Permanent Exclusion with Statement of Educational Needs

[Hawthorn1000]

My 8 year old son has just been excluded due to behaviour issues. The statement he has was for this poor behaviour and he was on maximum support from the local authority. The exclusion decision was made by the head and the lad was given a 3.5 day exclusion, followed without warning by a permanent exclusion without him having returned to school. Just wondered if anyone had experience of this as it seems to be just a little knee jerk and will do nothing for the boy who has attachment and anger issues dating back from before he was adopted. We have always been very support of the school and feel let down that they have just dropped him without even an attempt at a planned move.

Thanks prh47bridge - thought as much

What a damn waste of time and money that could be spent on the kids!

Does the money to represent themselves, pay for SEN experts and legal representation come from the school budget or DCC do you know?

Hawthorn

SEN assessments and monitoring are paid for by the LA. If the school needs legal representation they would normally have to fund that themselves.

Thank you for your lovely reply.
So sorry you lost the appeal but glad you are fighting so well, and bravely, for your son.

Most schools do not have legal representation though. The school (the Governors and Head) represent themselves. If you declare you have legal representation, they will have it and vice versa. I did rather think the Govs would support the Head. Most Govs do, I am afraid, even if it is patently wrong. They will not have had much training either. Most primary Govs never PE. They know they will not get your lad back at school, so why go against the Head? It will make life easier for them so money well spent, they think! Sorry to be blunt - but I have dealt with this time and time again down the years!

I would work closely now with your home Borough. If they are easier to deal with then you may get a better outcome all round. Stay positive. Any new school will want to be sure the provisions in the statement are doable. You have found yourself in a very difficult position with two authorities and Derbys will not be shedding any tears over an out of County child - it is just how it is. I think finding the best way forward is now a priority. I cannot see that Derbys will care at all I'm afraid.

The school can only back out of this by withdrawing the exclusion.

Why did it cost so much to go to the governors' review meeting? Did you manage to contact anyone like the School Exclusions Project? I would be wary of using the barrister parent unless he has specific expertise in Education Law, which is fairly rare. Someone who sits on exclusion panels was telling me about a case where the parents had a lawyer who specialised in another area of the law who seriously messed up the hearing and took totally the wrong approach.

The PRU has to be capable of delivering all the support set out in your son's statement, including (if the statement says so) the full national curriculum. Can it do that? If not, I would object to it.

I would not get a barrister involved either. It will ramp up their opposition and they will have access to educational law specialists, who they will use. There will be no winners! Except the lawyers!

The PRU will be a holding place until a permanent school can be found. OP should now talk to the home LA about meeting needs and being realistic about school provision in that expertise in behaviour management is a very high priority. The statement needs to be amended so there is a chance to start again. Something positive could come out of this and I would be inclined to spend less time on the past.

Thanks for comments

The barrister is a friend who has offered to put us in touch with someone he knows (a solicitor) with more knowledge in the educational field so take both the points.

And I agree this needs to be about the future which is where 90% of our focus is. There is a real chance of getting him into a school that actually knows how to do this properly and to link this to the therapy which puts us back onto the path we thought we were on in December

However, the 10% is important for the getting the lads name 'cleared' but also I feel that there is a principle to be pursued here. It should not be down to the kind assistance from people o n the internet to help mitigate the impacts of a thoughtless head teachers actions. The intent of the DfE guidelines I think are clear - be thoughtful about how you deal with these kids. Unfortunately it seems the chasm between what the guidelines say and the interpretation that a head can take are massive. I think the guidelines should have a protocol that expressly forbids a PE without involvement of the SEN team. A fixed term exclusion to allow a breathing space would be the way to go. There is a lot of detail involved in this but the current method just aint right.

If you use a solicitor / barrister at the IRP then you will need to declare it before hand and you will then find that the number of people in the room doubles as everybody will feel it necessary to utilise a lawyer. That is where the Chair of the IRP will have a fun time trying to stop the lawyers turning the meeting into a court case. I apologise to solicitors but that is what in practice happens.
What might be appropriate is for a tame solicitor / barrister to consider what you put down in the written statement, because they can frequently make the words sound better, even if you are delivering them at the hearing!

Thanks Admission - not even begun to look at the detail and process for the IRP so that's handy, I will be reading up on it.

