| Independent Panel for Special Education Advice (IPSEA) | Defending children's right to special education provision | |
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Response to the DfES Consultation on Exclusion Appeals Panels7 November 2001 |
IPSEA has grave concerns over the Government's proposals on exclusions, because they do not take into account children with special educational needs who are included in mainstream schools. This web page reprints IPSEA's response to the consultation on these proposals.
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Introduction |
Changes to the law due to come into effect from January 2002 are intended to, and most certainly will, increase the numbers of children with special educational needs who are included in mainstream schools. Although IPSEA fully supports these changes (and indeed has argued for the removal of the 'caveats' in section 316 of the Education Act 1996 and its predecessor for almost a decade), we are concerned that insufficient attention has been paid to the need for adequate support mechanisms (in the form of staffing, training and resources) to be in place to ensure that children's needs can be met by mainstream schools, in advance of the pursuit of inclusion as social policy. We are particularly concerned about schools' abilities to cater for the needs of pupils with autistic spectrum disorders (ASD). These children currently make up 25 per cent of IPSEA's case load, and there are signs already in IPSEA's casework (and that of the National Autistic Society - whose 'Educational Advocacy Line' and Tribunal Support volunteers are trained by IPSEA staff) that very many schools, finding themselves unable to cope with the challenging behaviour presented by children with ASD, are resorting increasingly to exclusion as a solution. Many children with SEN who are excluded are without education for long periods (more than a full year in some cases IPSEA is involved with). In our experience, it is rare for parents of children with SEN to seek simple reinstatement (for example, on the grounds that their child was unjustly accused of the action which prompted exclusion). Most parents of children whose special educational needs give rise to challenging behaviour understand clearly the problems schools experience. A complex of issues often need to be explored by parents, Governors and Exclusion Appeal Committees:
All of these issues need to be on the agenda of Governors' meeting and Appeals Committee meetings when the child whose exclusion is being considered has special educational needs. Children can not rely on their parents, unaided, to be able to raise these important questions -- Harris' research (above) reinforced the findings of his earlier work (see The Special Educational Needs Tribunal: access to justice) in indicating that parents whose children have special educational needs are the least likely of all parents to attend either Governors meetings or Appeals Committees. From September 2002, the situation for parents of excluded children with special educational needs, Governors and members of Exclusion Appeal Panels will become even more complex, as the result of the implementation of the disability discrimination sections of the 2001 SEN and Disability Act (SENDA). In most cases, this will provide parents with a potential additional ground for appeal when a child with SEN is excluded from school (given the large overlap between the children who will be both defined as 'disabled' under the DDA and as having 'special educational needs' under the 1996 Education Act). After September 2002, will an exclusion ordered on the basis that a school cannot manage behaviour which arises from a child's special educational needs be discrimination, i.e. unfavorable treatment (denial of access to education) on the basis of a child's disability? The Secretary of State's proposals with regard to amending legislation on exclusion must be seen in the context of:
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Proposal 1: "To make it a statutory requirement for an appeal panel to balance the interests of the excluded pupil against the interests of all the other members of the school community." |
We believe this is inevitably a pressing issue on Appeal Panel members, whether the requirement for it is in guidance or legislation. We have no evidence that Appeal Panel Members ignore the needs of other members of the school community when considering the reinstatement of an excluded child. We are unaware of the evidence or argument supporting "the case for re-inserting it (the principle) in legislation." We are concerned this case may have been pressed by Local Authority Associations/teacher unions as an attempt to set in place a peg, in future, on which to hang a legal challenge to an Appeal Committee's decisions. Placement of a child with a Statement in a mainstream school is conditional on the education of other children not being affected (s316A Education Act 1996 as amended by SENDA), so this proposal is not at odds with the new SEN legislation. However, s316 requires reasonable steps to be taken to avoid other children's education being affected, where this is believed to be a barrier to mainstream placement. Similarly, then, on termination of a place via exclusion, we believe it should also be necessary for Governors and the LEA to show that there was no reasonable adjustment they could have made to avoid the need for exclusion. We believe that this should be included in the Government's proposed amendments to the legal framework for exclusions. |
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Proposal 2: "To make it clear in the legislation that an appeal panel's remit is not to review the procedure preceding an appeal hearing but instead to consider afresh the question of whether the pupil should be reinstated ..." |
We believe that a procedural error prior to the appeal should not, on its own, be a ground for overturning a school's decision to exclude a child. But, given that a procedural error may be indicative of bad decision-making, we believe it would be wrong to use the law to prohibit Appeal Panels from considering the evidence on procedure along with the other issues. School Governors have a duty in law 'to have regard to' the guidance in DfEE Circular 10/99, which advises that decisions to exclude should only be taken 'once a range of strategies have been tried and failed'; and, that 'students with statements of special educational needs should only be excluded permanently in exceptional circumstances.' We also believe that when a child has been excluded in the absence of this guidance having been followed this should be seen as potentially relevant to a decision on reinstatement. We also believe that when it becomes apparent to an Appeal Committee that a particular school is regularly disregarding correct procedure, including the guidance in 10/99, this fact should be brought to the attention of the LEA.. |
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Proposal 3: "To change the constitutional requirements with regard to the composition of appeals panels so that, whilst they must remain independent, they consist predominantly of people with direct experience of classroom management ... " |
We believe there is a need for a debate, and some reform, with regard to the composition of appeals panels, but this proposal, on its own, seems blatantly aimed at skewing the perspective of the panel as a whole towards the school and away from the needs of the individual child and his/her family. The discussion about composition must also address the very strong case made in the past for lawyers to chair the Panels. To this we would add the need for someone on the Panel to be experienced and trained in special education - given that, at the lowest estimate, it would seem that half of all excluded children have special educational needs. This is in line with proposal 3. On its own, however, proposal 3, if implemented, risks discrediting Panels and those who sit on them. |
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Proposal 4: "To increase the length of exclusion periods before the Governors have a duty to meet ..." |
We accept that the current duty for Governors to meet to discuss an exclusion which brings the total of excluded days in any one term to above five may be burdensome, and would suggest:
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