Response to DfE amended guidance on exclusions 03/05/2017 03:58

IPSEA has responded to the Department for Education’s consultation on their statutory exclusions guidance. Through our work, we know that children with SEN are often unlawfully excluded from school, and suffer from a higher rate of exclusion than other children. We therefore welcomed the opportunity to give our feedback on the proposed amendments to the guidance. We recommended a number of changes in order to make clear the legal protections available for the families of children with SEN if their child is excluded from school. In particular, our response emphasises the illegality of ‘informal’ exclusions (including part-time timetables) and the right of the parents or carers to request a particular school when a child with an EHC Plan is excluded.

We set out below the questions to which IPSEA responded.  You can find the DfE’s proposed amended guidance here and the consultation questions here.

We have attempted to clarify in paragraph 3 of the Guidance that exclusions cannot be extended or converted. Extending a fixed-period exclusion involves excluding the pupil for a further fixed-period exclusion on the expiry of the original term. The so-called conversion of a fixed-period exclusion into a permanent exclusion involves issuing a further, separate permanent exclusion. This clarification does not have any significant practical consequence on the process or accountability for exclusion decisions. Is this clearly expressed? 

As ‘extensions’ and ‘conversions’ are not legal, we recommend avoiding saying that schools can enact them (even if only in exceptional circumstances). We would recommend the following wording: “A fixed-period exclusion can run only for the period defined at the start of that exclusion. That period cannot be changed whilst the exclusion is in effect. For the avoidance of doubt, a fixed-period exclusion cannot be ‘converted’ into a permanent exclusion. The normal procedures for permanently excluding a pupil must always be followed.” 

In paragraphs 47-48  and 181-189 we have attempted to clarify the role of the local authority when a pupil is excluded. We have attempted  to make clearer:  a. the local authority’s legal duties in arranging alternative education for excluded pupils;  b. the local authority’s duty when a pupil with an Education, Health and Care (EHC) plan is excluded (this is simply an update to reflect that statements of special educational need are being phased out and replaced by education, health and care plans -the policy is unchanged); and  c. its legal responsibilities regarding financial readjustments and payments related to an exclusion.  Are the responsibilities of the local authority clear? 

Paragraph 47 of the draft guidance states, “In addition, where a pupil has an EHC plan, the local authority may need to review the plan or reassess the child’s needs, in consultation with parents, with a view to identifying a new placement.” 

This is in fact a significant change from the wording of the existing guidance. Paragraph 45 of the existing guidance states, “In addition, where a pupil has a statement of SEN, the local authority must ensure that an appropriate full-time placement is identified in consultation with the parents, who retain their rights to express a preference for a school that they wish their child to attend, or make representations for a placement in any other school.” 

The wording in the draft guidance does not properly reflect the law, and we can see no justification for this change.  

A permanent exclusion necessitates a change to an EHCP, which must follow the procedures set out in the Special Educational Needs and Disability Regulations 2014 (the ‘SEND Regs’). The Code of Practice envisages that changes to a plan without a review or reassessment would only be made in very limited circumstances, where there are minor or specific changes in the child or young person’s circumstances. The SEND Regs state, in any event, that any proposed amendment by the LA should be treated as if it were an amendment proposed after a review.  

This means the LA has to follow the procedures set out in Reg. 22, including informing the parents of their right to request a particular school and to make representations about the content of the plan. Similarly if a re-assessment does take place, the LA must provide a draft plan to the parents before it is amended and give them time to make representations. If a decision to amend a plan is made, the parent has a right of appeal to the Tribunal.  

Additionally, Regulation 29 of the SEND Regs states, at paragraph 2, that if a child or young person under the age of 18 is not receiving education or training, the LA must review the Plan and if appropriate amend it to ensure they continue to receive education or training.  

We would recommend that the wording of the existing guidance is retained, with only the reference to a ‘statement of SEN’ amended: “In addition, where a pupil has an EHC plan, the local authority must ensurethat an appropriate full-time placement is identified in consultation with the parents, who retain their rights to express a preference for a school that they wish their child to attend, or make representations for a placement in any other school.” 

