Exclusion help

[Adhdparent123]

My y9 child was excluded yesterday for persistent behaviour policy breaches. This is refusing to engage with work for some subjects that he finds difficult, to talking back, swearing so disruptive but not violent or dangerous behaviours. He has a diagnosis of ADHD and oDA traits.

This came with no prior warning, though the school now claims that as they mentioned i6 months ago that eventually his behaviour might lead to this then that was sufficient.

His EHCP was only finalised 7 weeks ago, with an extensive plan of specific learning around behaviour and engagememt and the school have not yet implemented 90% of the support specified in section F.

Despite this the support they have put in place so far has generated small improvement, better engagement with learning and increased adherence to the behaviour policy. In the last 2 weeks I have had several communications from staff to say that positive improvements have been seen. However when I spoke to the head teacher today they are now saying that they see no improvement, they only sent those emails to me to fulfil the part of section F that requested positive feedback to my child, and that though they accept his behaviours are caused by his SEN needs they cannot meet his needs in school because he is too disengaged.

All the guidance I read says schools need to engage with parents of EHCP children early to avoid exclusion wherever possible, and that they need to consider all possible alternatives. Its very clear to me that the school have not done this, and they even admit they are excluding because they cannot meet his needs. They actually said that morally they thought the best thing to do was to exclude him so he can find a more suitable setting..

As my child is in year 9 a lengthy period away from school appealing will mean he cannot choose GCSE options, and the impact of later being forced to pick up any options where there us space in the class will be massive.

I will speak to my child's social worker tomorrow but my question is what can I do when the school is clearly in breach of the guidance but continues down this route anyway?

Blimey, that's awful OP - must be very shocking for you and your child.

Someone will be along with more expertise, I am sure, but some immediate thoughts are that the school's decision-making sounds potentially flawed on three fronts a) lawful basis for a permanent exclusion, b) possible indirect disability discrimination (behaviour arising from a disability), c) failure to follow SEND code of practice.

On a) there are only limited grounds to permanently exclude children from school, and disability and health considerations need to be factored into decision making. I am sure you have already read the DfE guidance, but here's a link just in case: https://assets.publishing.service.gov.uk/media/64ef773513ae1500116e30db/Suspension_and_permanent_exclusion_guidance_september_23.pdf .

Again - I am guessing you are already aware, but you have a right to go to the governing body and require them to consider reinstatement. The guidance above has a detailed flow diagram on p39, plus details the rights of your child's social worker to attend governing body discussions. Beyond that there is also provision to seek an Independent Review Panel hearing to review the decision of the governing body (see chapters 10 and 11). I appreciate your concerns on timescale. Is the school an academy or LA maintained?

On b) this may amount to disability discrimination which would ultimately be determined by a First Tier Tribunal. The expert helpline on equality legislation is https://www.equalityadvisoryservice.com/ and they can talk you through this aspect and also have a variety of standard letters. Worth reflecting with an independent adviser on how to address potential failures in this legal dimension of the school's decision making?

On c) it seems bizarre that the school has chosen to exclude rather than convene an early review of your child's EHCP with all relevant parties should they now feel they can no longer meet your child's needs. On the face of it, it is exceptionally poor form to use exclusion processes to 'manage' mismatches of needs and provision around an EHCP, and muddle-headed and chaotic to do this just after a plan has been finalised, given they will have been fully consulted on its contents. But you know that. I think you need to contact the LA, share your concerns, and seek an early EHCP review.

Have copied sources of independent help below. Have had good experiences with IPSEA and Coram (plus EASS (above) who are the specialists on disability discrimination aspects):

• Coram’s Child Law Advice service can be found through their website
https://childlawadvice.org.uk/information-pages/school-exclusion/ or contacted on 0300 330 5485 from Monday to Friday, 8am – 6pm.
• ACE education run a limited service and can be reached on 0300 0115 142 on
Monday to Wednesday from 10am to 1pm during term time. Information can be
found on the website: http://www.ace-ed.org.uk/.
• Independent Provider of Special Education Advice (known as IPSEA –
www.ipsea.org.uk) is a registered charity. It offers free and independent
information, advice and support to help get the right education for children and
young people with all kinds of special educational needs (SEN) and disabilities

And don't get me started on these self-serving SLTs that shamelessly trample over disabled children's hard won rights to inclusion, ignoring their fundamental (although from their perspective, inconvenient) duty as public servants to behave LAWFULLY, and then try and dress this up as some sort of 'kindness' or 'morality'. We see you. And we will see you in court if necessary.

Academisation has a lot to answer for in creating this new breed of senior public servants who think following the law is something they only have to do when it is convenient to them.

This seems a bit of a coincidence that it follows so shortly issue of the EHCP requiring the school to put in support for your ds.

You might well have grounds for appealing the exclusion as it appears there was not a graduated response to managing the behaviour and that the support given in his EHCP was not actioned.

The big question though is what is in your ds's best interests. Did it say in your exclusion letter what would happen next e.g. managed move or PRU or home tuition. At the very least there should be a phone number for some-one at the LA that you can contact for advice. We were horrified when ds1 was permanently excluded (he was younger but behaviour a lot worse than your ds) but actually it meant that he ended up in a special school that met his needs well (both academically and behaviourally).

