Was my child unlawfully excluded?

[Unlawful]

My child is a year 6, has AuDHD, an EHCP and it states in their needs that they may be physically or verbally aggressive to their peers. They have never been excluded for verbal or physical aggression before, despite incidents of this at school.

This week, they were excluded after a physical incident at playtime (a time the school knows is a huge trigger). The incident started as an argument with a friend. A teacher got involved. The argument continued after the teacher left and then my son and another child had a physical fight. My son made the first physical contact (open palmed hit), then the other child dug their nails into my child's wrist really hard and threatened to kick them in the balls or punch him in the face, then my child hit him a second time (closed palm punch). A teacher then saw and the boys stopped fighting immediately.
The school described the act by the other child as "holding wrists" but he didn't, my child has bruising and nail mark injury.

I am convinced that if the adult had redirected the boys away from one another and/or prompted my child to a calm place to de-escalate, the incident wouldn't have turned physical. But it did. Was it fair for my child to be suspended though, or was it unlawful? I don't know whether to write to the governors or not. Thanks!

Edited to add: fixed term suspension of 1 day

There isn’t enough information to say for certain either way. The suspension could be discriminatory, but it may not be. The school is likely to argue the exclusion is a proportionate means of achieving a legitimate aim, and where there is physical violence, they often succeed despite a child’s SEN. Even if it doesn't meet the bar for an unlawful exclusion, the school could have handled it better.

Was DS’s EHCP being followed at the time? Does DS’s EHCP include provision at break and lunchtime? If the school knows break is a difficult time, what support had they put in place? Why didn’t the teacher take further action? How did the school take into account DS’s disability when they were dealing with the incident? You don’t have to answer here, just things to think about and approach the school about.

I would take photographs of the bruising if you haven't already.

Thank you. Perhaps we've just been lucky to never have had a suspension until this point. Sigh.

We have an ehcp review coming up, so at least I can use this as evidence.

Well i would be arguing they failed in their anticipatory duty. You don't necessarily have to argue "by law it's discrimination" you can make the representation saying they failed in this aspect and you can send it to govenors and the head and argue they need more training or something

For sure they let him down - he is 6 and they failed to keep him and his peer safe when they know his needs and he was already dysregulated with a known trigger and an ehcp documenting this.

So yes I think you can complain. Not necessarily on the suspension but how the incident was handled. Be prepared for governors to be in cahoots with school though.

OP said Y6, not age 6. Although the same rules apply regardless.

OP, you should have already had a phase transfer review meeting this term. This is important because of the 15th Feb deadline. The LA is at risk of breaching that deadline. Is the review immediately after the holidays. If not, you need to chase now. Although don’t expect a reply. Then chase again after the holidays. The review meeting needs to happen ASAP.

Have you followed up any verbal conversations with an email so you have a paper trail as evidence?

Jeez y6 / 6 sorry.

sometimes you are quite insufferable @2x4greenbrick .

Ill be leaving your dominated space now and let you crack on. Won't be seeing me again.

Im just a regular parent trying to do their best and share my experiences. Not the expert you are.

No need to call out and correct a genuine mistake on my part in that fashion.

My point remains the same.

@HillBetty I was merely pointing it out because you had misread the OP. That’s all. Nothing to do with experience or trying. My second sentence saying the same rules apply regardless i.e. whether 6y/o or year 6 the same rules apply acknowledged your point was still the same.

Posters misreading the OP thinking the OP had posted X age rather year X isn’t an uncommon mistake on MN and is often pointed out by other posters.

Our ehcp has only just been put in place within the last few weeks, so I don't know if we will be due one by then? I am learning all this and not exactly sure! Should I still have one, even though the document is new?

Edited to add, yes email chains for all communication!! I don't know whether to also request their incident log for that day to see what is recorded on their system?

Thanks for your reply. You're right... This is what frustrates me. If you know your bottle of coke has been dropped on the floor and shaken up, you wouldn't open it straight away so it explodes!!! The adults should've been proactive and they weren't 😢

The LA will still need to finalise the secondary placement by 15th Feb.

Yes, you can request any data (including e.g. CPMOS entries) relating to the incident. You could also request risk assessments. I would ask all the questions in the second paragraph of my first post via email too.

If the EHCP has only just been finalised, do you need to appeal or is the EHCP watertight with all the provision reasonably required?

Thanks. The secondary placement is confirmed in the EHCP at the moment and the council admissions team have also verified that my child has a place at that school, so I think appealing the EHCP as it stands would have to be the route I go down, as I think our secondary placement is already confirmed.

It is watertight as far as every need has a provision and outcome, but it's unfortunately not been followed... I'm assuming because it was the last week of term and the routines got replaced due to other festive things going on (e.g. morning sensory circuits stopped for the hall being used for the Christmas show) 😢 lots of the proactive stuff that stops leading to major behavioural incidents was taken away essentially.

You can appeal the EHCP now if you need/want to. Tribunal won’t deal with enforcement. A Tribunal would be about improving the content of the EHCP. Not enforcement.

Going forward, if the provision in the EHCP isn’t provided, remind the school the EHCP is a legal document. The provision isn’t optional. As per section 42 of the Children and Families Act 2014, the LA is ultimately responsible for ensuring the provision in the EHCP is provided. Their duty is absolute and non-delegable. The provision can be enforced, including via judicial review if necessary. If raising the issue doesn’t work, you need a pre-action letter. Then, if that doesn’t work, JR proceedings will resolve the matter.

However, JR is only possible if the provision is detailed, specified and quantified in F. If it is vague and woolly, it isn’t enforceable and isn’t worth the paper it is written on. Some parents don’t realise their DC’s EHCP is vague and woolly until they need to enforce it and can’t. Common examples of woolly and vague wording include: “access to”, “would benefit from”, “regular”, “up to”, “or equivalent”, “opportunities for”, “as appropriate”, “would be useful/helpful”, “such as”, “e.g.”, “etc.”, “as required”, “as advised”, “key adult(s)”, “small group." If this is the case, you should appeal in order to improve the wording.

Is all the provision required detailed, specified and quantified in F? For example, does it include provision covering break and lunchtime?

If the EHCP has only just been put in place and the secondary placement is already named, are you sure you have an annual review coming up? That would be unusual.

We had the same happen, but my child has been suspended a few times now.

They knew his triggers but never watched him appropriately leading to altercations that could of been avoided.

I would write an email to senco asking how they can keep your child and others safe during dysregulation.

In my child's EHCP it says he needs an adult to watch for escalation of emotions and to act upon it preferably before it happens.

And yes use this as evidence in the review that he needs more closer supervision.