PART 1 General

Citation, commencement, extent and application

1.—(1) These Regulations may be cited as the School Discipline (Pupil Exclusions and Reviews) (England) (Amendment and Transitional Provision) Regulations 2023, and they come into force on 1st September 2023.

(2) These Regulations extend to England and Wales.

(3) These Regulations apply in relation to relation to exclusions of pupils from maintained schools, pupil referral units and Academies in England.

Interpretation

2.  In these Regulations—

“ the 2012 Regulations” means the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012( 2);

“ Academy” means an Academy school or alternative provision Academy.

Amendment of the 2012 Regulations

3.  The 2012 Regulations are amended in accordance with regulations 4 to 14.

Amendment of regulation 2 of the 2012 Regulations

4.  In regulation 2 (interpretation), in paragraph (1)—

(a) omit the definition of “coronavirus”;

(b) before the definition of “home local authority” insert—

“extraordinary events or unforeseen circumstances” means extraordinary events or unforeseen circumstances arising after a meeting has been agreed to take place in person; ”;

(c) omit the definition of “relevant exclusion”;

(d) after the definition of “remote access” insert—

““ remote meeting request ” means a request by a relevant person for a meeting to be held using remote access; ”.

PART 2 Maintained Schools

CHAPTER 1 Amendments relating to remote access meetings

Amendment of regulation 5 of the 2012 Regulations

5.—(1) Regulation 5 (exclusion of pupils: head teacher’s duty to inform relevant person, governing body, local authority, social worker and virtual school head) is amended as follows.

(2) After paragraph (3)(b)(ii) insert—

“(iia) where a meeting of the governing body is to consider the exclusion, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”.

(3) In paragraph (3)(b)(iii) and (iv), after “representations” insert “or a remote meeting request”.

Amendment of regulation 6 of the 2012 Regulations

6.—(1) Regulation 6 (functions of the governing body in relation to excluded pupils) is amended as follows.

(2) For paragraph (3A) substitute—

“(3A)  Paragraph (3B) applies if a remote meeting request has been made. ”.

(3) In paragraph (3B)—

(a) in the words before sub-paragraph (a), for “may” substitute “must”;

(b) omit sub-paragraph (b).

(4) After paragraph (3C) insert—

“(3D)  Where—

(a) a social worker or virtual school head; or

(b) their nominated representative as referred to in paragraph (3C),

attends a meeting referred to in paragraph (3)(c) which is taking place in person, they may do so using remote access provided the governing body are satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3E)  Paragraph (3F) applies if—

(a) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting referred to in paragraph (3)(c) to be held in person; and

(b) the meeting is not already required to take place using remote access pursuant to paragraph (3B).

(3F)  Where this paragraph applies, the meeting referred to in paragraph (3)(c) may be held using remote access, provided the governing body are satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3G)  Subject to the exception made for persons referred to in paragraph (3D), a meeting referred to in paragraph (3)(c) must be held in person unless—

(a) a remote meeting request is made; or

(b) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting to be held in person,

and the governing body are satisfied that the conditions in paragraph (3B)(a), (c) and (d) are met. ”.

(5) In paragraph (6)(b)—

(a) after paragraph (iv) insert—

“(iva) where a meeting of the review panel is to review the governing body’s decision, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”;

(b) in paragraph (v)—

(i) after “for a review” insert “or a remote meeting request”;

(ii) for “and what the application” substitute “, and what these”;

(c) in paragraph (vi)—

(i) after “the application” insert “or remote meeting request”;

(ii) for “and the date by which the application” substitute “, and the date by which these”.

(6) In paragraph (7), for “paragraphs (7A), (7B), (7C), (7D) and” substitute “paragraphs (7E), (7F) and”.

(7) Omit paragraphs (7A) to (7D).

(8) Before paragraph (8) insert—

“(7E)  Paragraph (7F) applies where, immediately before the applicable time limit referred to in paragraph (7)(a) or (b) expires, the meeting referred to in paragraph (3)(c) has not been held because—

(a) it has not been reasonably practicable to meet in person for a reason related to extraordinary events or unforeseen circumstances; and

(b) it has not been reasonably practicable to meet by way of remote access for a reason related to the satisfaction of the conditions in paragraph (3B)(a), (c) and (d).

(7F)  Where this paragraph applies, the time limit referred to in paragraph (7)(a) or (b) within which the governing body must take steps is extended by such period as is reasonably necessary for a reason related to the extraordinary events or unforeseen circumstances. ”.

