Please help! Governors hearing on Tuesday

[Nelly44]

I'm so so annoyed with my sons school. He's had 4 exclusions and 1 suspension due to hitting. School are purely focusing on his behaviour and not the anxiety he faces daily.

We found out 2 weeks ago he has been on the SEN register for a year and they've not followed the SEMH guidance in anyway..

We've raised a formal complaint and it's going to governors hearing. I've received school's response to my complaint today and no surprise I'm painted as being an overly emotional parent.. and completely avoided the fact I'm upset because they're dismissing my sons emotional state.

I'm not really sure what my question is.. but has anyone else found themselves in a position like this?.. x

Sorry to hear about this. And not exactly, but have had poor experiences of governors/an academy chain closing ranks rather than being prepared to engage in an open-minded exploration as to what has occurred and what might be needed. Unfortunately there does seem to be a bit of a reflex to deflect.

Is DC likely to be covered by equality legislation (doesn't need to be a diagnosis)?

You're disabled under the Equality Act 2010 if you have a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities.

Did you challenge any of the exclusions? Although the school is likely to argue the exclusions were reasonable due to health and safety.

The school must make their best endeavours to meet a pupil’s SEN, but the only way to force specific provision is via an EHCP. Have you requested an EHCNA?

I think things will depend on

How old is your son
Is there diagnosed or suspected underlying condition
Have they deployed support strategies

e.g A NT anxious 14yo has no/limited excuse for hitting even if they are overwhelmed, whereas a suspected ASD 6 yo probably does.

I'd go in with

• these are his SEN
• this is the support he has / hasn't has
• shouldn't be excluding due to unsupported SEN
• should in fact be supporting an EHCP application

If he has disability or a long term condition (see definition above) which gives rise to these behaviours at school (whatever age he is) there is helpful statute and case law.

Questions as to whether discrimination arising from a disability and/or failure to make reasonable adjustment could arise in the event that DC is a) covered by EA2010, and, either b) the provisions of EA2010 have not been applied in the decision making process or c) the behaviour being punished arises from a disability.

Even when a pupil is covered by the Equality Act the school is likely to be able to successful argue there was a legitimate, reasonable reason to exclude such as health and safety.

That would intend entirely on the nature of the incident, and whether other solutions were available that would also have achieved that aim.

In other words, whilst that may constitute a reasonable aim, as the first part of the legal test, it may not constitute the second, a proportionate means.

OP said the exclusions/suspensions were for hitting therefore the school is highly likely to be able to successfully argue health and safety and any disability discrimination case is likely to be unsuccessful.

@FloatingBean: Have you seen the case law? Judge Rowley 2018

If DC is liked to be covered by the provisions of EA2010, OP will be able to get initial advice on equality legislation aspects (as opposed to SEN regulations) from the EASS helpline in the first instance.

I have, have you you seen IPSEA’s page here? It states “However, the school may be able to argue that there was a legitimate reason for the exclusion such as health and safety.” Violence, whatever the cause, does pose a health and safety risk therefore schools are likely to, successfully, rely on this.

I am not saying OP’s DC is not disabled, nor that the school don’t have a duty to make reasonable adjustments.

I know IPSEA are an absolutely fantastic resource for SEND families. The EASS are the publicly funded body charged with the provision of advice on equality and human rights issues.

Typically it is not the legitimate aim that organisations fail to satisfy, it is the proportionate means. They need to demonstrate both.

We will have to agree to disagree. Nowhere have I said OP’s DC isn’t disabled or the school don’t have a duty to make reasonable adjustments or make their best endeavours to meet a pupil’s SEN. IPSEA also disagree with you so you best let them know you think they are wrong too.

How many SENDIST disability discrimination cases have you been involved in? Were they upheld purely on the basis an exclusion where the school argued health and safety was unlawful? Because that is highly, highly unusual of SENDIST.

Ask what they have done before and after each exclusion to prevent it happening again. What led up to the exclusions and actions they took to de-escalate. What professional advice have they taken to but in appropriate support, have they acted on that advice. If they have been on SEN register what have the reviews shown is working and not working. What are they planning to do going forward to prevent exclusions.

@FloatingBean - please let's not fall out over this? I haven't said that you have said that, nor have IPSEA disagreed with me. They are silent on the second part of the legal test in the link you sent.

The relevant non-statutory guidance is here

The key section is:

What is a ‘proportionate means of achieving a legitimate aim’? To be legitimate the aim of the provision, criterion or practice must be legal and
non-discriminatory and represent a real objective consideration. In the context of school education, examples of legitimate aims might include:

• Maintaining academic and other standards.
• Ensuring the health and safety and welfare of pupils.

Even if the aim is legitimate, the means of achieving it must be proportionate. Proportionate means ‘appropriate and necessary’, but ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim...The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the justification must be. In a case involving disability, if you have not complied with your duty to make relevant reasonable adjustments it will be difficult for you to show that the treatment was proportionate.

I 100% agree with you that what happens at a Fist Tier Tribunal is another question altogether. Nonetheless, schools need to comply with EA2010 and that is a reasonable question to raise with the Governing Body if DC is likely to be covered by the Act.

As I said, we will have to disagree.

Schools can rely on health and safety even for the second part of the test. If IPSEA felt the second part of the test couldn’t be met by the health and safety argument they wouldn’t have written what they have or would have clarified further. It also needs to be considered the guidance document you linked to is non-statutory. If FTT were constantly getting it wrong there would be far more UTT cases on the matter, and there isn’t.

I have not said anything about “falling out” or that the school don’t need to comply with the Equality Act. None of this back and forth is helping the OP so I won’t reply again.

Thanks all.
DS is 6, doesn't act in this aggressive way other than at school so it's really hard ro get my head around.

I think your comments will be right that they'll argue safety grounds. But there's no interest in prevention.. such a Shame

My DD was like this as with sensory and social issues she was completely overwhelmed at school ( she was actually lovely except when having a meltdown, but lashed out then). I was told that there was no point challenging the suspensions as they were for violence, but she's a lot better now school have put in some adjustments, most of which were actually fairly cheap and easy to do. It's not perfect, and she seems to be falling in an awkward crack where she needs a small amount of extra support but not a 1-2-1. A class TA would be fine, if only they still had them.

As a pp said, you need to ask the school what they have done differently after the last exclusions. What external advice have they sought? What assessments have they done? What referrals have they made? Have they done any ABC analysis - antecedents, behaviour, consequences. I've what led up to the incident, what happened during the incident - including how they responded - and what happened afterwards? They should be looking at what the triggers are and how they can de-escalate the situation to prevent it happening again. Remind the governors that this behaviour is part of his Sen difficulties and that school should be putting appropriate adjustments in place to manage it. If they cannot, they must escalate to the LA as a matter of urgency. So either they have not done this on previous occasions, or what they have put in place has not worked?
Does he have an ehcp? If yes, are they following it? If not, have they applied for one - and have they applied for additional funding in the interim of needed?
Also remember that if you do not think the governors have done their job properly you may be able to take it to Independent review (depending on the type of panel)