In paragraphs 76d and 125-130 we have attempted to clarify the role of the Special Educational Needs (SEN) expert to an IRP. This includes attempting to clarify:  a. The role of the SEN expert at an IRP; and b. the experience and expertise the expert should have. Do the revisions make these elements of the SEN expert role clear?  

Under the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (the ‘Exclusions Regs’), the SEN expert is defined as a person who “has expertise and experience of special educational needs” as defined in s. 312 of the Education Act 1996. The definition of SEN in the EA 1996 is if the child has a “learning difficulty which calls for special educational provision to be made for him”. Learning difficulty is defined as either a significantly greater difficulty in learning than the majority of children of the same age, or a disability which either prevents or hinders the child from making use of educational facilities of a kind generally provided for children of the same age in schools within that local authority area. 

Within the draft guidance, at paragraph 126, the SEN expert is described as “someone who has expertise and experience of special educational needs considered by the local authority/academy trust as appropriate to perform the functions specified in the legislation”. 

We would suggest that this description is amended to also refer to disabilities, in line with the definition in the law. 

We have included an additional non-statutory document for parents (Annex C). Is this document helpful for parents whose child has been excluded? Are there any points that would benefit from further clarification?  

One of the answers states, “Schools have the power to send a pupil to another education provider at a different location to improve his or her behaviour without the parents having to agree”.Section 29A EA 2002 permits maintained schools to do this so long as the intention is for the pupil to 'improve his/her behaviour'. However, this does not apply to academies. Our understanding is that maintained schools can require a pupil to be educated off-site without the parent agreeing, but academies cannotunless it is specifically stated that they can do so in their Academy Trust’s Articles of Association.   

We agree with thestatement that “‘Informal’ or ‘unofficial’ exclusions, such as sending pupils home ‘to cool off’, are not allowed, even if they are with the agreement of parents.” We recommend adding a reference to part-time timetables; in our experience these are frequently used by schools which are failing to meet a child’s needs. We propose adding a sentence after the sentence quoted above, stating, “Placing a pupil on a part-time timetable is only permitted in extremely limited circumstances when, for reasons relating to the physical or mental health of the child, the local authority considersfull-time education would not be in the child's best interests. Only the local authority can make this determination. Sending a pupil home in any other circumstances would amount to an unlawful exclusion.”  

Do you have any other views about the clarity of this guidance? 

We recommend that the use of part-time tables is clarified in context of paragraph 14. Parents (or schools) will not always associate a part-time table with informal exclusion and it would be helpful for schools to be clear that they cannot place a pupil on a part time table. We would recommend adding a sentence to paragraph 14 stating “Placing a pupil on a part-time timetable is only permitted in extremely limited circumstances when, for reasons relating to the physical or mental health of the child, the local authority considersfull-time education would not be in the child's best interests. Only the local authority can make this determination. Sending a pupil home in any other circumstances would amount to an unlawful exclusion.” 

There is nothing in the guidance relating to the potential consequences for a school if a child is excluded unlawfully. We would recommend inserting a paragraph after paragraph 14 of the draft guidance explaining that unlawful exclusion of a child with a disability could lead to a successful claim of disability discrimination. This in turn could lead to an order for measures such as training for staff or making up for lost tuition, which would have financial consequences for a school.

Finally, we wish to raise a concern around the Exclusion Regs. We are aware that these require legislation in order to be amended, but we are concerned about the effect of Regulation 12(3). This Regulation states that where an Academy has excluded a pupil, a representative of the local authority in which that Academy is located (and, if applicable, the home local authority) must be permitted to attend the review as an observer but may only make representations with the consent of the proprietor of the Academy. Concerns have been raised that the governing bodies of Academies are not always aware of their duties in relation to pupils with SEND, and that these issues are only raised for the first time if and when the exclusion progresses to an IRP. The governing bodies of academies are under no greater obligations regarding training than the governing bodies of maintained schools, and yet a child at a maintained school has the opportunity of potentially helpful input from the LA, when a child at an Academy is deprived of such assistance. 

We consider that this is out of step with the change in law introduced by the Children and Families Act 2014 which places Academies on the same footing as maintained schools with regard to their duties towards children with EHC plans. 

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