This is like doing an Open University course! You lot of lecturers give me my classes to listen to and then I have to go away and do the research!

I hope I qualify at the end.....................

As I understand the law, it is the sole responsibility of the Head to exclude. I do think they should consult before they do PE, especially with a child with special needs, but I have rarely seen this. I used to receive phone calls demanding more money from the LA, or they would exclude. Negotiations would take place but that is no way to run a service for SEN children by threatening PE. They knew the children would be difficult to place elsewhere.

The Head should be well versed in the needs your child has and how the school should be supporting him. Unfortunately some Heads do not do what they are supposed to do and, as far as I can see, the rogue ones get away with it. Governors hate going against the Head because it stirs up problems regarding effective working in the future.

Do get advice from anyone who can help. If you can clarify your thoughts from 28 pages down to a succinct presentation where every point hits home, you will find that is a more successful approach. The IRP are not working with the Head so you will have a better chance with them regarding their expertise and fairness. Try and find the main aspects of your case that are likely to win your argument. A list of who didn't do what and minor points will be a bit tedious. Often parents who come across as over-prepared do not do as well. People who can advocate for their children in an efficient but factual way do best with a degree of passion thrown in! Do keep us up to date with progress.

I do think the IRP is a time when it is useful to have at least some involvement from someone with legal knowledge, because they have to operate on the basis of judicial review principles and the information on that in the exclusions guidance is woefully inadequate. I don't have any connections with the School Exclusions Project people, but I have heard that they can be very good on those issues.

Bojo

Yes, I do some presentations in working life so know drowning people in detail doesn't usually get the results.

I talked through three main areas which I did from memory - the 28 page document was mainly analysis of the data that the school supplied which actually showed the lads behaviour was improving! I even slowed down a bit at complicated bits where the two really inexperienced governors were glazing over.

As to passion, a mixture of anger and sadness for the lad had me falter at least once....

Will look for as much advice I can get for the IRP,,,,,,,,,,,,

I am really sorry you had two inexperienced Governors. This is sadly wrong too! They probably had no experience of exclusions and had not been trained, so that is very poor. I am sure you can make presentations very well, but I have seen good results from "ordinary" presentations by ordinary folk. It is almost as if some people are anti presentations they see as "slick". I am not trying to be negative, by the way. It can be that over-complication does not help. Do get any advice you can, though.

Yes Bojoro I can see that.

I think I have learned the lesson that a governors appeal is a lottery depending on the experience of the governors but one that is weighted heavily against you!

The chair of the panel shook my hand on the way out when we were on our own and said that my son should be proud of my efforts. It was at that point I realised all was not well as the PE being rescinded would have been evidence enough that I had done a good enough job. The decision seems to have been made in isolation as I was walked to the door! Or just paranoia..........

In any event, that is history.

Just found out today we are going for a visit to the PRU in Tameside. It says something about the nasty approach Derbyshire take in that when talking to the head of the PRU she says that they don't actually take SEN children there as the post adoption team usually handle things following a planned approach after an emergency SEN review. DCC seem to have their own issues......

Got a school in discussion so moving forward for the lad finally!

Could I ask a question which I know has been discussed in some detail now -

The DfE publish guidelines which suggest how SEN children should be treated in terms of permanent exclusion

These suggest that good practice is via an emergency review

But the head retains the right to PE (it is the heads decision)

But the education industry knows that heads 'play' with this balance of this power against pushing for additional resource

And if the head wants, they will PE and the likelihood is that the governors will support the head

And then there is the IPR which seems pretty toothless but at bet it can say you can send your children back to a school that doesn't want him/her

Can people tell me if what I have written above which is what I have taken from various posts is about right and, if so, has this been challenged anywhere? Has the DfE looked into it? Has it been raised in parliament? Does it pop up anywhere in Ofsted reports?

Hawthorn

I think some pretty serious concerns were raised around the time the law was changed to make it more difficult to overturn an exclusion but were generally ignored. The trouble is that it was popular politically, particularly with Mail/Express/Sun/Telegraph readers to whom this whole issue was painted in very simplistic terms. There was a major lobby around dreadful lefties making it difficult for saintly heads to keep badly behaved children out of their schools, with a substantial portion of idiots chiming in with nonsense about how they didn't have all this autism/ADHD/dyslexia nonsense when they were lads.