CHAPTER 2 Amendments relating to cancelling exclusions

Insertion of regulation 8A into the 2012 Regulations

7.  After regulation 8 insert—

“Cancellation of exclusion of a pupil

8A.— (1)  Subject to paragraphs (2) and (3), if a head teacher decided to exclude a pupil, the head teacher may cancel the exclusion—

(a) either before or after it has begun; and

(b) whether or not the pupil has been admitted to another school following their exclusion.

(2)  A head teacher may not cancel an exclusion under paragraph (1) if, by the time the head teacher comes to make the decision to cancel an exclusion, the pupil—

(a) has already been excluded for more than 45 school days in any school year; or

(b) would have been excluded for more than 45 school days in any school year when the cancellation took effect.

(3)  In cases where regulation 5(3) applies by virtue of regulation 5(2), a head teacher may not cancel an exclusion under paragraph (1) if, by the time the head teacher comes to make the decision to cancel an exclusion, the governing body has commenced a meeting for the purpose of making a decision under regulation 6(2) regarding reinstatement of the pupil.

(4)  Where an exclusion is cancelled in accordance with paragraph (1)—

(a) the head teacher must, without delay—

(i) inform the relevant person, the governing body, the local authority, the social worker and the virtual school head of the cancellation and the reasons for it in writing; and

(ii) reinstate the pupil;

(b) the governing body are not required to consider reinstatement of the pupil under regulation 6. ”.

PART 3 Pupil Referral Units

CHAPTER 1 Amendments relating to remote access meetings

Amendment of regulation 14 of the 2012 Regulations

8.—(1) Regulation 14 (exclusion of pupils: teacher in charge’s duty to inform relevant person, management committee, local authority, social worker and virtual school head) is amended as follows.

(2) After paragraph (3)(b)(ii) insert—

“(iia) where a meeting of the management committee is to consider the exclusion, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”.

(3) In paragraph (3)(b)(iii) and (iv), after “representations” insert “or a remote meeting request”.

Amendment of regulation 15 of the 2012 Regulations

9.—(1) Regulation 15 (functions of the management committee in relation to excluded pupils) is amended as follows.

(2) For paragraph (3A) substitute—

“(3A)  Paragraph (3B) applies if a remote meeting request has been made. ”.

(3) In paragraph (3B)—

(a) in the words before sub-paragraph (a), for “may” substitute “must”;

(b) omit sub-paragraph (b).

(4) After paragraph (3C) insert—

“(3D)  Where—

(a) a social worker or virtual school head; or

(b) their nominated representative as referred to in paragraph (3C),

attends a meeting referred to in paragraph (3)(c) which is taking place in person, they may do so using remote access provided the governing body are satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3E)  Paragraph (3F) applies if—

(a) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting referred to in paragraph (3)(c) to be held in person; and

(b) the meeting is not already required to take place using remote access pursuant to paragraph (3B).

(3F)  Where this paragraph applies, the meeting referred to in paragraph (3)(c) may be held using remote access provided that the management committee are satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3G)  Subject to the exception made for persons referred to in paragraph (3D), a meeting referred to in paragraph (3)(c) must be held in person unless—

(a) a remote meeting request is made; or

(b) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting to be held in person,

and the governing body are satisfied that the conditions in paragraph (3B)(a), (c) and (d) are met. ”.

(5) In paragraph (6)(b)—

(a) after paragraph (iv) insert—

“(iva) where a meeting of the review panel is to review the management committee’s decision, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”;

(b) in paragraph (v)—

(i) after “for a review” insert “or a remote meeting request”;

(ii) for “and what the application” substitute “, and what these”;

(c) in paragraph (vi)—

(i) after “the application” insert “or remote meeting request”;

(ii) for “and the date by which the application” substitute “, and the date by which these”.

(6) In paragraph (7), for “paragraphs (7A), (7B), (7C), (7D) and” substitute “paragraphs (7E), (7F) and”.

(7) Omit paragraphs (7A) to (7D).

(8) Before paragraph (8) insert—

“(7E)  Paragraph (7F) applies where, immediately before the applicable time limit referred to in paragraph (7)(a) or (b) expires, the meeting referred to in paragraph (3)(c) has not been held because—

(a) it has not been reasonably practicable to meet in person for a reason related to extraordinary events or unforeseen circumstances; and

(b) it has not been reasonably practicable to meet by way of remote access for a reason related to the satisfaction of the conditions in paragraph (3B)(a), (c) and (d).

(7F)  Where this paragraph applies, the time limit referred to in paragraph (7)(a) or (b) within which the management committee must take steps is extended by such period as is reasonably necessary for a reason related to the extraordinary events or unforeseen circumstances. ”.

