Our responsibility for vulnerable pupils: landmark exclusion cases

18 Apr

I        Duty of care for vulnerable pupils

The ground on which bulls fight suffers the most. Bulls may damage each other, but it is the battleground that is smothered.   This is what happens when it comes to caring for and educating children, especially the vulnerable ones: the bulls are the adults, the ground the children.    We adults often forget that, we have a profound duty of care for our youngsters and sometimes fall well short of discharging our responsibilities towards them.

While battles rage about how schools and academies should be judged, and they are compared to one another by the Department for Education (DfE), Ofsted, the politicians, school and academy governors, education leaders, parents, academics and consultants (the bulls), the children (the ground) suffers.  The most vulnerable children – those with special educational needs and disabilities – suffer more than most.  In the academic year 2016/17, the latest year for which these statistics are available, SEND pupils constituted nearly 50% of permanent exclusions.  These children were six times more likely to be permanently excluded than those without special needs.  Often, the covert reasons for excluding them is so that the schools and academies can raise their positions in the test and examination league tables.

Because schools/academies are in the frontline of promoting children’s all-round development, they witness directly the damage they can cause to them. Consequently, though they are concerned with league tables, they are more likely to offer them care and protection than other bodies.  However, the reality is that there has been a rise in exclusions.

There are three key reasons for this –

  • a squeeze on funding and resources,
  • perverse incentives caused by the accountability hokum and
  • curriculum reform making learning less accessible to children.

So, whatever the intentions of schools and academies, some are in breach of their duty of care for children and need to take close account of the Statutory Guidance on Exclusions issued by the DfE in September 2017.

But complying with the law is daunting. This is because schools and academies must balance the rights and interests of different pupils.  Acting to promote the welfare of one group may well be incompatible with the provision they make for another.  Disruptive pupils require extra support for which schools/academies may not have the resources. Then what? Should the headteacher allow disruptive pupils continue – despite everything done for them?  Won’t the education and welfare of others suffer?

The bottom line is that the governing board and the headteacher must comply with the law.  This is predicated on the school/academy having a robust behaviour policy that stands up to scrutiny. The board and headteacher are required to operate in accordance with it.  Such a policy will provide the disruptive pupil with support and include incremental punitive action – with support again – before the headteacher takes the ultimate sanction of a permanent exclusion.

Following a permanent exclusion, a committee of the governing board, which comprises no fewer than three governors, is required to review the decision of the headteacher.  The governors ensure that the exclusion is “lawful, rational, reasonable, fair and proportionate” (Section 3, paragraph 6 of the guidance).  They also must comply with statutory duties related to Special Educational Needs and Disabilities (SEND), having regard to the SEND Code of Practice (Section 3, paragraph 12).   Governors and staff must not be in breach of the Equality Act 2010 by not making reasonable adjustments to the school environment (for instance, in the case of an autistic child).

A key action that a school, academy or local authority is required to take is to make reasonable adjustments to accommodate a child with SEND.   If one or more of them fail to act in accord with statutory requirements and the child then behaves in a detrimental manner which triggers an exclusion, the school/academy could fall short and be in breach of the law.

II       Landmark cases

Two landmark cases bear scrutiny.

(a)        C & C v Governing Body

On 8 August 2018, Judge Rowley of the Upper Tribunal ruled in the C & C v Governing Body in which the Autistic Society was party that government regulations were in breach of the European Convention on Human Rights. The Secretary of State now is in the process of amending the regulations.  The point is not that a school/academy cannot exclude a child for serious misbehaviour, but rather that before doing so, it must make reasonable adjustments to the environment.  Only if a child misbehaves in such a way that he/she is in danger of causing damage to the environment, others or him/herself can an exclusion be justified.   In this case, nothing was done to make the environment suitable for the child.