This is dreadful. Definitely appeal the permanent exclusion. Include in your representations the non-delivery of the provision in F. The School Exclusion Project can help you.

Alongside this, email the Director of Children’s Services. They are the ones ultimately responsible for the provision detailed, specified and quantified in F. Unfortunately, this is only possible to enforce if detailed, specified and quantified. If the wording is vague or woolly it isn’t enforceable.

In the meantime make sure alternative provision is provided.

Are you appealing the EHCP? If you haven’t already appealed you should do this now. This is important because you do not want the right of appeal to lapse. If you have you should inform SENDIST and request an expedited hearing.

Have you followed up the conversation with the HT with an email to create a paper trail?

Thank you all for your responses.

The next steps are the governors meeting as far as the school is concerned. So far they are sending worksheets home and have said it's the LAs job to sort out interim arrangements, I am pushing for them to arrange something directly as is my son's social worker but they are dragging their feet or suggesting settings that I cannot get him to and raise safeguarding risks regarding getting home.

I do think that longer term another school would be better as they have shown their commitment to my son's education is lacking, but I believe I cannot make an in year application until the exclusion process is concluded.

To add to the mess my son has received messages from other students today saying a staff member has been discussing his absence and had told them he has been given a fixed term exclusion, which has raised his hopes of going back. So I have now had to raise a complaint regarding this to the school as clearly they shouldn't be having any discussion with students about him.

I have no faith that the la SEND team will do anything at all. It took a year for his EHCNA to go through and I have just had a ombudsmen complaint against them upheld. They are failing terribly and currently will no respond to emails and have withdrawn their phone lines.

What do you mean bully appealing the EHCP please? I am happy with the support outlined in there. It is very specific detailing X sessions for X minutes of Y support each week. My issue is not with the EHCP but with the schools failure to implement it. Can I appeal it on those grounds?

I am drafting minutes of the meeting yesterday and will send after work today. I am now keeping all communication to email as I am very concerned about them putting something completely different in their governors report.

Completely agree. SLT first and foremost are concerned about protecting the school before anything else. This is one of many issues I have had to raise with them it was a long battle to even get to this point.

For future reference, if the LA breaches statutory timescales you can enforce them, via judicial review if necessary. They may ignore you now, they can’t ignore JR proceedings. Often the threat of JR to the Director of Children’s Services or a pre-action letter works. Few get to an actually JR hearing.

The LA are the ones who are ultimately responsible for ensuring provision detailed, specified and quantified in F is provided. They are the ones legally responsible for ensuring those PeX receive alternative provision. Any enforcement action will be against them.

I suggest you submit an appeal because a) you can then appeal the placement, and b) it is likely the content of the EHCP could be more comprehensive - it is very rare these days to get a comprehensive EHCP correctly worded without an appeal, but sadly many parents only find out the wording is unenforceable when they get to a point where it needs enforcing. You can’t appeal because DS isn’t receiving the provision in F. The remedy for that is via JR rather than SENDIST.

Transport can be provided so don’t base decisions on that. SENTAS can help if you need to appeal transport.

Thank you all for the advice.

As suggested I sent my notes from the meeting to the school, who acknowledged receipt.

I have today requested and emergency review of the EHCP and spoken to the LA as well as contacting Diass and SENDIST.

Unfortunately to add to the issues my LA subcontract the provision of alternative education to another organisation who are saying they will only provide a few hours home tuition per week rather than full time education so I have now escalated this back to the LA and told them we will not accept this. If I do not get a satisfactory response soon I will start the proceedings to take to judicial review.

In the mean time I will start preparing for the governors meeting which they have decided to hold on the last possible day before they breach the statutory 15 working days.

Be careful with SENDIASS. Some are good, but too many repeat the LA’s unlawful policies.

The LA contracting out alternative provision doesn’t absolve the LA of their statutory duty so I are right not to be fobbed off by them.

Evening, after much consideration over the last few days I have decided that although I will fight the exclusion through the IRP process, I will also look for another school for my child and name a new school on his EHCP as soon as possible, moving him regardless of the outcome. My faith in the school to meet his needs, or even to behave transparently and honestly has gone.

The school have just told me they want to hold an emergency review within the next few days. First, can I ask, should it be the school holding this, given our dispute over the provision of support or can I ask the LA to hold this directly? and secondly, should I just go along with it this soon or would it be better to first look at some alternative schools and decide on the best ones to name? thirdly, if I refuse to attend will they hold it in my absence?

My son's EHCP does not specify any provision that most mainstream secondary schools could not provide and there is no chance that he would ever meet the thresholds for non-mainstream if that's relevant.

Alongside the early review, you should still appeal the existing EHCP.

You can request the meeting is postponed so you have at least 2 weeks' notice. I wouldn’t delay beyond that, though. You don’t need to be certain which school you want to name by the meeting. A review is undertaken by the LA, but the school will be involved and the LA delegate parts of the review process e.g. gather the evidence/hold the meeting (the LA may or may not attend, I would specifically request they do in this situation but they may still not)/write the report. You should be invited, but a review can be held whether you attend or not.

Who has told you DS wouldn’t meet the threshold for anything other than MS? When you say the EHCP doesn’t include anything most MS couldn’t provide, do you mean what mainstream schools can provide directly or do you mean what is possible in mainstream with outside support in addition to what the schools normally provide e.g. therapies?