelatedly, we have seen an increasing number of cases in the High Court where parents have challenged decisions over the past two years.
There have also been three cases in the Court of Appeal just this year - more than the total number of exclusions cases to reach this court since the revised school exclusions regime was passed in the Education Act 2011.
So what do those cases tell us about what school leaders need to know?
Exclusion policies must be clear
Firstly, make sure your policies are consistent and clear. Often with exclusions, there will be multiple relevant policies, including behaviour, exclusions and potentially special educational needs and disabilities (SEND).
You can get into difficulty if these are saying different things and not joined up. While your policy shouldn’t just replicate what DfE’s exclusions guidance says, it’s best not to contradict that either.
While the exclusions guidance states that school leaders can permanently exclude where there has been a serious or persistent breach of the behaviour policy, as well as if there is serious harm if the pupil remains in the school, disruptive behaviour could be both serious and persistent.
This means both categories can be relied on when headteachers inform parents and present to the governing board. The important point here is schools can’t change the reasons for an exclusion decision later, so it must be clearly communicated from the outset.
We’ve also seen a 115 per cent increase in disability discrimination claims against schools in the First Tier Tribunal over the past three years, so if disability or another protected characteristic is relevant to the decision, make sure it’s considered.
This includes whether all reasonable adjustments have been made and whether exclusion is a proportionate decision.
Given the number of cases now brought, some schools have lost these claims and that is often where the decision was not considered proportionate; for example, the sanction was considered as too severe given the pupil’s needs and context.
The governing board’s critical role
Much of the case law has focused on the governing board’s role in exclusions, which should be regarded as part of a single decision-making process in partnership with the headteacher.
This has profound practical implications. The governing body makes the ultimate exclusion decision - it’s not rubber-stamping the headteacher’s call.
Governors must independently scrutinise the evidence, test its reliability, probe alternatives and reach their own conclusion on whether the legal test is met. Training on this is certainly recommended.
If mistakes were made by senior leaders, for example, in the investigation process leading to exclusion, it’s important to be honest about that at the governor panel stage so its impact can be properly considered.
Independent review panels
We advise schools regularly about independent review panel (IRP) decisions where the decision has been quashed or it is recommended for reconsideration by the governing board. About 23 per cent of exclusions considered by an IRP were quashed in 2023-24.
Our experience is that SEND is frequently raised at IRP and is often part of why an IRP quashes a decision.
That’s a significant proportion of decisions being quashed - but as the courts have made clear, the role of the IRP isn’t to interfere with the merits of a school’s decision but to apply the law of judicial review, which sets a pretty high bar.
How high that bar is set is demonstrated by the fact that very few cases brought to the High Court and Court of Appeal have been successful for parents.
Still, schools should take IRP decisions seriously. Where the decision to exclude is quashed by an IRP, the exclusions guidance says the governing board decision should be “conscientiously” reconsidered.
What this really means is that the decision is properly looked at again by the governing board, with specific attention paid to the points made by the IRP.
The same governing body may lawfully reconsider - a fresh panel isn’t required - but it must approach the case with an open mind and explain clearly how it’s addressed the IRP’s concerns.
If those points involve concerns around discrimination, then careful consideration is important, given the further options for parents in those cases to bring a claim. A perfunctory reconsideration that simply defends the original decision won’t suffice; courts expect genuine engagement with the IRP’s reasoning.
Defensible decisions
Permanent exclusion will always be difficult and contentious.
But by focusing on fair process, robust evidence and transparent reasoning, school leaders can make defensible decisions that protect their communities while respecting pupils’ rights.
Philip Wood is principal associate at UK and Ireland law firm Browne Jacobson
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