Is this legal? - exclusion

[iloveithere]

Hi, I have had some great advice from here in the past, and hope someone can clarify this for me.

DS is 5 in year R. (was 5 in Sept, so is of compulsory school age)
He has behaviour issues, we have no diagnosis, and up until last week school, EP, etc all said there is no way he would get a statement, so don't even bother trying. Now they say they are going to start collecting evidence to apply for one.(this is good, we want one)

In October he was put on a part time timetable, then split his time between school and a specialist BSED setting. This seemed to help, and before Easter it was decided he could return to mainstream school full time.

Since then it has all gone wrong. We have been phoned to collect him on several occasion, which I know is unlawful, but we weren't given much chance to dispute it. We have asked for it to be put in writing to create a paper trail. We are still waiting for this.

Now, if you have read all that thanks.
On Wed a meeting took place which they refused to let us go to. I'm not even sure who did go, but we have been offered 2 options.

1. he goes to school 5 half days a week, and is at home the other half days, with work sent home for him.

2. He attend school 3 days a week, and a BESD setting 2 days (a different one to before, newly built, closer to home than the last one) On the 3 days he attends school, we have to collect him for lunch, and they will tell us if he has behaved well enough to be allowed back in the afternoon.

Please help.
I think option 1 is unlawful, as it is exclusion by the back door, excluding him for half a day every day, not even depending on his behaviour. Do they have to write him an exclusion letter every day? I thought he could only be excluded for a max of 5 days a term, and only for reasons of behaviour, which this won't be, as it will be set out in writing before hand that he will be at home each day.

Also, it seems to me that hanging about at home for hours every day, even with some work sent home, will be of no benefit to him, only to the school as it will mean they don't need to deal with him for a few hours. He will not learn, get interaction with other children, be helped to deal with his anxieties etc.

Option 2 seems a bit better, the BSED centre seemed to work last time, but as soon as he stopped going he got worse, seeming to me that the work they did was not continued in school.
However, the option of being told not to come back after lunch on his school days seems unlawful again.

So can anyone advise me what I can do? Do I have to accept one of these options, or are they both unlawful? If they are, what can I do to convince the school to change them. and to what?

Sorry to ramble for so long, I wanted to make sure I included everything, and its 5.30 am and i have barely slept.

OK, ( sadly have had far too much experience of this )

The ringing up and asking you to pick up your son is illegal exclusion. You should have a formal exclusion letter everytime this happens. This is needed as evidence that the school is not meeting his needs.

Neither of the two options are I think illegal .

For option one though there should be a reintegration plan and what measures they will put in to try and achieve this. I did find some documentation that suggested six weeks was a reasonable timescale to try. We never got anything in writing when ds2 was put onto similar so we wrote one instead (copied into everyone!!!!) that we would agree for six weeks after which we expected that he would return to full time education.

For option two - the split placement seems fair but like you said if there is random picking up that would be illegal exclusions. It is not ideal if there are transition issues - I don't think either ds1 or ds2 would have coped with this arrangement. The constant swopping of educational venues would be disruptive to any child never mind one with already acknowledged behavioural problems. ds1 went through four schools in as many months last year and was totally bewildered by the process.

In truth given your son improved at the BESD school but has got worse again on returning to mainstream then it suggests to me that he needs a permanent BESD type setting and this is what the LA should be seeking. Why do they think that a reduced timetable will improve matters - it does not tackle behaviour just reduced opportunities for incidents to occur.

There should be an "exclusions officer" at your LA and it would be worth talking to them - we found them quite helpful. One thing to ask is if any more support can be put in now to prevent anymore exclusions.

Write the letter for statutory assessment yourself today (template on IPSEA website). You have more than enough evidence showing need and your son needs appropriate support as soon as possible. Leaving it to the school will only delay things.

Do phone IPSEA. If you go on their website you can book an hours appointment with someone who can advise you properly on how to take proper action. It is time to take action though!

The following is only my personal opinion but:-

Every child needs a bit of consistency to their routine,all this chopping and changing between sites and settings would upset any child of this age even without potential SN's thrown into the mix. He probably doesn't know if he's coming or going poor lad,so kicks off to get sent home where he does feel safe. Not only is it illegal, it's entrenching the very behaviors you don't want, so is very damaging long term.

