First Tier Tribunal - SEN Exclusion appeal

[Hawthorn1000]

Hi

Posted previously about permanent exclusion of child with SEN.

Happily now at new school tomorrow (!) but not happy at Governors Appeal and Independent Review Panel neither of which I thought were conducted properly.

Want to go to First Tier Tribunal to remove the PE and also to challenge the lack of humanity shown.

Has anyone been down the FTT route to challenge an SEN exclusion and could they share some information about the process and best approach?

Any help appreciated

H

You may be able to take a disability discrimination claim, but check the time limits. There's some information on IPSEA's website - www.ipsea.org.uk/what-you-need-to-know/disability-discrimination

Ceto

Thanks for that - yes aware of the timescales and have had a chat with one of the advisers at IPSEA recently - they were very good.

My interest was in how real life people had got on at a FTT and what hints they could give but the stuff you read online (including the DfE own report in 2014 into use of IRP and FTT appeals) suggests that there are very few of them. Clearly this is down to the changes in legislation which meant that these appeal routes had very little power to do very much.

This is all very worrying in my view because nobody is bothering to challenge the decisions being made by head teachers and governors even though these decisions may be patently unfair or unlawful.

One thing that the discussion with IPSEA enlightened me about was the issue my lad may have with a disability discrimination claim. I had never quite realised why the school used the term 'assault' as a reason for his exclusion when previously his tantrums at school (he has behavioural issues linked to his attachment problems) which sometimes resulted in him lashing out when he became angry were never given this description. Describing his actions as assault and violence to others means that this is not protected under the Equality Act 2010 which means that the school did not have to take the Act into account. A really odd Catch 22 situation in that when you adopt a child it is not unusual for that child to have attachment issues to a greater or lesser degree which the professionals in the system know. Yet if these behaviours include tantrums and anger which will involve other pupils and people at school then the system removes the protection for that child!

Now a toss up to continue with FTT using some of the issues around process and support or go to a Judicial Review.

Anyone without any experience would be pleased to hear thoughts?

Hawthorn

Years have come passed since my post above but someone commented on it and I thought I should clarify something in case anyone is misled by it.
the item is around The Equality Act which was amended to remove the Catch 22 situation around ‘assault’ by a child. This is no longer a bar to a child obtaining protection under the Act under the circumstances I described. Indeed, happily this change took place in the middle of the FTT action and without this defence the school lost the case and were found to have acted unlawfully in the permanent exclusion of my son.

The legal position is that at the time of the incident, you can't apply changes in the law retrospectively.

Thanks Ageratum - I don't think my wording was particularly accurate not least as I was speaking writing from memory of the event from 6 years ago.

In this case we lost the FTT on the basis of the Catch 22 that if a person had a 'tendency to physical or sexual abuse of other persons' then they lost the protection of the Equality Act..

We appealed the decision to the Upper Tribunal (eventually) on the basis of how the hearing was handled and one or two other items around how the school had dealt with the reasonable adjustments.

At this time the handling of cases using the Catch 22 exclusion in the Act and the Upper Tribunal accepted the Appeal and indeed referenced this review and the case was passed back to the original Tribunal (which I challenged but finally accepted).

By the time of the hearing the C&C v Governing Body 2018 UKUT (AAC) had been decided by the Upper Tribunal with the outcome that the application of the exception around assault had not been interpreted in the way that the was intended when the Act was drafted and it should not apply to children such as my son.

With that in mind the FTT found in favour of my son as I mentioned.

The Act was not then of course 'amended' but the interpretation of the relevant exception was held to be inappropriate.

I believe that there are still discussions around all of this but for a school to try to use this exception then they would have to jump some very high hurdles in terms of what they had done to support the child and what actions the child had actually done.

One incident that the school provided as evidence of his tendency to physical abuse of to others where he had pushed a girl and she bumped against a fence The girl didn't complain (and apparently had pushed him before) and no complaint was made by the girls parents. Two or three years later, although now at different schools my son and the same girl ended up dating each other which suggests that the pushing was the normal courting activity of young children who like each other - I doubt this sort of scenario would get far as a defence by a school nowadays but it is extremely sad that it was used as a method to circumvent the Equality Act protection.

Just as a final note, my son never went back to the school in question but we as a family have been extremely supportive of other schools he has attended including the imposition of any penalties for any poor behaviour. We are not blind to the need for order and discipline in the school place but it has to be humane and reasonable.

But case law operates on the basis that the law as found by the courts always has been the law - i.e. it is not a change in the law, just in the way it has been interpreted. So in the case law in question, C & C v Governing Body of a School, the First-tier Tribunal had acted on the basis of the Equality Act 2010 (Disability) Regulations 2010 (“the Regulations”) which said that for the purposes of the Act “a tendency to physical abuse” of other persons is not to be treated as amounting to an “impairment”, and therefore would not be protected by disability discrimination legislation. The Upper Tribunal found that the regulation was unlawful and therefore of no effect, and the child's suspension was set aside - i.e. the finding was that that regulation never had been valid, and wasn't valid at the time the school made the decision to suspend.

So, in OP's case, that decision having come out whilst her case was ongoing, the FTT was bound by it and had to hold that it applied at the time of her son's exclusion.

After my son was permanently excluded, we focused on getting him into his new school and improving his life. His old school was a lost cause and will be until the disgrace for a human being who occupies the HT role retires (I will never forgive the ways in which that woman behaved towards my son and family). We decided not to bother with the SEND Tribunal because really what is the point? It takes significant time, cost and effort and at best you get an order requiring a half arsed apology at the end of it. They have no power to make real change or award damages for unlawful conduct. The juice isn't worth the squeeze, it's set up that way on purpose, and that's why schools get away with it.

