Exclusion must be a last resort says EHRC as they support a family to justice over their disabled child’s treatment

Should headteachers and school governors undergo mandatory training in the Equality Act 2010 and, specifically, disability discrimination? I’d like to think that they would already have a good grounding in all aspects of the law that applies to education and schools, but cases such as the recent one we’re writing about today may make you suspect otherwise.

In this case, a family, supported by the Equality and Human Rights Commission (EHRC), has won an appeal against a primary school, which had permanently excluded their seven-year-old disabled child because of his behaviour.

The child, from Stoke-on-Trent, has ADHD, autism and a sensory processing disorder. He was permanently excluded in November 2021. Two months later, the Independent Review Panel unanimously overturned the decision. A month after that, the Board of Governors upheld the decision to exclude, forcing the family to apply to the First-tier Tribunal. However, the FtT confirmed the exclusion. 

Undeterred, the family sought the help of the EHRC, which was concerned that the child’s disability had not been properly considered. The body provided support and funding to appeal the Tribunal’s decision and the appeal, heard in July 2023, succeeded.  

What does the appeal mean?

The result means the school was guilty of discrimination against the child, who, let’s not forget, is a disabled seven-year-old. It must now apologise to the child and his family, and the inappropriate description of the child’s behaviour must be removed from school records. The school will also train its staff on disability discrimination. However, the child still won’t be returning and will be taught at another school from the new academic year.

This isn’t an isolated case. In 2019, the EHRC supported a similar family whose adopted child had been excluded, while this family took legal action after they were compelled to home educate their children because their school didn’t give them the support they needed. And of course, there are many other cases that come before the Tribunal or are settled beforehand that we don’t hear about. There will doubtless be many more cases of disability discrimination in schools where a family doesn’t have the capacity to fight, or where the injustice simply goes unrecognised.

Likewise, I am sure there are plenty of schools who do everything possible to avoid exclusion, such as getting a child assessed and employing reasonable adjustments as explained in Susie Lenihan’s article here, as explored here on the CDC website and here by the EHCR itself.

We’d love to hear from schools who would like to write for us about their great practice in this area, so please get in touch.

What questions should a school ask before thinking about exclusion?

There are six main types of disability discrimination:

  • direct discrimination
  • indirect discrimination
  • failure to make reasonable adjustments
  • discrimination arising from disability
  • harassment
  • victimisation

Rather than expand on those here, there are links at the end of this article that do a comprehensive job.

However, as well as understanding the law, common sense should dictate that before an exclusion is considered, a school must ask: what’s behind this behaviour? What could have triggered it? There is always a reason, whatever that may be.

Does the child have a background of being in care, or is their family facing some difficulty that the child is reacting to? The school should certainly already know about the first and can take steps to find out about the second, if not already apparent.

Poverty, family breakdown, abuse, or an insecure living environment can make anyone desperately unhappy, let alone a child who may not be able to verbalise or make sense of what is happening to them (even if they are a very bright child). Why would you want to make things worse by excluding them? Compassion is key, even if a child has done something so serious they are likely to enter the criminal justice system. While removing them might be a relief to the school, they are still a child and still need support. If we just chuck them on the scrap heap, what kind of a society are we?

Stats show the score

Poverty certainly is an indicator for exclusions, which is why in a Cost of Living Crisis schools should be even more cautious. Latest exclusions figures show the suspension rate is higher at 16.02% for pupils eligible for Free School Meals, compared to 4.26 % for those not eligible. The permanent exclusion rate for pupils eligible for FSM is 0.20%, around five times higher than for those not eligible, at 0.04%.

And the figures for those with SEND? See for yourself. (DfE data here) This, to me, looks like a lot of children not getting the right support.

Figures from DfE

Assess before exclusion

The school should also consider mental health conditions, diagnosed or not and, of course, any additional needs that haven’t been assessed. Updated Exclusions Guidance (which we will have more about in an upcoming post) says if a child is at risk of exclusion, those with an EHCP should be considered for an early review of their plan to see what further support can be added, while those with SEND but without a plan, “the school should review, with external specialists as appropriate, whether the current support arrangements are appropriate and what changes may be required. This may provide a point for schools to request an EHC assessment or a review of the pupil’s current package of support.

This is even more pertinent in the wake of the pandemic when we don’t yet know all the ways that children, disabled children in particular, may have been affected. We think this should also be done before suggesting a move to any kind of alternative provision. It’s dumbfounding that any child should be arriving in AP without having had a statutory assessment. It’s the equivalent of kicking the can (or the child) down the road.

Surely any good head teacher should always ask: If this was my child, what would I want for them?  How would I want them to be treated and helped?

If you exclude a disabled child, you better be able to defend it in court

In this case, the family prevailed and I hope the child will now be in the right placement for him. But how many cannot fight this, and what happens to those children? The SEND Improvement Plan may have them bouncing between alternative provision and back to mainstream, neither of which may be the right placement.

“Permanently excluding children from education must be a last resort, especially for disabled children. This judgment makes clear that, where schools exclude a disabled child for reasons linked to their disability, they must show that the exclusion was for good reason, and that no other realistic options were available.  
"Education appeals and tribunals must also consider the proportionality of exclusions and whether other options were available. We are pleased that this family’s appeal was successful. Unfortunately, that is not always the case.Excluding children from school because they are disabled is discriminatory. The EHRC will continue to work to make sure that disabled children are not permanently excluded without proper consideration of other reasonable steps that could be taken first.” 

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission

The child’s grandmother has expressed her gratitude to the EHRC, saying their help was a lifeline at the most crucial time:

“The last two years have been extremely stressful for us as a family as we took our child’s case through the lengthy legal system. It was hard to take legal action against a school that we previously had a good relationship with. But the impact of their actions against our child made it necessary to seek justice. We feel that Staffordshire Local Authority should be held accountable. Local Authorities must acknowledge the impact of their decisions on children and their families.

“To have a little 7-year-old write a letter to his school begging to speak to his peers because he didn’t understand why he couldn’t go to school was heart-breaking. To have him out of school for over 20 months at a crucial part of his life when he should have been making friends, enjoying life and learning at school has been devastating to him and to our family, especially after the upheaval of Covid… We know many families will understand the feeling of drowning in this constant sea of battles that we face as parents and carers.” 

Child’s grandmother

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Tania Tirraoro
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