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Exclusions of pupils with a special educational needs and/or a disability
Exclusions of pupils with a special educational need and/or a disability.
Below is a summary of the main points available on teachernet in relation to the exclusion of pupils with SEN and/or a disability. To see the full advice, click HERE
Pupils with Special Educational Needs (SEN)
Statutory guidance on identifying, assessing and making provision for pupils with SEN, including those with behavioural, social and emotional needs, is given in the Special Educational Needs Code of Practice. Schools must have regard to this guidance. School governing bodies have a statutory duty to do their best to ensure that the necessary provision is made for any pupil who has SEN. Early identification and intervention, accurate assessment and the arrangement of appropriate provision to meet pupils' SEN usually leads to better outcomes.
Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements. They should also make every effort to avoid excluding pupils who are being supported at School Action or School Action Plus under the Special Educational Needs Code of Practice, including those at School Action Plus who are being assessed for a statement.
In most cases, the head teacher/teacher in charge will be aware that the school is having difficulty managing a pupil's behaviour well before the situation has escalated. Schools should try every practicable means to maintain the pupil in school, including seeking LA and other professional advice and support at School Action Plus or, where appropriate, asking the LA to consider carrying out a statutory assessment. For a pupil with a statement, the school should liaise with their LA about initiating an interim review of the pupil's statement.
It is not appropriate to send home children with SEN, with conditions such as ADHD and autism, purely for that reason and schools should arrange a statutory annual or interim/emergency review if they feel they are no longer able to meet a child's needs. The child should not be sent home in anticipation of such a review.
Where a child is permanently excluded, the head teacher/teacher in charge should use the period between his or her initial decision and the meeting of the governing body to work with the LA to see whether more support can be made available or whether the statement can be changed to name a new school. If either of these options is possible, the head teacher/teacher in charge should normally withdraw the exclusion.
It is extremely important that parents of children with SEN who are excluded from school receive advice on the options available for their child's future education. Schools might usefully advise parents that advice and information on SEN is available through the local SEN Parent Partnership. The Parent Partnership should also be able to provide details of voluntary agencies that offer support to parents, including those that can offer advice concerning exclusions.
Permanently excluded pupils with statements of SEN must receive suitable full-time provision like any other excluded pupils. In some cases, a pupil's statement will specify fewer or more teaching hours than required for their key stage, for example because of an associated medical condition. In such cases, LAs should provide the number of hours set out in the statement.
Pupils with a Disability
Schools/ PRUs have a legal duty under the Disability Discrimination Act 1995 (DDA) not to discriminate against disabled pupils by excluding them from school because of behaviour related to their disability. This applies to both permanent and fixed period exclusions. A disabled person is defined as someone who has a physical or mental impairment which has a substantial adverse effect on his or her ability to carry out normal day to day activities. The effect must be:
The definition includes people with sensory impairments, and also hidden impairments (for example, mental illness or mental health problems, learning difficulties, dyslexia and conditions such as diabetes or epilepsy). People who have had a disability as defined by the DDA in the past continue to be protected from discrimination even if they no longer have the disability. People with severe disfigurements are also covered. The definition of disability is not the same as the definition of special educational needs but there is likely to be a large overlap between those pupils who have SEN and those who are disabled.
Discrimination occurs where a person treats a disabled pupil less favourably than other pupils for a reason which relates to their disability, without justification. It also occurs when a school fails to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage compared to their non-disabled peers. What constitutes a reasonable step will depend on the circumstances of each case. It must also be remembered that the reasonable adjustments duty requires schools/PRUs to think ahead, anticipate the barriers that disabled pupils might face and remove or minimise them before a disabled pupil is placed at a substantial disadvantage. The Disability Rights Commission (DRC, a precursor to the Equality and Human Rights Commission (EHRC)) has published a Code of Practice which explains and illustrates schools'/PRUs' duties to disabled pupils, including that in relation to exclusions. To see the full code, click HERE
It is unlawful to exclude a disabled pupil for a reason related to their disability without justification. When considering whether or not it is appropriate to exclude a pupil who may be disabled within the meaning of the Disability Discrimination Act 1995, head teachers/teachers in charge should consider four questions:
1. Is the pupil disabled? The Act covers pupils whose physical or mental impairment has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities.
2. Is the exclusion for a reason related to the pupil's disability? If there is a connection between the pupil's disability and the behaviour resulting in the exclusion, this may be considered less favourable treatment for a reason related to the pupil's disability.
3. Would another pupil, to whom the reason did not apply, be excluded? A comparison has to be made between the disabled child who has been excluded for a reason allegedly relating to their disability and a child who is not disabled but has behaved in the same way. In other words, if the reason for the exclusion is the pupil's disability-related behaviour, then it is necessary to consider whether or not another pupil without that disability who behaved in that way would be excluded. The comparison should be with a pupil who is not disabled and who has behaved in the same way.
4. Can the exclusion be justified? An exclusion of a disabled pupil for a reason related to their disability can only be justified if there is a 'material' and 'substantial' reason for it. Maintaining order and discipline in the school may be a material and substantial reason. However, it may not be possible to justify the less favourable treatment if there are reasonable adjustments that should have been made but were not. Reasonable adjustments could include developing strategies to prevent or manage the pupil's behaviour; drawing on external advice on effective approaches with a pupil and staff training. If reasonable steps could have been taken but were not, it may not be possible to justify the pupil's exclusion. If reasonable steps were taken, but the incident still happened, then the school is likely to be able to justify the exclusion.
The Disability Equality Duty, introduced by the Disability Discrimination Act 2005, requires schools to have due regard to the need to promote equality of opportunity for disabled people when they are carrying out their functions. Schools need to monitor the exclusion of disabled pupils and consider how to address any systematic disadvantage disabled pupils may face. Schools must show, in their disability equality scheme, what steps they are taking to address any such disadvantage. Schools are required to involve disabled people (staff, pupils, parents, carers and others) in developing their scheme. Disabled pupils themselves are well-placed to provide insights into effective ways of addressing problems that may give rise to exclusions.
To view further advice on Improving behaviour and attendance: guidance on exclusion from schools and Pupil Referral Units, click HERE