SEND and exclusion

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Sam Garner examines what you really need to know about SEND, exclusion and your students.

Summary

  • Students with lower attendance are more at risk of exclusion.
  • The decision to exclude a pupil must be lawful, reasonable and fair.
  • With regard to attendance and exclusions, schools must not discriminate against students protected under the Equality Act 2010.

Recent government statistics show that pupils with a SEN statement or education healthcare plan have an overall absence rate of 8.7%; pupils with SEN support had a rate of 6.5%; pupils with no identified SEN had a rate of 4.3%. This is double the non-SEN student rate for students with an education healthcare plan (EHCP). Pupils with a SEN statement or an EHCP had a persistent absence rate of 24.6%, more than two times higher than rate for pupils with no identified SEN (9.0%).

The Timpson Report, published in 2019, reported that 78% of permanent exclusions were for children with SEN or who were considered in need or were eligible for free school meals. It is regularly reported that students with lower attendance and a higher number of exclusions are more at risk. I must stress that this is correlation and not causation, nor is the education setting responsible. We are, however, a factor in protecting children from safeguarding issues so we need to have awareness and understanding of our involvement in the life of a student.

SEND and exclusion

When exclusions take place, the SENCo must be consulted to discuss whether the child is being excluded for a behaviour directly linked to their SEN; this would potentially be illegal.

I’m not saying don’t exclude and I’m not saying that SEN students should be able to behave without consequences. What I am saying is that is has to be fair and just.

For example, I know of a 5-year-old student with ADHD in infant school who was excluded for hitting a teacher. Fair enough you think. However, when asked what led up to that, it appeared that the student would not come off the playground and the teacher had lost patience and forcefully taken the child’s arm to ‘escort’ them off the playground. Different circumstances altogether. It was potentially self-defence; the teacher should not have physically taken the child as there was no imminent danger to anyone. This is where the SENCo should be involved, to be an advocate for the SEN student and ensure that support and regulations are being adhered to.

Discrimination

With regard to attendance and exclusions, schools must make sure that they do not discriminate against students protected under the Equality Act 2010. One characteristic is having a disability, defined as having: ‘a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities’. If a student is considered to have a disability, the education setting is expected to make reasonable adjustment for that student. If a student is absent, or has been excluded because a reasonable adjustment has not been made for the student’s disability, the school would be deemed to be discriminating against that student.

Decision making

The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty not to discriminate against pupils on the basis of protected characteristics, such as disability. Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. Disruptive behaviour can be an indication of unmet needs. Therefore, when a school has concerns about a pupil’s behaviour, it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion. In this situation, schools should consider whether a multi-agency assessment that goes beyond the pupil’s educational needs is required.

Head teachers should, as far as possible, avoid permanently excluding any pupil with a statement of SEN or EHCP or a ‘looked after’ child and the local authority should always be involved.

Review your exclusion register and the event that lead to the exclusion. What could the school have done to prevent the event outside of the student? E.g. what environmental changes, or differences in actions by others would have led to a more positive outcome? Could these actions be considered reasonable adjustments under the Equality Act 2010?

Further information

  • ‘Judge orders schools to make reasonable adjustments for challenging behaviour’, Learning Disability Today, 14 August 2018: https://bit.ly/3vTMh0D
  • ‘Exclusion from maintained schools, academies and pupil referral units in England: Statutory guidance for those with legal responsibilities in relation to exclusion’, DfE, September 2017: https://bit.ly/2UEo5m3
  • ‘Reasonable adjustments for disabled pupils: Guidance for schools in England’, Equality and Human Rights Commission, 2015: https://bit.ly/2Ut9lWW

Toolkit

Use the following items in the Toolkit to help you put the ideas in this article into practice:

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About Author

Sam Garner

Sam Garner is an education consultant with specialist expertise in access arrangements and mental health in schools. She is a freelance trainer, and regularly speaks in schools to parents, staff and students (www.garnereducation.co.uk). She has also written a series of brief targeted CBT programmes designed to be run by school staff with students, including Exam Anxiety and Self Harming (www.rebalanceprogramme.com).

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