The Department for Education (the “DfE”) have published revised exclusions guidance in July 2017 following a consultation to amend the existing guidance. The new guidance, available here, comes into force in September 2017. The law concerning exclusions has not changed. At the consultation stage, IPSEA raised a number of concerns and suggestions (our full response can be found here), in particular:
The DfE has made clear (paragraph 3) that the law does not allow for extending a fixed-period exclusion or ‘converting’ a fixed-period exclusion into a permanent exclusion; but, goes on to say that in exceptional circumstances, a fixed-period or permanent exclusion may be issued to begin immediately after the end of the fixed period. However, there is an additional test which applies when a head teacher wishes to permanently exclude a pupil and the normal procedures for permanently excluding a pupil must always be followed. IPSEA believe this should have been made clear in paragraph 3 of the guidance.
In relation to the amendment of statements/EHC Plans following permanent exclusion, paragraph 47 of the 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 previous guidance, which stated:
“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 new guidance does not properly reflect the law, as detailed in our response to the consultation. We can see no justification for this change, and we are concerned that it may lead to confusion regarding the LA’s legal duties and parents or carers legal rights.
The new guidance contains separate annexes for parents, head teachers and governing bodies. Annex C contains a non-statutory document for parents. Most of the information in the guidance is helpful and details the rights of parents when children are excluded. However, 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”.
In IPSEA’s response to the consultation, we requested it should be clarified that academies cannot direct a pupil off-site to improve their behaviour unless it is specifically stated that they can do so in their Academy Trust’s Articles of Association. It is disappointing that the DfE have not clarified this in the guidance.
Finally, IPSEA recommended explaining in the guidance that part-time timetables amount to an unlawful exclusion. In our experience part-time timetables are frequently used by schools which are failing to meet a child’s needs. We proposed adding information into the guidance to make clear that placing a pupil on a part-time timetable is only permitted in extremely limited circumstances, and that only the local authority (not the school) can make this determination. Sending a pupil home in any other circumstances would amount to an unlawful exclusion. Unfortunately the DfE have not accepted this important recommendation and have missed a vital opportunity to clarify this issue. IPSEA continue to maintain the guidance is needs further
Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.