(b)        Medway Council found wanting

In February 2019, the High Court ruled that Medway Council breached the law when it changed an autistic pupil’s Education, Health and Care Plan (EHCP) forcing a mainstream primary academy to admit him.    The academy alleged that the Council had “eviscerated” details of the boy’s EHCP, which included the provision for a sensory room for him, which it had refused to finance. The sensory room would have cost £40,000 (circa).  The academy maintained consequently, that the placement was “unsuitable”.

Judge Philip Mott QC said Medway had “no proper basis for explaining and justifying its decision”.  He ruled that the deletions from the pupil’s statement were “considerate and deliberate”.  He added: “I am bound to conclude that Medway’s removal of so much, without any change in the evidence, was irrational and unlawful.”  Accordingly, the High Court quashed the EHCP.

In April 2018, this eight-year-old boy (called X in the ruling) and his parents moved from Greenwich to Medway.  He has severe communication and sensory difficulties.  In Greenwich he was educated in a mainstream primary with a specialist resource unit. Medway placed the child in the academy (which the Court did not name).  However, the academy had refused to admit him, stating it was unsuitable to meet the pupil’s needs, because the EHCP stated he needed to use a sensory room for one hour a day.  The academy pointed out it had no space for one.  This apart, none of the teachers knew how to use a picture exchange communication system or British Sign Language and the academy had never delivered a P-level curriculum, which is for pupils working below national curriculum assessments.

Rather than looking elsewhere for a temporary placement, the Council decided to amend the Greenwich plan and name the academy.  In “eviscerating” the special educational provision set out in … the Greenwich plan” (according to the academy), the Council had removed the need for a sensory room, ruled illegal by the High Court.

The academy had appealed to secretary of state, Damian Hinds, to intervene.  However, the Education and Skills Funding Agency, on Hinds’s behalf, agreed with Medway’s argument that the SEND Code of Practice says councils must work on the “presumption of mainstream” provision for high needs pupils.  The academy averred in its case to the High Court that the boy’s “personal safety” could not be promoted as there was not a suitable room for him to operate.   It requested £40,000 additional funding to accommodate the pupil. Medway only offered financial support totalling £21,151, plus the £6,000 of core funding for extra provision.

The High Court ruled it was likely the school was unsuitable and quashed the Medway plan. It has ruled the pupil’s original EHCP from Greenwich will remain in place until reviewed properly by Medway Council. Meanwhile, Medway must find suitable provision for the pupil until an alternative appropriate school/academy can be found.

A Medway Council spokesperson said: “We are aware that the judgement has been published and we will be reviewing the outcome.”

III     The financial conundrum

Good practice is driven by governors and school/academy leaders who are efficient, effective and, most important, acting with humanity.  Sometimes, however, patience is in short supply and what the headteacher does is create a special unit housed generally in a “hut” away from the school/academy where problematic pupils are confined to purdah.  The children are not excluded, because they are still on-site. But they are internally excluded by being placed in isolation.

Other headteachers inform the parents of disruptive pupils that they should withdraw their children otherwise they (the children) will be excluded.   The parents then whip out their children and transfer them to other schools/academies.   A school/academy that engages in such under-the-radar practices then has a cleaner record on exclusions than it would otherwise and receives a pat on its collective back. Ofsted has begun to examine schools/academies with high levels of internal exclusions and in-year pupil moves/off-rolling.

Many question the humanity of a school/academy.  However, it is not possible to operate reasonably if they are financially legless.  Local authorities and schools/academies are being financially squeezed. Both groups are now calling upon reserves and if nothing is done to ease the financial pain, will be running deficits.

The Chancellor’s largesse last year was limited to an extra £250 million to support pupils with SEND.   However, local authorities, schools and academies need £1.5 billion extra to provide for vulnerable children.   Funding “high needs” was one of the “asks” of the National Governors’ Association in March 2019 in its campaign.  There will be merit if governing boards were to contact the NGA at 36 Great Charles Street, Birmingham, B3 3JY or 0121 237 3780 to see how they can help to turn the screws on the Chancellor to loosen the public purse and provide more help for educating the country’s future – our children.




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