CHAPTER 2 Amendments relating to cancelling exclusions

Insertion of regulation 17A into the 2012 Regulations

10.  After regulation 17 insert—

“Cancellation of exclusion of a pupil

17A.— (1)  Subject to paragraphs (2) and (3), if a teacher in charge decided to exclude a pupil, the teacher in charge may cancel the exclusion—

(a) either before or after it has begun; and

(b) whether or not the pupil has been admitted to another school following their exclusion.

(2)  A teacher in charge may not cancel an exclusion under paragraph (1) if, by the time the teacher in charge comes to make the decision to cancel an exclusion, the pupil—

(a) has already been excluded for more than 45 days in any school year; or

(b) would have been excluded for more than 45 days in any school year when the cancellation took effect.

(3)  In cases where regulation 14(3) applies by virtue of regulation 14(2), a teacher in charge may not cancel an exclusion under paragraph (1) if, by the time the teacher in charge comes to make the decision to cancel an exclusion, the management committee has commenced a meeting for the purpose of making a decision under regulation 15(2) regarding reinstatement of the pupil.

(4)  Where an exclusion is cancelled in accordance with paragraph (1)—

(a) the teacher in charge must, without delay—

(i) inform the relevant person, the management committee, the local authority, the social worker and the virtual school head of the cancellation and the reasons for it in writing; and

(ii) reinstate the pupil;

(b) the management committee is not required to consider reinstatement of the pupil under regulation 15. ”.

PART 4 Academies

CHAPTER 1 Amendments relating to remote access meetings

Amendment of regulation 23 of the 2012 Regulations

11.—(1) Regulation 23 (exclusion of pupils: principal’s duty to inform relevant person, proprietor, local authority, social worker and virtual school head) is amended as follows.

(2) After paragraph (3)(b)(ii) insert—

“(iia) where a meeting of the proprietor is to consider the exclusion, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”.

(3) In paragraph (3)(b)(iii) and (iv), after “representations” insert “or a remote meeting request”.

Amendment of regulation 24 of the 2012 Regulations

12.—(1) Regulation 24 (functions of the proprietor in relation to excluded pupils) is amended as follows.

(2) For paragraph (3A) substitute—

“(3A)  Paragraph (3B) applies if a remote meeting request has been made. ”.

(3) In paragraph (3B)—

(a) in the words before sub-paragraph (a), for “may” substitute “must”;

(b) omit sub-paragraph (b).

(4) After paragraph (3C) insert—

“(3D)  Where—

(a) a social worker or virtual school head; or

(b) their nominated representative as referred to in paragraph (3C),

attends a meeting referred to in paragraph (3)(c) which is taking place in person, they may do so using remote access provided the governing body are satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3E)  Paragraph (3F) applies if—

(a) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting referred to in paragraph (3)(c) to be held in person; and

(b) the meeting is not already required to take place pursuant to paragraph (3B).

(3F)  Where this paragraph applies, the meeting referred to in paragraph (3)(c) may be held using remote access, provided the proprietor is satisfied that the conditions referred to in paragraph (3B)(a), (c) and (d) are met.

(3G)  Subject to the exception made for persons referred to in paragraph (3D), a meeting referred to in paragraph (3)(c) must be held in person unless—

(a) a remote meeting request is made; or

(b) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting to be held in person,

and the governing body are satisfied that the conditions in paragraph (3B)(a), (c) and (d) are met. ”.

(5) In paragraph (6)(b)—

(a) after paragraph (iv) insert—

“(iva) where a review panel is to meet and review the proprietor’s decision, that a remote meeting request may be made, if the relevant person wishes to be able to attend the meeting using remote access; ”;

(b) in paragraph (v)—

(i) after “for a review” insert “or a remote meeting request”;

(ii) for “and what the application” substitute “, and what these”;

(c) in paragraph (vi)—

(i) after “the application” insert “or remote meeting request”;

(ii) for “and the date by which the application” substitute “, and the date by which these”.

(6) In paragraph (7), for “paragraphs (7A), (7B), (7C), (7D) and” substitute “paragraphs (7E), (7F) and”.

(7) Omit paragraphs (7A) to (7D).

(8) Before paragraph (8) insert—

“(7E)  Paragraph (7F) applies where, immediately before the applicable time limit referred to in paragraph (7)(a) or (b) expires, the meeting referred to in paragraph (3)(c) has not been held because—

(a) it has not been reasonably practicable to meet in person for a reason related to extraordinary events or unforeseen circumstances; and

(b) it has not been reasonably practicable to meet by way of remote access for a reason related to the satisfaction of the conditions in paragraph (3B)(a), (c) and (d).

