Department for Education releases new statutory suspension and exclusions guidance

As anticipated following the passing and Royal Assent being given to the Children’s Wellbeing and Schools Act 2026, the Department for Education has released new statutory guidance for suspensions and exclusions (“Guidance”). This version applies from 26 July 2026.

Safeguarding separation

Since the case of R (CHF) v Newick CE Primary School [2021] EWHC 2513 (Admin) the power of a school to utilise a safeguarding separation was identified, but little understood or applied. In our experience, many local authorities have actively railed against the notion of a safeguarding separation as a power. It is therefore very welcome that this version of the Guidance now deals with the concept, expressly ensuring all stakeholders know of its existence and how it can be utilised.

While schools and academies can seek to arrange education during the temporary period that a safeguarding separation is in place, the Guidance is clear that such a scenario activates a local authority’s section 19 duty. It is critical that the current provision is reviewed and refreshed to ensure that inclusion teams are able to react with the pace needed when suitable education is required in response to a safeguarding separation.

In essence, the power seeks to lawfully permit the scenario when a pupil is temporarily forbidden to attend the school’s premises due to an allegation of harm which requires the physical separation from a pupil or other pupils.

The Newick case was centred on a very small primary setting with cross allegations of peer-on-peer sexual abuse. The lack of resource available at the school to keep the children separated whilst the allegations were considered necessitated the physical separation to allow an immediate response, but at a time when culpability could not be established. This is a useful tool, but not a ‘go to’ when needing time to investigate a breach of your behaviour policy which could warrant suspension or permanent exclusion.

First, schools need to ensure their own internal resource can accommodate a pupil to allow a fair and proper investigation to take place before a serious sanction is settled upon. If the allegation comes within scope of safeguarding, and the school can demonstrate it cannot manage the risk with the accused on site, then a safeguarding separation should be explored to lawfully give the physical space needed.

Off-site directions

These additions are directed at academies who, up to the recent legal reforms, sat in the uncomfortable position of relying on powers granted to their trustees under the articles of association for the academy trust company. Maintained schools have a power granted under section 29A Education Act 2002.

The law has been amended by Education (Educational Provision for Improving Behaviour) (Application to Academies and Pupil Referral Units and Minor Amendments) Regulations 2026 to put academies on the same statutory footing. The power is actually granted to the governing board, so this will require schemes of delegation in an academy trust to be considered to ensure local governance is empowered to exercise this power (unless it is to be reserved to trustees).

It is therefore critical now that two steps are taken:

1. all academies who have active off-site directions need to address the transitional requirements set out at paragraphs 55 to 57 of the Guidance which includes providing a compliant written notice (details set out at paragraph 45); and

2. ensure compliance with the statutory regime going forward in the new academic year.

Some schools may have already been applying these requirements, but it would be a good piece of housekeeping to ensure that was done to ensure a level of consistency at the point of the new Guidance applying. There needs to be proper reintegration when a direction ends and a pupil returns. The governing board needs to actively review placements and, from 1 August 2026, hold the first review meeting, even if one has taken place under the old regime in the last 10 weeks. These review meetings need to include other key stakeholders for the pupil. The outcome of these meetings must be confirmed in writing with reasons no later than the sixth day after the meeting was held. Review meetings must then be held at intervals which the governing board determines are appropriate for the pupil’s needs.

Take some time to review systems, the Guidance and implement new workflows to ensure compliance.

Off-rolling

This is not a new concept, but one which is getting further refinement to highlight when a pupil exiting a school could be deemed to be an off-rolling event. Some of these will be clear to school leaders but others may require some reflection, particularly around sixth formers. The examples given are as follows:

• exercising undue influence over a parent to remove their child from the school under the threat of a permanent exclusion and encouraging them to choose Elective Home Education or another school place

• moving a pupil to off-site AP where that is not in the best interests of that pupil

• encouraging a post-16 student not to continue with their course of study when this is against the best interests of that pupil

• sending a pupil home without a formal suspension regardless of whether it occurs with the agreement of parents

• placing a pupil on a part-time timetable for behavioural reasons (contrast this with steps taken to support a SEND need)

• intentionally removing a pupil from the school roll without correctly identifying a prescribed ground under regulation 9(1), (2) or (3) of the School Attendance (Pupil Registration) (England) Regulations 2024 (see Working Together to Improve School Attendance for detail on the prescribed grounds).

If a parent feels that they are in an off-rolling situation they can access an academy’s complaints policy or for maintained schools, their local authority.

Other key points

While many have understood from the previous version of the Guidance that a managed move was a permanent measure, this version of the Guidance makes it explicit that trial periods are not permitted by law. However, the same approach could be achieved with an off-site direction on the basis that a managed move forms part of the options to consider as a next step. This would not be an automatic outcome and would need all parties to agree at the relevant time that a move to a managed placement from the off-site direction was in the best interests of the pupil.

In the case of SEND pupils who have disabilities which manifest in behaviours that impact learning, the Guidance highlights a school’s duty to use best endeavours to ensure the appropriate provision is made. Senior leaders will need to ensure they have a good understanding of what has been done and what more could be done in setting to support the behavioural needs. This will allow Headteachers to set out to reviewing bodies how the best endeavours duty has been met.

Our Education team has a depth of experience supporting various settings with exclusion cases. Please do get in touch if you need assistance.