The exclusion process: Implications on SEN students

Simon: Well, hello and a very warm welcome to the latest podcast from the education team here at Doyle Clayton. I'm Simon Henthorn and I’m head of the team, I'm joined today by my colleague Amara Ahmed. Now Amara is an expert in Special Education Needs Law, this is an area where we're getting more and more enquiries; one area we get asked a lot about is exclusions, and particularly exclusions from private schools of pupils with SEN, and that's going to be the focus of today's podcast.

We find there's a degree of nervousness about exposing a school to a risk of claims or complaints, and there's no doubt about it, it's not the most straightforward of issues to deal with. That said, we do regularly advise schools on these matters and done properly, the risk of any successful claim is really quite small. So what we'll do is talk you through some of the issues and give you, as school's, some key tips as to how to navigate through this area.

The sensible starting point is a brief look at the relevant law which underpins this area, Amara, what key things are in play here?

Amara: Thanks, Simon. So the key areas of law are the Equality Act 2010 and one of the main things to remember is that an exclusion can be lawful if it's carried out for a legitimate reason and it's a proportionate way of achieving that legitimate aim. One of the key things to start off with is to make sure that as a school, your policies are up to date, there's some helpful guidance from the Equality and Human Rights Commission, and it's called Technical guidance for Schools.

The Equality Act says that it's unlawful for an education provider to treat disabled students less favourably compared to other students, and there are different forms of discrimination which are prohibited under the Equality Act; these include things like discrimination which arises from a disability, there can be direct discrimination, but also indirect discrimination. There's a duty to make reasonable adjustments and pupils are also protected from harassment and victimisation.

Simon: Just pausing there, Amara, so the Equality Act is clearly going to be relevant to this area and that's going to be the main focus of today's podcast; but what other potential issues or areas do we need to be aware of? I'm thinking here, say parental contracts.

Amara: So for fee paying independent schools, when a pupil joins the school the parent enters into a contract. There are express terms and conditions of the contract, and there's also an implied term to exercise the contract with reasonable skill and care. So the parent can, if they have a grievance with the school, either access the school's complaints procedure, consider bringing a claim for breach of contract if the parent feels that the contract has been breached, and also consider a claim for disability discrimination under the Equality Act. The claim for disability discrimination is heard in the tribunal and not in the court, where as a breach of contract claim is heard by the county court.

Simon: I think you probably agree here that most clients seem pretty ok with the contractual position, but really a lot of the questions we get are around the Equality Act, particularly the duty to make reasonable adjustments, and also this test of objective justification which you've taught about. Maybe we could just give an example as to what that might look like in practice, that defensive, objective justification?

Amara: A good example is where a school carries out a health and safety assessment before deciding whether or not one of their pupils who has a physical disability ability can attend a school trip, after carrying out the assessment, the school might conclude that it's inappropriate to allow that pupil onto the trip because the school can't safeguard the pupil and/or the staff member. In that situation a school would be justified that the unfavourable treatment towards a pupil, in terms of that pupil not being able to go on the school trip, is necessary and proportionate in order to protect that pupil’s safety, and that's an example of objective justification. So when we think about objective justification, we think about the aim, for example, the safeguarding keeping a pupil and staff safe and this must be a legitimate aim.

Simon: So Amara just cutting in there, thinking about exclusions, maybe we've got a child who's behaviour is such that means that there are safeguarding risks, is that the sort of thing that we are talking about, maybe there's some concerns for members of staff as well?

Amara: If a particular child's behaviour puts staff, the child themselves or other pupils, other children in danger, then that would be a legitimate aim in the safeguarding of the members of the school community would be a legitimate aim. Other things to consider for objective justification, or whether alternative measures can be used to meet the legitimate aim without having a discriminatory effect. So you would do a risk assessment for example and think about what other measures you can put in place in order to achieve that aim and exclusion would very much be a last resort. But those other steps have to be precautionate so that cost considerations are relevant.

Then there's also consideration about whether or not the legitimate aim outweighs the discriminatory effects of the unfavourable treatment; so the more discriminatory the measure, the harder it is to justify. So for example, exclusion, in terms of behaviour policies, is absolutely a very last act and so the justification has to be appropriate and the legitimate aim needs to outweigh the discriminatory, effects of the exclusion, so it has to be the last resort. Then another consideration is the proportionality and the burden on the education provider, cost considerations are relevant; schools are able to look at their budget to see whether or not they're able to afford to take some of the measures, but the burden does fall on the education provider to show that the unfavourable treatment has been objectively justified, so always something that needs to be at the forefront of that of a school's mind when they're considering exclusion.

