In 2009/10, 5,740 children were permanently excluded from maintained schools in England. Of these, 74 per cent were children with special educational needs (SEN).
According to exclusion statistics, pupils with Statements of SEN are eight times more likely to be permanently excluded from school. The government has taken a step to address this in its proposed new exclusion guidance, Exclusion From Schools and Pupil Referral Units in England.
The guidance follows the changes made by the Education Act 2011, although the act’s exclusion provisions are not yet in force.
The guidance is clear: where children with SEN demonstrate persistent or serious poor behaviour, schools should consider whether alternative or additional support is required to prevent behavioural problems escalating to a point where exclusion is necessary. It is also unlawful for a school to exclude a pupil simply because they have additional needs that the school feels it is unable to meet.
If exclusion is deemed to be required, head teachers should avoid permanently excluding any pupil with a Statement of SEN. However, unfortunately, there is no reference in the guidance to children supported at a school-based level (i.e., those on School Action or School Action Plus) and no obligation on schools to ensure that consideration is given to whether additional support or interventions would avoid exclusion for these children. The guidance should include measures to ensure that schools do not readily exclude any child with SEN, regardless of whether they have a SEN Statement or not.
The major change proposed in the guidance relates to the procedure for challenging a permanent exclusion. Currently, when a child is permanently excluded, the governing body is required to meet within 15 school days to review the exclusion.
If the governing body upholds the exclusion, parents have a further right of appeal to an Independent Appeal Panel, which can overturn the exclusion and direct reinstatement. Under the new arrangements, although the governing body will still have to meet to review the decision, if it upholds the permanent exclusion, parents will no longer have a further right of appeal, but can ask for this decision to be reviewed by an Independent Review Panel.
The panel’s role will be to review all evidence, after which it may decide to uphold the exclusion; to recommend that the governing body reconsiders its decision; or to quash the decision and direct that the governing body considers the exclusion again. Notably, the review panel does not have the power to reinstate a pupil to the school; this power will rest solely with the governing body. Removing this further right of appeal and replacing it with a review panel will mean that parents have a further hurdle in challenging permanent exclusions. This may discourage parents from challenging exclusions even where they have strong grounds for doing so.
A new right for parents
However, the silver lining for children with SEN is a new right, under the proposed guidance, for parents to request the attendance of a SEN expert at the review panel hearing, even if the school does not recognise that their child has SEN. The expert’s role will be to provide impartial advice to the panel about how SEN might have been relevant to the pupil’s exclusion.
To ensure the impartiality of the expert, the guidance provides that the expert must not have any connection with an interested party or the incident leading to the exclusion. As local authorities are involved in all permanent exclusions, they will be unable to use their own employees and will have to use independent SEN experts. This is essential as it will ensure parents feel they are being assisted by an impartial, independent expert.
Another positive aspect of the proposed guidance is that jurisdiction will be passed to the First-Tier Tribunal (SEN and Disability) for hearing disability discrimination claims regarding exclusions. Currently, claims for disability discrimination are heard by the governing body and Independent Appeal Panel. This change will benefit parents as the tribunal has extensive experience and expertise in hearing discrimination claims.
The guidance is currently open for consultation and it remains to be seen what impact, if any, these proposed changes will have for children with SEN.