You are right both are unlawful for reasons you say. PT is only suitable as part short term plan reintegration into mainstream but in effect by keeping him besd 3 days and making you go at lunch they are admitting they don't expect it to work and so it's not really reintegration plan but a cost saving plan of not paying 5 days besd placement and getting you step in and do it for free. There is no expectation he will be reintegrated into mainstream FT in the near future. They should place him FT in besd school and reintegrate him if appropriate into mainstream with staff from besd school going to mainstream with him and supporting him / training ms staff. Alternative is home prog like ABA again with specialist staff reintegrating him and supporting him in mainstream. Or just put him in besd as permanent placement. If they go for 1 demand home tutors not you doing it as you are not required to stay home / give up work etc or provide his education. Yes you should have letter every time and sit in reception and refuse to leave until you get one. Has statutory assessment formally begun? If not start process yourself with ipsea letter so statutory clock is ticking. The LA has duties under child care act to allow you to work so shouldn't be forcing you to stay home esp as it's not part of a plan with much prospect success.
So I would reject both. Get ipsea staff help you draft letter. Ask for FT specialist education.
He has legal entitlement to FT Ed if ms can't provide it can be provided in special school or via ed otherwise than at school (a funded home prog). I would say you will be dropping him off at mainstream on 2 days and not collecting him at lunch but at home time like every other child.

I am getting incensed on your behalf that you were prevented from attending the meeting when the options were discussed. ( this is probably to distract me from working out what to do about ds1's school next year ). We were always invited to every meeting to discuss ds1 and ds2 schooling and it is important that your views are taken into account because you know your child best.

Forget about their options what do you want for your son - mainstream with support or BESD school. What support do you think might make a difference to your son? You have already established that in a small, nurturing environment with understand staff his behaviour is good. Is this achievable in mainstream? What support have they put in already and can this be increased. What are the options in your area if he is permanently excluded - ds1 was and ended up in an EBD school that meets his needs much better than mainstream. I wish there had been a less painful way to get him there but he is happy now.

Thanks for all these replies. I'm at work so will read later at home.

Thanks for all these replies. I'm at work so will read later at home.

V interesting, Agnes. I've only skim read, but dh has had to give up work already, as ds has to come home for lunch every day since October, so im interested to hear they are not supposed to make us do that.

V interesting, Agnes. I've only skim read, but dh has had to give up work already, as ds has to come home for lunch every day since October, so im interested to hear they are not supposed to make us do that.

sorry for all the double posts, was on my phone and it was obviously having a bit of a moment!

DH is worried about asking for letters for all these unlawful exclusions, he doesn't want to upset the school. He thinks if we do, they will just turn around and say they are going to permenantly exclude him, which will be no good for anyone.
Can they do that?

He wasn't allowed back after lunch today again, apparently he punched someone.

His behaviour at home is so vastly improved now, it's so frustrating to see how bad it has got at school. grrrrr

Councils often do expect parents to give up work, but your child is not ill, they are just not in the right placement. Sometimes its inevitable there is short period of PT education while places / solutions are found etc but shouldn't continue longer than is reasonable / necessary. I hadn't realised you were picking up at lunch since October!!!

You can always complain about delay (formal complaint via council complaints procedure) and then go to Ombudsman who could decide the delay by LA to sort out FT education / permanent solution is too long and recommend financial payment for lost wages etc.

Its worth pointing out in writing have had to give up work because the LA has not yet found a permanent sustainable solution - that way Council can't say later it wasn't on notice you were unhappy with the situation / financially affected.

If there is a 5 day placement available and its what you want and experts say is suitable then continuing with PT just to save costs isn't really reasonable.
He can presumably go to BESD school 5 days
He can presumably go to mainstream with LA employing a specialist BESD support worker / sending a besd teacher into school with him.
He could be taught 1:1 outside the classroom half the day.
The Council could in theory provide social care / direct payment worker / childcare for the time he is at home and / or home tutor
There are lots of solutions which don't involve you quitting work.
Councils almost never do any of these because parents don't complain quickly enough and they know it takes months to get to tribunal and force it.

For a young child the Council can write a Statement with one overarching report - e.g. EP. It can be done quickly.

I would FOI them for the minutes of the meeting. It is wrong you were excluded but to be honest I think having time to reflect and consider your next move is probably a good thing, if you had been at the meeting you might have been put on the spot to agree to one of these plans.

I would FOI the council and both schools for your child's entire file - you might find emails etc which suggest no-one really has any confidence in this plan.