(7F)  Where this paragraph applies, the time limit referred to in paragraph (7)(a) or (b) within which the proprietor must take steps is extended by such period as is reasonably necessary for a reason related to the extraordinary events or unforeseen circumstances. ”.

CHAPTER 2 Amendments relating to cancelling exclusions

Insertion of regulation 26A into the 2012 Regulations

13.  After regulation 26 insert—

“Cancellation of exclusion of a pupil

26A.— (1)  Subject to paragraphs (2) and (3), if a principal decided to exclude a pupil, the principal may cancel the exclusion—

(a) either before or after it has begun; and

(b) whether or not the pupil has been admitted to another school following their exclusion.

(2)  A principal may not cancel an exclusion under paragraph (1) if, by the time the principal comes to make the decision to cancel an exclusion, the pupil—

(a) has already been excluded for more than 45 days in any school year; or

(b) would have been excluded for more than 45 days in any school year when the cancellation took effect.

(3)  In cases where regulation 23(3) applies by virtue of regulation 23(2), a principal may not cancel an exclusion under paragraph (1) if, by the time the principal comes to make the decision to cancel an exclusion, the proprietor has commenced a meeting for the purpose of making a decision under regulation 24(2).

(4)  Where an exclusion is cancelled in accordance with paragraph (1)—

(a) the principal must, without delay—

(i) inform the relevant person, the proprietor, the local authority, the social worker and the virtual school head of the cancellation and the reasons for it in writing; and

(ii) reinstate the pupil;

(b) the proprietor is not required to consider reinstatement of the pupil under regulation 24. ”.

PART 5 Constitution and procedure of review panels

Amendment of Schedule 1 to the 2012 Regulations

14.—(1) Schedule 1 (constitution and procedure of review panels) is amended as follows.

(2) In paragraph 2, omit sub-paragraph (1A).

(3) In paragraph 9—

(a) after sub-paragraph (a), omit the “and”;

(b) after sub-paragraph (b) insert—

“; and

(c) may include a remote meeting request. ”.

(4) In paragraph 10—

(a) for sub-paragraph (3) substitute—

“(3)  Sub-paragraph (4) applies if a remote meeting request has been made. ”;

(b) in sub-paragraph (4)—

(i) after “in sub-paragraph (1)”, for “may” substitute “must”;

(ii) omit paragraph (b);

(c) after sub-paragraph (4) insert—

“(4A)  Sub-paragraph (4B) applies if—

(a) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting referred to in sub-paragraph (1) to be held in person; and

(b) the meeting is not already required to take place using remote access pursuant to sub-paragraph (4).

(4B)  Where this sub-paragraph applies, the meeting referred to in sub-paragraph (1) may be held using remote access, provided the arranging authority is satisfied that the conditions referred to in sub-paragraph (4)(a), (c) and (d) are met.

(4C)  Sub-paragraph (4D) applies where, immediately before the date determined by the arranging authority as referred to in sub-paragraph (2), the meeting referred to in sub-paragraph (1) has not been held because—

(a) it has not been reasonably practicable to meet in person for a reason related to extraordinary events or unforeseen circumstances; and

(b) it has not been reasonably practicable to meet by way of remote access for a reason related to the satisfaction of the conditions in sub-paragraph (4)(a), (c) and (d).

(4D)  Where this sub-paragraph applies, the date determined by the arranging authority as referred to in sub-paragraph (2) is extended by such period as is reasonably necessary for a reason related to the extraordinary events or unforeseen circumstances.

(4E)  Subject to the exception made for persons referred to in paragraph 12(4), a meeting referred to in sub-paragraph (1) must be held in person unless—

(a) a remote meeting request is made; or

(b) for a reason related to extraordinary events or unforeseen circumstances, it is not reasonably practicable for the meeting to be held in person,

and the governing body are satisfied that the conditions in sub-paragraph (4)(a), (c) and (d) are met. ”;

(d) omit sub-paragraphs (5) to (8).