There are some countries which don't use exclusion at all, or keep it to an absolute minimum, and there are no noticeable adverse effects in terms of attainment, prospects as adults etc. We could really learn from those countries rather than going for knee-jerk exclusions as much as we do.

In this country it is exactly as Mega says. There were so many stories (in the right-wing press) of schools having to accept children back that schools wanted to PE, the law was changed to give Heads more power and autonomy. There has been a huge drive to reduce exclusions though; not always successful of course.

It has also been very difficult for LAs to manage school placements. Budget cuts and a lack of outreach from special schools has not helped. When I was at work we tried really hard to keep children in mainstream school, if we could. Parents usually wanted this and were very reluctant to look at special schools, even when we reviewed statements. We tried our hardest to keep children from being PE but even then, access to Mental Health specialists (and anyone in the NHS frankly) was extremely difficult. Our own Educational Psychologists were more accessible and helped a great deal to talk to parents (carers) and schools and if they recommended a certain provision for a child, we tried very hard to meet it. However, in mainstream, provision is only as good as the staff in that school and their desire to help. Some schools deeply resented being named on statements.

If the child's behaviour escalated beyond that which mainstream schools could manage, we occasionally managed to find a place in a special school fairly quickly. There is a limit to the nurture groups, one to one TA time and other strategies that can be adopted in mainstream school and their staffing levels are not sufficiently generous to deal with extremes of behaviour. (Hence the reluctance to take some children). All agreed strategies in mainsteam should be carried out and evaluated, however, which in your case, OP, has not happened. Please be very realistic when you look at another school and try to judge if they really deliver what is required.

The reason schools had to accept children back was because they excluded the children unfairly. It seems to make little difference to many Heads and Governors that they have to follow the procedures. They usually know a child who is not wanted will not want to come back. They also know lots of parents give up and do not appeal. The Academy programme has not helped either. It just confuses parents.

Sad tales indeed.

I have a great deal of sympathy with the pressures that the schools (and whole education system) is under with financial constraints imposed and had offered to help fight the corner (and indeed it was that intervention that helped get Tameside MBC to provide extra money although to be fair to them it didn't need much pressure as they could see the situation needed it).

Just too much trouble I think to hold on and do it right or as you say the lad might have stayed at the school a bit longer.

Just back from the Elmbridge school which is the TMBC PRU type of place. Really switched on sounding people in what looked like a well organised unit. As mentioned before they just don't get SEN kids there as in the borough they are managed individually outside of the PRU set up - DCC could take a leaf out of their book!

Off to Scotland hill walking for a break and will respond to the DCC letter inviting me to IRP with vigour..............

Lad starts at the school next week so the first step in the right direction while we nail down a competent long term school for him. Feel almost happy again!

The dfe need to change the guidance so that the IRP can have more powe to reinstate.. it is something that is raised with dfe a lot but no changes since 2012 ( apart from the removed 2015 guidance) Ofsted also will challenge schools as to why they haven't perm ex a pupil so they aren't fussed!

Anyway, as the governors have upheld the exclusion the only way to get it changed (and it won't remove the exclusion completely but will reflect the outcome of irp on system) is to go to the irp.
Make sure a SEN expert is there -they will raise the point the school should have done an early annual review of ehcp or looked at alternatives to perm ex!
The irp will either uphold the exclusion, recommend the governors reconsider (they can still stick with their first decision) or quash the exclusion and direct the governors to reconsider. If the governors reinstate the pupil can return back asap. If they stick to their original decision and do not reinstate they will be fined by the LA.

When I was working we tried to use our PRU for children in danger of being permanently excluded. This became more and more difficult as schools started to PE more and more. We were also able to provide part-time nurture groups which had quite a lot of success as they were for younger children and play based. The difficulty is that as more and more money is devolved to schools, the schools are responsible for provision for these children and getting them to a specialist centre becomes problematic. I do hope your PRU is a step in the right direction. It would be excellent to have specialist staff who are committed to him and his needs.

The changes from the original independent panel to the current independent review panel were the brain-child of Mr Gove. He ignored the advice of practically every organisation connected with education who said leave well alone, it works and went with what we have now.

I had at that time the opportunity to talk with him about it and nice guy though he was, I might as well have been talking to a brick wall.

