The case study explains the support given to a parent of a permanently excluded child by challenging some of the procedures used in the exclusion.

Names have been changed to protect the identity of child and parent

Broccan was at high school and had an EHCP.

• Broccan received two Fixed Term exclusions for incidents – both exclusions had expired.

• School stated that Broccan was not to return, and they had found an Alternative Provision, which he should attend.

• Parent advised that school was named in the EHCP plan after liaising with SENDIASS and that a move to an Alternative Provision could have been against Children & Families Act section 43 and that Special Educational Provision detailed in plan was in danger of not being secured as per against Children & Families Act section 42.

• The school in response set an Annual Review the next month.

• Broccan’s parent had been told verbally from someone that a permanent exclusion was likely if she did not accept the Alternative Provision placement.

• SENDIASS supported Broccan’s parent at the annual review at which school confirmed both fixed term exclusions had expired but also stated that they felt him not best placed at their school.

• Broccan’s parent stated that she wanted hm to stay at the school during the Annual Review

• Within a day of the Annual Review the school wrote to Broccan’s parent to advise he had been permanently excluded citing the incidents that Broccan had been given fixed term exclusions for and both of which had expired.

• Broccan’s parent was given the option of attending the Governor’s meeting to decide whether to uphold the Head Teacher’s decision to permanently exclude him.

SENDIASS supported Broccan’s parent in the run up to and at the Governors meeting.

Part 3 of Children & Families Act 2014
– referred to as CAFA then the relevant section number in these notes

At the appeal it was requested that the Head teacher’s decision to exclude Broccan was examined alongside the guidance set out in Exclusion from maintained schools, academies and pupil referral units in England-Statutory guidance for those with legal responsibilities in relation to exclusion- September 2017

SENDIASS supported Broccan’s parent to challenge the Head Teacher’s decision to permanently exclude Broccan on the following grounds:

a) That the permanent exclusion was given because of Broccan's actions in part but it was the parents belief that this was also because of her refusal to accept a placement at an Alternative Provision /AP sourced by the School

b) That the fixed term exclusions were converted into a permanent exclusion contrary to statutory guidance in  Exclusion from maintained schools guidance The Statutory guidance states in paragraph 3:

“The law does not allow for extending a fixed-period exclusion or 'converting' a fixed-period exclusion into a permanent exclusion. In exceptional cases, usually where further evidence has come to light, a further fixed-period exclusion may be issued to begin immediately after the first period ends; or a permanent exclusion may be issued to begin immediately after the end of the fixed period.”

SENDIASS supported Broccans parent to argue that further evidence had not come to light and therefore the fixed term exclusions had expired. The conversion of a fixed term exclusion into a permanent exclusion was procedurally incorrect

c) That the permanent exclusion should only be considered on the grounds stated in the Head Teachers letter of permanent exclusion. Although the Head Teacher had detailed at length other issues in another communication it was requested that the other details of previous incidents were disregarded as the Head Teacher did not allude to them in their letter of permanent exclusion.

d) That although an EHCP review was held there was no time to look at other options to support Broccan to remain on roll at the school.

An EHCP review was held but permanent exclusion was issued directly afterwards allowing no other options to be explored.

A Parent had a right to request a mainstream education under Section 33 Children's & Families Act -( Not a particular school but a mainstream education ) and the LA must name this unless as per Section 39(4) Children's & Families Act it would lead to the inefficient education of others.

The above was not explored as a permanent exclusion notice was issued within hours of the interim review.

SENDIASS supported Broccan’s parent to argue that had the permanent exclusion not been issued and had the EHCP plan had been properly reviewed ( meaning that the report was sent to the LA and the LA deciding on whether to change , keep the plan the same or case to maintain- as per the SEN regulations) there were opportunities to better understand need:

• The last Educational Psychology/EP report was nearly two years old –If further EP advice had been sought in line with understanding need this could be written into the plan

• If Specialist school Outreach agencies had been sought to provide advice such as then any strategic advice could have been written into the plan

• CAMHs could have been asked to provide suggestions about what further interventions and support could be given / written into plan
  

The Panel wrote to Broccan’s parent. Their findings were that:

1.   In relation to Procedure

They found that after investigating the Head teacher’s reasons for converting the fixed term exclusion into a permanent exclusion they accepted the Head teacher’s statement that a fixed term exclusion had been issued whilst the school awaited the outcome of the Annual Review and had in fact been used in a genuine desire to avoid permanent exclusion.

The panel did not accept the suggestion that a permanent exclusion may have been issued in response to the parent declining the alternative provision – that the evidence did not support this claim and the offer of alternative provision had been made in good faith and a genuine desire to ensure Broccan could access a setting in which he might thrive.

The Panel concluded that the decision to permanently exclude was procedurally fair.

2. In relation to whether the Head teacher’s decision was lawful

The panel concluded quoted section 16 of the Exclusion from maintained schools’ guidance.

 “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. “

• And concluded that the incidents had most likely occurred in the way described and had constituted a sufficiently serious breach of behaviour policy to warrant permanent exclusion.

Governors felt that there was a significant impact on others in school. The Governors concluded that the decision was lawful.

3. In relation to whether the Head teacher’s decision was proportionate

The panel were made aware of several mitigating factors relating to Broccan.

The panel also felt that school had not had time to adequately explore opportunities offered by the emergency EHCP review which led them to be less clear on whether future adjustments may be possible.



The panel concluded that the decision had not been proportionate.

The Panel directed reinstatement of Broccan’s placement at school.

The Governors directed the reinstatement for Broccan within 10 days of the date of the letter.

Broccan was not however readmitted to the school – the Head Teacher allegedly stated to the Parent that Broccan must attend an Alternative Placement, and he was not to be readmitted to the school at that time.

At the time of writing the placement at the Alternative Placement is actually working, Broccan is happy, and the parent is considering requesting asking the Local Authority to name this placement in Section I of the plan – something the LA are prepared to do.

If the parent wished to, she could pursue further action as Children & Families Act section 43 require any education institutions named in an EHC plan to admit the child or young person. The service supported the parent all the way through this episode both by keeping them updated but also looking carefully using the law and applying it to this situation.

SENDIASS is prepared to support Broccan’s parent if needed again in the future.

Listen to our SENDIASS Podcasts: Season 2 - Episode 5 and 6

You may wish to read the following:

Fact sheet 1 Education Health and Care Plans

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