Simon: OK, well if we now take a look maybe as to how this actually works in in practice, I’m particularly mindful of the objective justification and proportionality which you've just helpfully outlined. What steps should schools be taking on a practical level to minimise the risks of any potential claimants and to make sure the object to justification defence applies?

Amara: The process to follow should be set out within the school's behaviour policy which sets out how exclusions work within that particular school. So, for example, a policy may say that a child can only be excluded in response to a serious breach of schools policies, or if allowing the child to remain in school would seriously harm the education or welfare of the children in the school. So those tests just have to be met first and then after that, if the decision maker thinks that those tests have been met, then there should be consultation with both the schools’ designated safeguarding lead and the Special Educational Needs Coordinator to think about whether alternative measures other than exclusion could be put in place, either in response to the serious breaches or in terms of safeguarding and minimising any serious harm to both towards the child themselves and the other children in the school. But if that can't be done and there's a risk assessment that's undertaken to show that it can't be done, then the decision to exclude will be justified.

Quite a lot of thought needs to be put into the risk assessment though, because the best risk assessments score risk both in the first instance and then score the risk again, with the measures and support being put in place for the child, so it's helpful to show that after the measures were put in place, the risk didn't dissipate or it was reduced but not significantly. So we tend to advise schools to use a scoring mechanism, so you can record the level of risk both before and after the measures have been put in place, see whether or not the risks can be reduced to an acceptable level, and if they can't be reduced to an acceptable level, then the decision to exclude will be justified.

Simon: We've talked about engaging other stakeholders here so the DSL, SENCO, clearly going to be highly relevant, what about the parents of the child that could be excluded?

Amara: I think that there has to be good liaison with parents from the outset, they need to understand what the school is thinking, they need to be told what measures are going to be put in place and the risk assessment should be shared with them.

Simon: What stage in the process would you advise this to take place, say a meeting with the parents to talk through these points?

Amara: As soon as possible, so as soon as the school considers that there's been breaches of the school's behaviour policy or that the child's behaviour is causing harm to either their education or welfare of other children, to staff members or to themselves.

Simon: Ok, thank you, Amara. Just thinking back about the process, obviously the process is going to vary depending on individual schools’ behavioural policies, but we tend to see the same sorts of key points being covered and maybe you could just quickly outline them for our listeners.

Amara: So if this is a response to a particular incident or particular breach of the school's policy, then the first thing to do is to ensure that a thorough investigation has been carried out in relation to that incident or series of incidences, and then to consider all the evidence available which either supports the allegation or otherwise; and take into account the schools’ behaviour policies, their code of conduct and the standards they set for their students, those policies will be relevant as well. There should be a process that allows and encourages the child to give his or her version of events as well, and that that needs to be part of the initial investigation. There also needs to be some consideration about provocation, about whether or not the incident was provoked, for example by bullying, other factors that might be in play. It's a good idea to consult others where the child has special educational needs, I mentioned previously, the designated safeguarding lead and the school SENCO, but it's also important not to consult anyone who may later have a role in reviewing the head teacher's decision, because the policy may set about the right of appeal to an exclusion, so that would be an internal right of appeal to the permanent exclusion based on the school's own processes and a lot of school policies set out that that right of appeal is heard by the governing body or a panel.

Simon: So you make some quite important points here, that right at the outset, schools need to really think the whole process through, map out who's going to be responsible for what, so individuals don't get tainted with the process. So we've talked about objective justification, we haven't really touched on reasonable adjustments. Now the law here applies where a child is disabled and it puts a particular disadvantage because of some sort of practice or criteria in place and it triggers an obligation on the employer to consider making reasonable adjustments to try and avoid that that disadvantage, so how does that all play out in terms of exclusions?

Amara: So the school is able to make reasonable adjustments to its policies, practices and criterion, and that does include its behaviour policies and its exclusion policies. Parents often rely upon that and say that the school hasn't made any adjustments to the policy and have applied it as is, so that's why it's important to do the risk assessment, because you can then evidence as a school that you've put in measures specific to that particular child and made adjustments, but having done so, you've calculated or you've scored the risk again and the risk hasn't been sufficiently mitigated; that's a good way of evidencing that after adjustments that have been put in place, the child either is still breaching the behaviour policy or is still posing a risk to himself or others or school staff.

Simon: So the risk assessment stage is a key part of the process which really does need to have proper engagement by the school and all relevant parties.

