SENCOs who may be involved with pupils facing the possibility of exclusion should be aware that the latest guidance on procedure is now available online. With some changes in official advice this makes it an appropriate time for SENCOs to consider school policies in relation to arrangements for pupils with special educational needs and pupils with disabilities.

Although Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units, does not have the force of statute, there is an expectation that it will be followed unless there is good reason to depart from it. It is not exhaustive and judgments will need to take account of the circumstances of individual cases.

Main changes made in the 2006 edition of DfES guidance include revised text on arrangements for disabled pupils and on removing pupils from school in exceptional circumstances. The guidance discourages unofficial exclusion and encourages enabling the pupil to have a voice in the exclusion procedure, if he and his parents wish.

Training for members of and clerks to exclusion appeal panels is now mandatory and there is clearer guidance to panels on their composition and decision-making process.

Pupils with SEN

With regard to pupils with special educational needs the guidance emphasises that other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements. They should also make every effort to avoid excluding pupils who are being supported at School Action or School Action Plus.

In most cases, the headteacher will be aware that the school is having difficulty managing a pupil’s behaviour well before the situation has escalated. Schools should try every practicable means to maintain the pupil in school, including seeking LA and other professional advice and support at School Action Plus or, where appropriate, asking the LA to consider carrying out a statutory assessment. For a pupil with a statement, where this process has been exhausted, the school should liaise with their LA about initiating an interim annual review of the pupil’s statement.

The guidance states that it is extremely important that parents of children with SEN who are excluded from school receive advice on the options available for their child’s future education. Schools might usefully advise parents that advice and information on SEN is available through their local SEN parent partnership. The parent partnership should also be able to provide details of voluntary agencies that offer support to parents, including those that can offer advice concerning exclusions.

Disabled pupils

Schools have a legal duty under the Disability Discrimination Act 1995 as amended not to discriminate against disabled pupils by excluding them from school because of behaviour related to their disability. This applies to both permanent and fixed-period exclusions. The definition of disability under the act covers pupils with physical, sensory or learning disabilities.

Discrimination occurs where a person treats a disabled pupil less favourably than other pupils for a reason that relates to their disability without justification. It also means failing to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage compared to their non-disabled peers.

It must also be remembered that the reasonable adjustments duty requires schools to think ahead, anticipate the barriers that disabled pupils might face and remove or minimise them before a disabled pupil is placed at a substantial disadvantage.

It is unlawful to exclude a disabled pupil for a reason related to their disability without justification. When considering whether or not it is appropriate to exclude a pupil who may be disabled within the meaning of the Disability Discrimination Act 1995, head teachers should consider four questions:

Is the pupil disabled?

The act covers pupils with physical or mental impairment including sensory impairments and learning difficulties. The definition of disability is not the same as the definition of special education needs.

Is the exclusion for a reason related to the pupil’s disability?

This means that if there is any connection between the behaviour resulting in the exclusion and the pupil’s disability, this could be considered ‘less favourable’ treatment.

Would another pupil to whom the reason did not apply be treated in the same way?

If the reason for the exclusion is the pupil’s ‘behaviour’ then it is necessary to consider whether or not another pupil who did not behave in that way would be excluded.

Can the exclusion be justified?

An exclusion of a disabled pupil for a reason related to their disability can only be justified if there is a ‘material’ and ‘substantial’ reason for it and the headteacher can show that there were no ‘reasonable steps’ that could have been made to avoid the exclusion.

Maintaining order and discipline in the school could be a ‘material’ and ‘substantial’ reason if there was a specific incident that gave rise to the exclusion.

Reasonable steps in response to the pupil’s disability could include differentiating the school’s general disciplinary or behavioural policy to take account of behaviour which is related to a pupil’s disability; developing strategies to prevent the pupil’s behaviour; requesting external help with a pupil (eg requesting a statutory assessment) and staff training.

Appeals against permanent exclusion, where discrimination is alleged to have taken place, or the disabled pupil has allegedly been placed at a substantial disadvantage by the exclusion procedures, will be heard by the Independent Appeal Panel. Claims alleging discrimination in respect of fixed period exclusions will be heard by the SEN and Disability Tribunal (SENDIST).

The guidance also includes detailed advice on procedures for exclusion, with illustrative case studies showing how these might be applied and examples of model letters to parents.

Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units is available online at
www.teachernet.gov.uk/wholeschool/behaviour/exclusion/guidance