Children with special educational needs and disabilities (SEND) are disproportionately likely to be excluded from school; they account for almost two-thirds of all exclusions. What are your rights?
School exclusions – the law
The law on exclusions can be confusing, especially if the child or young person has SEND. We summarise here relevant law and guidance applicable to maintained schools, although be warned that independent schools are not bound in the same way (although they still are liable for any discrimination).
Who can exclude a child?
A decision to exclude a pupil must always be taken by the headteacher of a school/the principal of an academy, whether the exclusion is permanent or only for a fixed-term (ie a specified number of days). Any series of fixed-term exclusions must not exceed 45 days for the school year as a whole.
An ‘informal’ exclusion, whereby, for example, a child is sent home early by a teacher in response to poor behaviour, is unlawful, even where the parents/guardians of a child may have agreed to this happening.
When a headteacher/principal makes a decision to exclude a child, they must inform the parents of the child of:
- The period of the exclusion
- The reasons for it
- The parental right to make representations about the exclusion to the school’s governing body
- How those representations should be made.
In the case of permanent exclusions, fixed term exclusions of more than five days, and exclusions which would result in a pupil missing a public examination or National Curriculum test, the headteacher/principal must also notify the governing body.
The case for reinstating an excluded pupil
Within 15 days of receiving notice of the exclusion, the governing body must consider the reinstatement of the pupil if:
- The exclusion is permanent
- It is a fixed period exclusion which would bring the pupil's total number of school days of exclusion to more than 15 in a term
- It would result in a pupil missing a public examination or National Curriculum test.
When making this decision, the governing body must arrange a meeting to discuss the exclusion, with the parents, the headteacher/principal and a representative from the Local Authority (LA), at a convenient time for all parties. The governing body must then either uphold the exclusion or direct that the pupil be reinstated immediately/on a particular date.
Challenging a decision to exclude a child
There are two main courses of action that parents can take to challenge a decision to exclude a pupil. Firstly, parents can request that the LA/academy set up an Independent Review Panel (IRP) to review the decision. Parents must lodge their review application within 15 school days of receiving the decision. The LA must then arrange a mutually convenient date for the all parties to meet before a three to five person panel, which must include members with experience of being a school governor or headteacher.
Alternatively, if parents consider their child to have experienced discrimination, they may make a claim to the First-tier Tribunal [Special Educational Needs & Disability] (for disability discrimination) or a County Court (for other forms of discrimination).
When is an exclusion unlawful?
Department of Education guidance states that it is unlawful to exclude or increase the severity of an exclusion for a non-disciplinary reason and the following examples are unlawful grounds for exclusion:
- The pupil has additional needs or a disability that the school feels it is unable to meet
- Based upon the pupil’s academic attainment/ability
- The action of a pupil’s parents
- The failure of a pupil to meet specific conditions before they are reinstated
This is not an exhaustive list and any decision to exclude a pupil must also not discriminate against the child when making the decision.
Many parents do not realise that the IRP is only required to apply the civil standard of proof - ie it is more likely than not that a fact is true or ‘on the balance of probabilities’, rather than the criminal standard of proof of ‘beyond reasonable doubt’.
An IRP may also consider issues of discrimination when reaching its decision. The IRP’s decision can be taken to Judicial Review (albeit on limited grounds).
Bringing in an SEN expert
In terms of evidence, during the course of review proceedings, the school may not raise new reasons for the exclusion having taken place. However, new evidence may be introduced, including the views of an SEN expert where the pupil has/may have SEN. Parents can request that an SEN expert be present, and the LA must cover the costs for them attending the meeting.
With thanks to Joshua Garrod, a SEN specialist, and Douglas Silas, director at Douglas Silas Solicitors.