(5) In paragraph 12, after sub-paragraph (3), insert—

“(4)  Where a social worker, a virtual school head, a representative as referred to in sub-paragraph (1), or a representative as referred to in sub-paragraph (3) attends a meeting referred to in paragraph 10(1) which is taking place in person, they may do so using remote access provided the arranging authority is satisfied that the conditions referred to in paragraph 10(4)(a), (c) and (d) are met. ”

PART 6 Transitional arrangements

Interpretation of regulation 16

15.  In regulation 16—

“ relevant person” means—

“ remote access” means access to a meeting to enable those who are not all present together at the same place to attend and participate simultaneously by electronic means, including by live audio and video link;

“ review panel” means a review panel constituted in accordance with Schedule 1 to the 2012 Regulations;

“scrutiny” of an exclusion refers to any of the following—

Exclusion of pupils: remote meetings - transitional arrangements

16.—(1) Subject to paragraphs (3) and (4), this regulation applies to an exclusion of a pupil under—

(a) section 51A(1) of the Education Act 2002( 3) (in the case of a maintained school),

(b) section 51A(2) of the Education Act 2002 (in the case of a pupil referral unit), or

(c) section 51A(1) of the Education Act 2002 as modified by regulation 21 of the 2012 Regulations (in the case of an Academy),

which occurs before 1st September 2023, if scrutiny of the exclusion is or may be required and has not started before that date.

(2) In a case involving scrutiny of an exclusion as referred to in paragraph (4)(a), the head teacher (of a maintained school), the teacher in charge (of a pupil referral unit) or the principal (of an Academy) must, without delay on commencement of these Regulations, give the relevant person notice in writing of the following—

(a) that the relevant person may, within 3 school days of notification, request that the meeting be held using remote access;

(b) how and to whom the request should be made.

(3) In a case involving scrutiny of an exclusion as referred in paragraph (4)(b), the governing body (of a maintained school), the management committee (of a pupil referral unit), or the proprietor (of an Academy) must, without delay on commencement of these Regulations, give the relevant person notice in writing of the following—

(a) that the relevant person may, within 3 school days after notification, request that the meeting be held using remote access;

(b) how and to whom the request should be made.

(4) A notice in writing referred to in this regulation—

(a) may be given by—

(i) delivering it directly to the relevant person,

(ii) delivering it to the relevant person’s last known address, or

(iii) sending it by first class post to the relevant person’s last known address;

(b) unless the contrary is shown, will be taken to have been given—

(i) where first class post is used, on the second working day after the date of posting, or

(ii) where the notice is delivered, on the date of delivery.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, while extending to the legal jurisdiction of England and Wales, apply only in relation to England.

The changes made by Parts 2 to 5 of these Regulations apply to exclusions that take place on or after 1st September 2023. By virtue of Part 6 of these Regulations (transitional arrangements), the changes regarding remote meetings made by Parts 2 to 5 also apply to meetings that may be or are required to take place on or after 1st September 2023 in respect of certain exclusions that took place before that date.

These Regulations amend the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 ( S.I. 2012/1033) (“ the 2012 Regulations”). The 2012 Regulations set out procedures in relation to exclusions under section 51A of the Education Act 2002, from maintained schools, pupil referral units and Academies (meaning Academy schools or alternative provision Academies) in England. Parts 2, 3 and 4 of these Regulations make the same types of changes in respect of maintained schools, pupil referral units and Academies respectively.

Part 1 of these Regulations (general) contains introductory provisions. Regulation 4 amends regulation 2 of the 2012 Regulations, which contains definitions of general relevance to the 2012 Regulations.

Part 2 of these Regulations (maintained schools) amends Part 2 of the 2012 Regulations, which contains provisions regarding maintained schools. Within Part 2 of these Regulations, Chapter 1 makes amendments which provide for remote access meetings to take place in certain circumstances and when certain conditions are met; and Chapter 2 inserts a new regulation 8A into the 2012 Regulations regarding the cancellation of exclusion decisions. New regulation 8A enables a head teacher to cancel a school exclusion decision in certain circumstances and where specified requirements are met; it also requires the head teacher to inform certain persons of the cancellation of the exclusion and to reinstate the pupil without delay.

Parts 3 and 4 of these Regulations make similar changes in relation to pupil referral units and Academies respectively.

Part 5 of these Regulations (constitution and procedure of review panels) amends Schedule 1 to the 2012 Regulations, which contains provisions regarding the constitution and procedure of review panels.

Part 6 of these Regulations (transitional arrangements) provides for transitional arrangements regarding the rules on meetings that take place using remote access, for exclusions that occur before 1st September 2023 where the consideration or review of the exclusion has not yet been completed. Regulation 15 covers the interpretation of terms used in regulation 16. Regulation 16 sets out what the transitional arrangements are and makes provision for how notices may be given in this context.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen. An explanatory memorandum is published alongside these Regulations onwww.legislation.gov.uk. Hard copies are available from the Department for Education, Sanctuary Buildings, Great Smith Street, London SW1P 33BT.