I agree decide what you want and reply to LA stating that clearly, rejecting these plans and pointing out the financial impact etc and that you consider the LA delay in finding permanent solution is unreasonable. I probably would stick in formal complaint too. Plus you must start statutory process thats your only legal weapon that has a set timescale.

Why would this plan work if it hasn't worked since October!!!

Maybe they have done a deal with school to keep him until July so LA doesn't have to fund anything permanent until Sept.

Sorry cross posted
Yes the school could exclude but you can appeal and can insist on a report being obtained from SEN expert. Chances are LA would have to do statutory assessment Look at IPSEA on exclusions.

You need to figure out what you want - do you want him in mainstream? What would it take to make that work?

If you have it in writing must collect at lunchtime then thats enough to prove to any exclusion appeal / tribunal whats been happening so you don't have to ask for letters if you don't want as its documented elsewhere (worth keeping a diary you could show to tribunal though)

how is school marking the absence - what code are they using?? they can't be marking it as exclusion (which they should).

At end of the day the LA has a duty of care to the other children and school staff too.

Children can go to special school and then move back later - that often works better as the SS will support the child and build up slowly e.g. he may go to besd school for while and then do one half day a week with TA from BESD school in m/s. That often works better as SS take control and only move children back when they think ready and the m/s school is skilled up to make it work. That way its part of a proper plan not sink or swim.

Oh this is so complicated! As far as I know, the LA have not been involved, the school have made all the decisions. The BSED placement is not possible full time, it is a setting designed especially to get children into mainstream as quickly as possible, 10-12 weeks part time, whilst working with and training the school. I think that is where it went wrong before, the training didn't happen and he lost all his support system when he went back to school full time.

As for lunch times, we didn't think we could insist he goes, we thought, seeing as he was doing am and pm sessions that counted as full time, even though we had to give up work to have him at home for the hour in the middle of the day. I don't know if he has the right to be at school over lunch time, it is not part of his education, is it.

Sorry to ramble, im so confused.

Certainly get that request for statutory assessment in TODAY.

I don't think permanent exclusion would necessarily be such a bad thing. It would point up the fact that this school cannot meet his needs and would help to push the LA into agreeing to assessment. DS would have a right to full time education from the sixth day after the exclusion which could be by something like home tuition, a place in he BESD school, or a place in a PRU.

Yes, sending DS home just for lunchtimes is still exclusion - it counts as a half day. So if they don't send letters home these are illegal. I suspect that the reality may well be that the school has now exceeded the maximum number of days' exclusion per year that are allowed anyway.

The LA have been involved as the EP is employed by the LA and seems to have given poor advice.
Put in the request for statutory assessment yourself then you know the clock has started.
Then put this all to one side for the moment and decide what you want. Go and look at besd schools including in other LAs and independent sector. Think about contacting an ABA specialist and see if they think they could help / support in mainstream (ABA) isn't just for autism.
Do you need assessment eg by psych, speech etc
What is it you are doing that works that school is not doing.
Can you go and observe the problems at school?
Complaints etc can wait until later what you need is a plan c which you have confidence will solve the problem
Are there any schools with units attached?
Go on the council website and other councils near you and see what schools they have, and look up private special schools and see what is available.
Looking at the open data section of council website (spending above £500) will show you which schools they send other children to. He is not the only one!
Are there are parent sen groups you could tap for info about schools?
Set yourself a goal of finding somewhere for sept which will be sustainable, then you can start fighting for it, but you have to know what you are fighting for first.

I think you have hit the nail on the head, Agnes,we need to work out what we want, but seeing as we don't understand his problems and don't know what is available its really hard. But you have given us loads of ideas so that's great, thanks.

I think you have hit the nail on the head, Agnes,we need to work out what we want, but seeing as we don't understand his problems and don't know what is available its really hard. But you have given us loads of ideas so that's great, thanks.

Have you spoken to parents partnership?
Has a behavioural specialist been to see him?
My son asd gets full time support without a statement although we have now won our appeal.He started reception this year and it was suggested going part time.Our school gets a budget per sen and then anything over the statement would cover hence the part time bit i feel.
Is your son getting the appropriate support?
Although no diagnosis sen kids need structure and routine and its niot helping your sons behaviour or allowing him to adapt to his environment.After all the school would be the first to send a letter regarding unauthorised absences!

I would definitely ask the school,in writing, how all the absences are being recorded. From experience the code will be incorrect. The school will not want their absence figures dragged down by these illegal exclusions as questions will be asked so you need to be pushing them on this point.