Behaviour management in schools: legally, the playing field has not been levelled

And Alex Stafford, Solicitor, IPSEA legal team member, parent of teenager with SEND

The publication at long last of the SEND Review has taken up nearly all our attention in the last few weeks. But other education policy developments continue that will hugely affect children and young people with SEND.

One of the Government’s biggest education priorities is behaviour in schools. The Department for Education has amended its guidance for schools on behaviour management and exclusion, carrying out a public consultation before this is finalised. The SEND legal information charity IPSEA submitted a detailed response highlighting a wide range of issues. 

Today on SNJ, Alex Stafford, solicitor, member of IPSEA’s legal team, and parent of a teenager with SEND, explains why she is so concerned about the way the guidance is developing.

When to comes to behaviour, who matters more, schools or children? by Alex Stafford, IPSEA

The recent consultation by the Department for Education on revised guidance for schools on behaviour management and exclusion is an interesting insight into the Government’s priorities and, perhaps unintentionally, how policy-makers see children and young people with SEND fitting into the school environment.

There are two pieces of guidance, one statutory (on school exclusion), and the other non-statutory (on behaviour management). DfE has recently updated both, following a call for evidence last summer on how schools manage common behavioural challenges.

From IPSEA’s perspective, the message of both pieces of draft revised guidance appears to be that the overriding priority is the needs of schools, not the needs of individual children.

The tone and emphasis in both pieces of guidance is on controlling children’s behaviour (with behaviour that does not conform to the norms prescribed by schools being labelled “misbehaviour”). It is about maintaining a particular kind of school environment, rather than supporting children to succeed at school. There seems to be little, if any, consideration of school settings other than mainstream, even though the law applies to maintained and academy special schools as well as pupil referral units.

Assumption that schools know about every child’s special educational needs

The message is that all children should follow school rules unless their identified needs make this impossible. However, this rests on an assumption that every child with SEND has had their needs identified, understood and met by the school they attend. 

We know there are many children in schools who have not been identified as having SEND, but whose needs may nonetheless affect their ability to comply with rules and expectations in the school environment. There are children whose needs are known but not understood or met in school.  This guidance sets these children up to fail, presenting them as ‘other’; either ‘special and different’ or ‘naughty’ (or, as the SEND Review describes them, “Children and young people for whom a strong behaviour culture alone is not sufficient”).

Looking for the root causes of poor behaviour

This contradicts the Children’s Minister, Will Quince MP, who told the House of Commons Education Select Committee in December 2021: 

“We need to look at the root causes of exclusion… Often exclusion is driven by behaviour, but that behaviour itself has a root cause and it is a matter of getting to the bottom of those root causes. In some cases it might be family driven, but in too many cases it is down to undiagnosed or unsupported needs, whether special educational needs or emotional needs; or there is some other underlying root cause that we need to get to the bottom of.”

Will Quince MP, Minister for Children & Families

We agree with the Minister, and told the Department for Education (DfE) in our consultation response that there should remain an explicit focus in the guidance on understanding the needs that underlie children and young people’s behaviour. Schools should be required to consider possible links between the school environment and why children behave in particular ways.

Expectations about behaviour

Any “minimum expectation of behaviour” must take account of children’s individual needs and how these needs (whether met or unmet) might affect their behaviour. 

The point here should not be about expectations being “lowered” for pupils with SEND but the playing field being levelled for every child, by providing support in accordance with their particular needs. (I can’t resist the observation that expectations are low for children and young people with SEND in every area except their behaviour in school.)

The guidance must be clear that it is discriminatory to set, as a behavioural norm or standard, something that a child or young person with SEND may not be able to achieve as a result of their special educational need or disability. 

The 2018 Timpson review of school exclusions stated clearly that the way some schools apply sanctions and exclusions has a disproportionate impact on children and young people with SEND. This draft guidance is not a coherent follow-up to the Timpson Review, with paragraphs 33-37 appearing to endorse some of the practice that leads to the disproportionate sanctioning of children with SEND.

Behaviour is not always a choice

It is very important that schools and education professionals do not assume that all behaviour is deliberate or within a child’s control, and then sanction them for making “poor choices”. 

landmark ruling by the Upper Tribunal in 2018 was clear on this, and it should be referred to in the guidance. The judge, in this case, ruled that if the behaviour of a child in education is a direct result of their disability, the school must be able to justify that a decision to exclude the child in these circumstances is proportionate.

We know from our work with families and our training work with SENCOs and other school staff, that the need to consider whether a child's special educational needs may impact their ability to follow a rule is not well understood, even by SENCOs.

Schools’ duties under the Equality Act 2010

It is our firm view that guidance on what should be included in a school behaviour policy must also explain how the policy should be implemented while a school still meets its responsibilities under the Equality Act 2010.

As currently drafted, however, the behaviour guidance does not set out what the law requires from schools in terms of reasonable adjustments for children with SEND. There is instead, in paragraph 19, a reference to “appropriate adjustments”. (“Appropriate adjustments can be made to routines for pupils with additional needs, where appropriate, to ensure all pupils can meet behavioural expectations.”) “Appropriate adjustments” is not a legal term – unlike reasonable adjustments – and it's entirely unclear what DfE means here.

High levels of exclusion: a sign that a school’s behaviour policy has failed  

There needs to be a clear acknowledgement that high exclusion rates, whether fixed-term or permanent, are a sign that a school’s behaviour policy has failed. 

The evidence from schools indicates that exclusion (both of individual pupils, and a school’s overall exclusion rate) is a choice schools make. Rates of exclusion vary enormously between schools, multi-academy trusts and local authorities, even where similar demographics of children are represented.

However, the DfE proposes a significant change to the description of when a decision to permanently exclude a pupil should be made to remove the consideration of harm to, or welfare of, the pupil themselves. 

Paragraph 16 of the current guidance says, “A decision to exclude a pupil permanently should only be taken: in response to a serious breach or persistent breaches of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school”.

But the amended guidance replaces the second point with, “where allowing the pupil to remain in school would seriously harm the education or welfare of the pupils or staff in the school” (i.e. just everyone else).

If this fundamental change is being made, the guidance should acknowledge it clearly so that the implications can be fully considered.

In conclusion

The focus for schools should be identifying, understanding, and meeting individual children’s needs, as required by the Children and Families Act 2014 and associated regulations, and set out clearly in the SEND Code of Practice. 

A child’s behaviour cannot be considered in isolation to their special educational needs and/or disabilities, either practically or legally. Treating all children fairly does not mean treating them all the same.

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