An inquiry set up by the Children’s Commissioner for England this week claimed to have uncovered “clear evidence” of illegal exclusions at schools.

In a report called They Never Give Up On You, the inquiry team said this evidence ranged from cases where Year 11 students were sent home at Christmas and told not to come back until their exams in June, to ‘informal’ exclusions when someone was told verbally, with no correspondence with parents, to go home for a few days, or not to come back before the school has interviewed their parents.

“This informal ‘sending home’, not recorded and done ‘by the back door’ is illegal,” the Commissioner, Dr Maggie Atkinson, said.

The inquiry – the first to be undertaken by a Children’s Commissioner using powers under the Children Act 2004 – also urged the Government to reverse recent changes brought in through the Academies Act.

These saw the removal of the right of pupils and parents to appeal against unfair exclusions, and have a binding judgement given if a school has acted unfairly.

The report said the system of Independent Review Panels introduced by the 2011 Act, where panels do not have the ability to insist on reinstatement, did not offer sufficient safeguards against schools acting unreasonably or unlawfully. The new panels are also inconsistent with Article 6 of the European Convention on Human Rights, it claimed.

The report meanwhile cited allegations from a barrister specialising in education law, David Wolfe, that some academies were illegally stopping students from appealing against exclusions, “because their funding contracts are between the school and government, and do not include rights for the child or family”.

The report suggested that students should only be excluded if they are harming themselves or others, or if they are preventing others from learning. “They should not be excluded for minor breaches of school rules,” it said.

A clearly understood, consistently applied sliding scale of punishment should be used with exclusion as an “absolute last resort”, the inquiry added.

The report also recommended that:

• The Government should conduct full research into the extent of unlawful exclusions, and investigate as a matter of urgency allegations of a breach of the law;
• Where Ofsted finds evidence of unlawful activity in the course of an inspection, the school should automatically receive a grading of ‘inadequate’;
• Concerted action be taken to close gaps that see children with certain backgrounds more likely to be excluded. Government statistics showed that “a Black boy from an African Caribbean background, who has SEN and is also from a low income household, is 168 times more likely to be permanently excluded from the same school than a White female classmate, who does not have SEN and comes from a more affluent household”;
• The Department for Education issue clear and transparent guidance for the exclusion thresholds that schools use to decide on what to do when dealing with a child at risk of exclusion;
• More should be done to improve young people and their parents’ knowledge of exclusions policy and procedures. The report claimed that many did not know their rights and so did not know when a school was acting unreasonably, "or in extreme cases, illegally".

The inquiry nevertheless concluded that most schools worked hard to cater for troubled students.

Dr Atkinson said: "For the first time schools are on record saying they had illegally excluded pupils. Due to the informal nature of such exclusions it is difficult to know how widespread this practice is but it is worth further examination. Our inquiry, which took evidence from a wide range of education partners and young people, found both good practice and serious causes for concern.

“Our report recognises that exclusion may in rare cases be a necessary last resort. It should happen only if a child is a danger to his or herself or others, or when learning is so disrupted that only exclusion is possible. But all exclusions must be within the law. They must be seen to be fair, and proven to be effective in solving the problems they are meant to address."

The report can be viewed here.