Does an IRP work? Yes it does in offering a clear independent review of the exclusion which can lead to either the IRP confirming the exclusion, recommend that the governors panel review again the decision they made or quashing the decision made by the GB and direct that the governors reviewing the decision again. That does not stop the governors panel just nodding at the findings and then just confirming the decision again. It will potentially cost the school £4K but actually that is often considered to be a small price to pay.

This is where it starts to get interesting because there really have not been any court cases, where legal precedents can be set, which have involved a quashed case recommendation being ignored by the governing body panel and just reconfirm the decision to PE. However what I have seen is the opinion of a couple of the legal departments of LAs. In a quashed case, there are clearly major identified issues with the decision being flawed when considered in the light of the principles applicable on an application for judicial review. That means that the IRP panel thinks that if it went to Tribunal that the school would lose. So any decision by the GB to ignore the IRP decision and confirm the PE would be taken against the best legal advice from the LA. If it happened then the LA would then not be prepared to support the school in any subsequent Tribunal case. That would be a massive problem for the school as the cost of a Tribunal case can be very high and the school will simply not have the money to do it themselves and have dropped the financial protection and legal advice of the LA.

The situation is different for Academies as they will in theory hold insurance for such situations but I suspect the same situation may well apply, if you go against the IRP quashing decision you are being unreasonable and irrational and therefore we will not back you.

So whilst the IRP may not have the formal "teeth" that the original independent panel had, school GBs should be very, very careful about what the consequences may be of any decision they may make.

The dfe need to change the guidance so that the IRP can have more power to reinstate

Giving the IRP more power wouldn't be a simple matter of changing guidance. It would need a change to the law. The Education Act 2011 amended the Education Act 2002 to limit the powers of the IRP. Under that Act an IRP can only uphold the decision, recommend that the governors reconsider or quash the decision and direct the governors to reconsider. The IRP cannot direct the school to withdraw the PE.

This change was in the Conservative manifesto for the 2010 election where they said, "We believe heads are best placed to improve behaviour, which is why we will stop them being overruled by bureaucrats on exclusions". I suspect this was driven by publicity in the press covering cases where IRPs had overruled exclusions apparently unreasonably.

I don't doubt that some IRPs overturned exclusions that should have been upheld, just as some upheld exclusions that should have been overturned. However, I think the system largely worked well and I agree with Admission that the change has not improved matters.

I also agree with Admission that any governing body that chooses to reconfirm a permanent exclusion in the face of a decision by the IPR to quash the decision is taking a big risk. The first judicial review under the new system took place in 2014. The judge in that case was critical of the legislation and the DfE guidance on a number of grounds. He also said that, if the IRP recommended that the governors reconsider it would "be a bold step for the governing body to fail to follow that recommendation". One might infer from this that it would be an even bolder step for a governing body to reaffirm its original decision if it is quashed by the IRP but the judge did not spell that out.

Sadly, the only way the situation will be further clarified is if parents, faced with a school reaffirming its original decision, take the matter to judicial review. However, I agree with Admission that governing bodies need to be extremely careful about the consequences of their decision when considering whether to defy the IRP.

The reason this has not been challenged properly through the courts is almost certainly that legal aid is no longer available - it's a big financial risk for parents to take.

Legal aid is still available for judicial review. Parents are eligible if they have less than £8,000 disposable capital and are on certain benefits or have gross monthly income of less than £2,657 (which is equivalent to £31,884 per annum) and disposable monthly income of less than £733. Note that if the parent has a partner their income is included in the calculations.

Thanks all for comments - I do like the idea of ramping things up through the system, certainly wont be giving up if the IRP goes against us.

One of the guys out walking in Scotland has a contact with a major paper and we talked through how best to get them interested.

From what has been posted before it seems it has been in the press before but a couple of questions -

Do you think there is mileage in putting pressure on the school in this way to at least persuade them to think twice in future?

Do you think that this has been overdone already in the press (the specific overriding of the emergency SEN review process by the head without good reason ie the lad's behaviour had improved rather than deteriorated)? Has anyone got any links to these articles - I had a look on Google but far too many returns.......?

Just in passing, one thing that I noticed while trying to obtain some assistance in organisations such as Coram was that they all seemed to very oversubscribed with requests for help which suggests that there is an awful lot of this going on!

Hawthorn