SEN exclusions – the Tribunal’s power to revoke discriminatory exclusions

Last year we reported on the case of C and C –v- Governing Body of a School and Others which changed the law regarding exclusion of pupils presenting with violence in school.

As discussed in that article, a school can now only exclude a child presenting with violent behaviour, whose behaviour is connected to a disability, where the school has done everything it can reasonably be expected to do to avoid the exclusion so that it can demonstrate that exclusion is justified and proportionate.

The recent case of Ashdown House –v- JKL and MNP has seen parents challenging the decision of the school to exclude their 10 year old son following his violent behaviour in school.  The child has ADHD, sensory processing difficulties and emotional and social difficulties resulting from trauma in early childhood, which were linked to his aggressive and targeted behaviour towards another pupil and 37 incidents of violent unprovoked aggression.  The case for the family was funded by the Equality and Human Rights Commission.

The First Tier Tribunal ruled that the school’s decision to exclude the child was disproportionate because, whilst the school had made a number of adjustments for the child, there were further adjustments that should have been made. Examples included anger management training and social skills groupings.  The Tribunal found that the school had not sought the advice of either the local authority or CAMHS in the run up to the exclusion, and it did not alert parents to the real risk of permanent exclusion, which in the Tribunal’s opinion may have allowed the parents to take medical advice on increasing the child’s medication.  In addition, less serious sanctions had been applied to other children who had committed comparable acts of violence and aggression.

The First Tier Tribunal ordered that the child should be reinstated at the school and that a formal apology should be made to the child.  The school appealed this decision to the Upper Tribunal.

In the appeal, the school sought to argue that independent schools were outside the remit of the First Tier Tribunal, that the First Tier Tribunal’s decision should only be seen as a ‘recommendation’ and that an order for reinstatement could in any event not be enforced against an independent school.

The Upper Tribunal disagreed.  It confirmed that the First Tier Tribunal has wide powers to make orders on issues involving disability discrimination in all schools, including independent schools, and that these powers extend to orders for reinstatement following an exclusion.  It made clear that where an order for reinstatement of a child has been issued to an independent school, the parents of that child can apply to the High Court to enforce the order if the school does not comply with it.  It also reiterated that the First Tier Tribunal had correctly applied the law when concluding that the decision to exclude the child had not been disproportionate.  The Upper Tribunal confirmed that the school must reinstate the child and provide him with support and extra tuition to compensate for the schooling he has missed, as well as sending him a written letter of apology.

This decision is a further reminder that children with SEN should not be excluded on grounds of their behaviour without very careful consideration.  It is essential for schools to be certain that they have implemented all reasonable adjustments to enable the child to access the curriculum alongside other pupils, despite their condition and associated behaviour, so as to render exclusion justifiable.  This will always be a careful balancing of numerous incidents and interventions relevant to the case in question. 

However, it is our view that both Tribunals exceeded their powers, in ordering reinstatement.  No power has been provided by Parliament which would permit such an order and we therefore consider that the decision of the Upper Tribunal is open to challenge.   We are advising schools on this issue and on the best approach to adopt, depending on the particular facts.