Amara: Yeah, it's important because it can highlight where reasonable adjustments are helpful and do work, but it can also if those adjustments are not working and your particular school isn't able to put the support in place in order to mitigate the risks, then it helps evidence that adjustments have been made and still the risks haven't been mitigated and exclusion is the only remedy available

Simon: That sort of feeds quite nicely into the proportionality part of the objective justification test, the last resort really.

Amara: Yeah, it shows that it's the last resort on all of the measures have been tried and tested.

Simon: So we've gone through the process, the decision’s now being made internally that unfortunately exclusion is going to be the outcome, Amara what's the best way for that decision to be communicated?

Amara: I think that the best way to communicate the decision is it has to be in writing, so a decision letter which sets out the basis of the decision, but also references the school's policies, as well as listing the other strategies that have been tried without success. I would also advise attaching the Risk assessment and the behaviour policy to the letter, if these haven't previously been disclosed to the parents.

Simon: That's obviously quite a big step, quite a lot of work for a school to do, why do you recommend they invest the time at this stage?

Amara: I think that it's important for the parents to understand that other strategies have been tried, and that exclusion is very much a last resort and that actually they'll be able to read from the risk assessment itself that the risk posed by their child, in terms of the child's health and safety or risk to others, is significant and the school hasn't been able to mitigate it against it from within its own resources. It will help prevent a claim further down the line because parents can bring in an appeal to the Special Educational Needs and Disability Tribunal within six months of an act of discrimination and they can ask the tribunal to make a determination regarding alleged disability discrimination. I think that if parents see a well reasoned decision letter regarding the exclusion, they’ll be less likely to bring that type of appeal.

Simon: Thank you Amara, also as you say, it's a useful record of contemporaneous records as to the thought process of the school and the decision maker at the relevant time, so if a claim ever was brought, it will be pertinent(?) to that claim and the school's defence. We've just touched on what, say, disappointed, disgruntled parents might do to challenge a decision, there's an internal appeal, you mentioned they could also bring a claim to the First Tier Tribunal, perhaps you could just tell people a little bit more about that.

Amara: Yeah, so the First Tier Tribunal for Special Educational Needs and Disability hears claims against schools, including independent schools, regarding discrimination, the process differs from civil claims in other courts. This is because parents can't include a claim for financial compensation, but the Tribunal can make other orders that it deems appropriate. For example, the Tribunal can make a declaration that there has been a discriminatory conduct and the Tribunal can also make orders asking the school to apologise in writing, and orders to review and amend school policies. Also, the Tribunal can recommend training for particular staff members or whole school training. Parents can lodge their claim in the Tribunal within six months of the discriminatory act, but normally the first that a school or the school trust will know about the claim is on receipt of a registration order from the Tribunal, which normally comes alongside case management directions with a copy of the claim form and the claimants documents from the Tribunal. That's quite a lot of information that can be received all at once, and the directions at that stage will include the entire timetable for the proceedings, including the date for the final hearing, and with other sometimes short deadlines that cannot be missed, otherwise there's the risk that the school could be barred from participating in the proceedings if it can't adhere to the case management directions. So if, as a school, you do receive a registration order with case management directions, it's quite important to act upon this straightaway. Sometimes the timetable is short and the directions can be quite onerous on the schools for them to meet, and this is where we can help.

Simon: Thank you Amara, that was very helpful. I think it might be a good idea at this stage if you could maybe remind people about the Equality Act and it's sort of general obligations which are always going to apply in this area.

Amara: Sure, the Equality Act 2010 makes it unlawful for the responsible body of a school to discriminate against, harass or victimise, a pupil attending the school, a potential pupil or a former pupil. And there's broadly three categories of duties on the responsible body; so that's not to discriminate in admission arrangements and practices, not to discriminate in the provision of education and access to benefits, facilities and services, and then also duty to make reasonable adjustments, which we discussed earlier. The discrimination is unlawful in relation to prospective pupils, so that's relevant when a school comes to think about how it formulates admission arrangements, pupils attending the school, even if they've been temporarily absent or excluded. So for example, in relation to how the school has applied its behaviour policy to a certain situation, which we discussed earlier, and also to form a pupils who have a continuing relationship with the school as an education provide.

So really, the unlawful discrimination can apply to every aspect of school life and cover all school activities, including extracurricular activities, leisure activities after school clubs, homework clubs and facilities such as libraries and IT facilities as well.

Simon: Well, I think it's time to wrap up now, I hope you've found this a useful session. Please feel free to get in touch if you have any queries, and thank you for listening.