Thanks Ageratum

In conclusion from me, the point of this follow up post was just to advise that the tendency to physical abuse is not the show stopping defence for the governing body that it once was.

The reality of this specific case was that the school wasnt aware that this defence existed until the LA spent a small fortune employing a specialist barrister to advise on the matter and who attended all the hearings. As they were not aware of this as a defence at the time of the incidents it seems clear that they knew that they were acting unlawfully as when this defence was removed the tribunal found against them.

Itradehorses

I dont't have any criticism of your decision not to pursue the matter - it did indeed take an awful lot of time and effort. I think in our case, once the ball started rolling through the farce of the governors appeal followed up by the incompetence of the Independent Review Panel it just grew legs of its own! Through these early 'tribunals' more and more evidence came to light of manipulation and deceit that just meant it had to go on.
The outcome, as you say, was very limited and our child never returned to the school. In terms of positive outcomes we got the apology (for what it was worth) and the exclusion was removed from his school record and our child was assured that the way he was treated wasn't his fault (something he needed to know as he has attachment issues from his past life and being thrown out of his first school was a serious blow to him). As part of the apology the school had to acknowledge that the actions by the HT were incompatible with his position and he left his post shortly afterwards. In dealing with subsequent LA's the fact that there had been a successful outcome from a FTT seemed to make them more amenable in their dealings with you which is helpful.
I have no idea why schools pursue these courses of action - we follow the Special Needs Jungle forums and the success rates of schools in these cases (and in placements etc) is pitiful and an awful waste of money. We were very supportive of the original school including efforts to get appropriate funding but it does come down to that - have they got the right money to pay the right people and when they dont they end up making knee jerk decisions that have awful consequences for the child involved and everyone around them (including the school).
Best of luck in the future with your child and I hope they do well.

@Hawthorn1000 completely get it and it was worth it for you. Glad it worked out. I feel that the SEND Tribunal should be able to award damages like an employment tribunal. Yes, there would be more claims, yes it might be more expensive for the LAs and Academies, but as it stands there is no incentive for the defendants to compromise or make early admissions. For every case that runs, they probably starve out 100. It would also force schools to change for the better, when refusing to do so becomes a matter of financial risk (and thus a threat to the HTs job).

I agree that in many cases there seems little point in going through the hassle and potential expense of a disability discrimination case, especially if you don't want your child to go back to that school and are not bothered about the exclusion being on their record. However, if you do want reinstatement then it can be a better route than going through the governors and independent review panel.

On the point about exclusions. A better way to have it cancelled is to broker a managed move before the school can complete the steps if has to take to finalise it with the governors. It's what we did with help from the inclusion lead at our LA. To be fair I'd kicked up such a stink and had threatened proceedings on a wide range of issues, so I think the LA had recognised that I was a six figure problem for them. A lot of groundwork had been done though to find the new school and to warm them up because the writing was on the wall.

Itradehorses - yes, that makes sense but we didn't have time as it was an immediate permanent exclusion. My initial request was to postpone the exclusion and go for an emergency review with the objective of getting a new school that could help our child. The HT refused which probably fuelled my desire to get to the bottom of things and to look for 'justice'. Because of his attachment issues it was desirable to keep him at the original school and work with them but the HT had other thoughts and wanted rid. The eventual new school has been good but initial steps by the LA were to try and put him into a PRU - that was an unpleasant experience!

I can imagine. I tried to head that one off at the pass by making clear that a PRU for a Y1 child was an unacceptable outcome as a result of the HT's unlawful and discriminatory behaviour. I suspect that but for our soft landing via the managed move into a school where they were brilliant, I wouldn't have stopped until the HT and her daughter (who had been over-promoted by HT to SENDCO in an act of naked nepotism) had been drummed out of the school with their reputations and careers in tatters.

Thank you for posting this Hawthorne.
I’m currently going through this at the moment and just hope I can get justice for my DC.

Can I please ask how you argued the ‘proportionate means of a legitimate aim’ as I fear this is where I may struggle.

Sunshinexx

Sorry to hear of your issues.

All cases are of course different and my recent post was to clarify the position around the school using the 'tendency to physical abuse' defence which is now much weaker.

In our case, without this defence, the school was onto a hiding because some of their actions were so extreme. Unfortunately, they didn't see it that way (as they weren't looking) and the Governors appeal was an embarrassment as they decided against him despite the evidence being poor.

Where I think you go next, if you haven't done so, is to get the most detailed information you can in terms of incident reports, behaviour management plans and all the other 'proper' evidence about what was and wasn't done by the school. From that there should hopefully start to see where the action was proportionate or not. What we did do was obtain help and advice from the School Exclusion Project which was very much appreciated.

Just to comment on the Independent Review Panel route, should that be followed, in our experience it was almost as embarrassing to participate in as the Governors Appeal. The Panel consisted of people who had very little experience of these panels (as they are so little used now) and so little interest in the actual facts that it was a foregone conclusion where it was going. The way the expert witness was treated was appalling and was the subject of a later complaint.

To directly answer your question though, in one part of our case the school put our child in a situation where there was insufficient supervision because they continued with a planned event despite there being insufficient staff and there was an incident and the exclusion was deemed unlawful.

Hawthorn