Pupils with SEN account for around 70% of all permanent exclusions and around 60% of fixed period exclusions in England.
There are regulations and guidance for headteachers. They are:
- School Discipline (Pupil Exclusions and Reviews)(England) Regulations 2012
- Exclusion from maintained schools, academies and pupil referral units in England 2017
If your child is sent home to cool off or if you are asked to collect your child everyday after afternoon registration (as the school thinks your child is better at home), this is an informal, or unofficial exclusion. This is unlawful (even if you, as a parent, agree) unless the Head has specifically contacted you in writing to say your child is being excluded every afternoon.
Exclusions can be for parts of the school day (eg lunch time) but they have to be counted and recorded as exclusions.
When can a School Exclude?
First and foremost, any decision to exclude must be made in line with the law (including the European Convention on Human Rights and the Equality Act 2010), it must be rational, reasonable, fair and proportionate.
The Head teacher must also take account of their legal duty of care when sending a child home following an exclusion.
The Head teacher must comply with their statutory duties in relation to SEN – ie they must comply with the SEND Code of Practice. Disruptive behaviour can be an indication of unmet needs and schools should give particular consideration to the fair treatment of pupils with SEN and other groups who are more vulnerable to exclusion.
Early intervention to address underlying causes of disruptive behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have.
It is also unlawful for a Head teacher to exclude a child for a non-disciplinary reason. This includes if the school feels unable to meet the child’s special educational needs or the action of a child’s parents.
A child can only be excluded for a maximum of 45 days or 90 half days in each academic year.
Once a child is excluded for a total of more than five school days (or ten half days) in a term), the Head teacher must notify the Governing Body and the Local Authority.
Once a term, the Head teacher must also notify the Governing Body and LA of any other exclusions of less than five school days.
Any exclusion of a pupil, even for a short time, must be formally recorded as an exclusion.
The Head teacher should, as far as possible, avoid permanently excluding any pupil with an EHC Plan and engage proactively, with parents in supporting the behaviour of children with additional needs.
If the Head has concerns about the behaviour of a child with additional needs or a pupil with an EHC Plan, they should, in partnership with others) consider what additional support or alternative placement may be required. This should include assessing the suitability of provision for a pupil’s SEN.
A Head teacher can only exclude a child in response to a serious or persistent breaches of the school’s behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupils or others in the school.
Tendency to Physical Abuse
In July 2018, there was a landmark ruling by the Upper Tribunal with regard to children with special educational needs being excluded from school due to their “tendency to physically abuse”.
They found that “aggressive behaviour is not a choice for children with autism”. Schools must now make reasonable adjustments to prevent or manage challenging behaviour and justify that any exclusion is proportionate. Prior to this ruling, schools were able to exclude pupils who have tendency to physical abuse, even if the school had made no adjustments to meet their needs.
See C&C v The Governing Body of a School for further details
If your child is excluded:
When the Head teacher decides to exclude a pupil, they must notify you, without delay.
They must also, without delay, provide you with the following (in writing):
- the reasons for the exclusion
- the period of a fixed period exclusion or for a permanent exclusion, the fact that it is permanent
- your rights as a parent to make representations about the exclusion to the governing board and how your child may be involved in this,
- how any representations may be made and
- where there is a legal requirement for the governing body to consider the exclusion, that you have a right to attend a meeting, be represented at that meeting (at your own expense) and your right to bring a friend.
There is also a legal duty to provide alternative education for pupils on fixed or permanent exclusions from the sixth day of the exclusion unless your child is in the final year of compulsory education and does not have any further public examinations to sit.
The five days of exclusion do not have to be consecutive. If the child is on a fixed period exclusion, it is the legal duty of the school to organise. If the child is permanently excluded, it is the legal duty of the LA to organise.
If your child has an EHC Plan and is excluded, the LA may need to review the plan with a view to identifying a new placement.
Exclusion from maintained schools, academies and pupil referral units in England
- It might be helpful to have a link to the Exclusion Guidance here, as Head Teachers must have regard to this too.
- Added a section under the post called useful Links and added the guidance.
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