exclusion of violent pupil, exclusion of pupil with SEN

Exclusion of a violent pupil who has SEN

Legal Surgery answers a question about exclusion of a violent pupil who has SEN

When is a local authority in breach of its human rights duties to a pupil with SEN?

Athe case of A v Essex County Council [2007] All ER(D) 213 (Jul) concerned a child with SEN. He suffered from severe autism, epilepsy, and learning difficulties. He also self-harmed, and had 10 to 15 short epileptic fits every day.

The boy attended the LS School for children with severe learning difficulties, named as appropriate in his statement of SEN. The LS School, however, asked that he be removed, because his violence constituted a danger to pupils and staff.

OUT OF SCHOOL
The boy was kept at home pending medical assessment. The school sent him work and he had speech and language therapy. For a few months, he attended the LS School for activity and individual teaching sessions.

The boy was medically assessed and received funding for a residential placement. He had respite care three days a week. The local authority approached 26 schools and he began at a residential school later that year.

He had been out of education for 19 months. A paediatrician’s report said this had had a temporary effect on his learning and development, but possibly a permanent effect on his behaviour.

LEGAL PROCEEDINGS
The boy claimed damages, on the grounds that the local authority had:

failed to provide him with a suitable education — by unlawfully excluding him from the LS School (in breach of Art 2 of the European Convention on Human Rights — the right to education)
subjected him to inhumane or degrading treatment — by failing to provide him and his family with social welfare services (in breach of Art 3, which prohibits torture or inhumane or degrading treatment)
interfered with his right to a private and family life — by failing to provide him and his family with social welfare services (in breach of Art 8, which requires respect for an individual's private and family life)
discriminated against him —in that it had treated him differently from a child without SEN (in breach of Art 14, which prohibits discrimination)

The local authority applied for the proceedings to be dismissed, as not disclosing a reasonably arguable case. The application succeeded. It was held that the local authority had not committed any breaches of the convention.

THE RIGHT TO EDUCATION
A child of compulsory school age with SEN has no right under Art 2 to education of any particular type or in any particular school. The right is simply a right not to be denied access to the UK education system.

In any event, exclusion from school is a breach only if it is for such a long period, with such a lack of alternative education at another school or in the form of work at home, that it can fairly be said that the child has not received the bare minimum of education.

A good reason for exclusion
The boy’s exclusion from the LS School had not been in breach of Art 2 because there was a good reason for it: the LS School could not cope. His claim that he had not been provided with an education during the 19 months had no prospect of success under Art 2. He had been out of school during that period because of the danger that he posed to fellow pupils and staff, and because he was waiting for assessment and then for a suitable school.

It could not be argued that during that time he had been denied the basic minimum of education guaranteed by the convention.

No inhumane treatment
So far as Arts 3 and 8 were concerned, whilst life for the boy when out of school was stressful, and he had been under-stimulated, and his parents had had the draining job of protecting him from self-harm, this did not come close to the level of degradation or hardship necessary to an amount to a breach of Arts 3 or 8.

This being so, it was hard to regard his predicament as such that it was necessary to provide him with support. Also, the necessary degree of culpability on the part of the local authority was lacking.

No discrimination
So far as the Art 14 discrimination claim was concerned, he was not in an analogous situation to children without SEN. On the contrary, he had been dealt with on the basis that he did have SEN, which had required a different education from that in the mainstream.

Michael Segal is a district judge in the family division of the High Court

This article first appeared in Education Law Update - Sep 2007

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