As with its predecessor of 2009, the 2012 Exclusions Code emphasises the need for schools to have regard to SEN when making a decision to exclude.
Where the SEN concerned is a disability, “reasonable adjustments” will be required to avoid a possible claim for disability discrimination. A later article will consider how best to do this. Here I consider the role of a new player in the exclusion process, the independent SEN expert.
Unless handled carefully, this risks complicating a permanent exclusion at the final stage, when it is being considered by an Independent Review Panel (IRP) following approval by the governors’ discipline committee.
Before looking at how this might be, and how to lessen the risk, I want to introduce the case of an excluded boy with a peculiar interest in combustibles – let’s call him Guy. For reasons of both anonymity and simplicity, details have been changed.
Guy’s case and the SEN advisor
Guy was academically successful – when it came to chemistry, a little too bright for comfort. He was diligent and respectful. Save for the series of explosions of increasing magnificence, he had an exemplary disciplinary record.
While ostensibly the problem was intellectual curiosity (and a well-stocked but poorly guarded lab), some looked for an explanation in Guy’s personal circumstances.
There was nothing to suggest the loss of the father he had never known had been particularly traumatic. Still, some wondered whether the widely reported loss of the arctic explorer, and more extraordinary discovery of his perfectly preserved frozen remains some years later, might have inspired both Guy’s love of science, and its particular manifestation.
Eventually, it was all too much. Guy was permanently excluded. He and his mother sought an Independent Review, and invoked the new right, found in Regulation 25, to have the school “appoint (at its own expense), for the purpose of (the) review, a SEN expert to provide impartial advice on how special educational needs may be relevant to the decision to exclude permanently”.
As the school did not believe SEN to be an issue, and it had not previously been raised by Guy or his mother, it was a little unsure of what the SEN expert would do. They waited until the review, whereupon the SEN expert advised the IRP that she had reviewed all Guy’s school and medical records, had interviewed him and his mother, and had concluded that Guy had latent emotional issues, which manifested themselves in the thrill-seeking of his ballistic episodes and that the school really should have looked into this further, and might have avoided the exclusion by appropriate counselling.
The IRP indicated it had to quash the exclusion in these circumstances, but at the school’s request agreed to adjourn its decision for 24 hours to receive written representations on behalf of the school on the correct legal approach, which I summarise below.
What SEN are relevant under the Code?
Tucked away in a footnote to the definition of SEN advisor, the Regulations state that “special educational needs” has the same meaning as in section 312 of the Education Act 1996. The Act provides that:
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A child has “special educational needs” if he has a learning difficulty which calls for special educational provision to be made for him.
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A child has a “learning difficulty” if he has a significantly greater difficulty in learning than the majority of children of his age.
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A child has a “learning difficulty” if he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority.
Were Guy’s emotional issues SEN?
In short, no. Clearly, this student had no difficulty making use of educational facilities. Disability or significantly greater difficulty in learning does not cover unusual or particularly challenging behaviour, emotions or circumstances which do not impede educational access.
“Special needs” alone are insufficient, without the “educational” component. For example, a child who is unmotivated or disruptive because of bereavement is not to be understood to have an SEN unless it has caused a condition, say clinically diagnosed depression, which impedes access to learning.
A condition which leads to behaviour causing exclusion might be a need affecting education, but not merely because it leads to exclusion. Otherwise, all excluded students might be said to have such a need.
Of course, learning difficulties/disabilities might manifest themselves in emotional and behavioural problems, but emotion and bad behaviour are not of themselves enough.
What should the IRP do?
The IRP had to come to its own conclusions about Guy and SEN, the expert was merely an “advisor”. The law also limits the scope of that advice. First, the regulations state that: “The expert’s functions … do not include making an assessment as to whether the pupil has special educational needs.”
“Assessment” should be understood more broadly than merely a statutory assessment, and the restriction understood to mean that the expert is not to say whether they think the pupil has SEN.
Where there is no recognised SEN, the Code sets out the approach the expert should take. It states: “Where the school does not recognise that a pupil has SEN, the SEN expert should advise the panel on whether he/she believes the school acted in a legal, reasonable and procedurally fair way in respect to the identification of any special educational needs that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion.”
Advising on whether the school has acted properly as regards identification might extend to noting the indicators which existed at the time.
Whether advising on the way that SEN was, or was not, identified, or was considered in the exclusion process when recognised SEN exists, the scope for criticising the school is highly limited, and should not extend to general speculation about how any SEN issues might have had an impact.
The Code also states: “The SEN expert should not criticise a school’s policies or actions simply because he/she believes a different approach should have been followed or because another school might have taken a different approach.”
This mirrors the provisions of the new regime limiting the powers of the IRP to quash exclusion only to where the error is one which no sensible school could have made. In dealing with the approach of the expert, the Code states that it is when the school falls short on this test that the expert should “…advise the panel on the possible contribution that this could have made to the circumstances of the pupil’s exclusion”.
From my experience, both SEN experts and IRPs need to be reminded of this limitation on the expert’s input clearly. Otherwise schools risk SEN advice which deals extensively with how things could have been dealt with better. This could affect the view of the IRP inappropriately, and encourage families to pursue other remedies, for example for alleged disability discrimination.
It is worth noting the use of the term SEN “recognised” by the school. This need not be by way of statement or expert report – any level of recognition would be relevant.
A possibly overlooked part of the Code relating to the SEN expert deals with the evidence which they are permitted to have regard to: “The SEN expert should base their advice on the evidence presented to the panel.”
Given that the IRP’s function is to scrutinise the decision of the school on the basis of the evidence available, or reasonably available, to it, this suggests that the Code does not expect an expert to advise the IRP in the way they did in Guy’s case, having had regard to medical records which had not been produced previously to the school and an interview with Guy and his mother.
What if the expert goes beyond the role?
If the expert produces evidence which, though beyond their role, is something which, if available to the school before might have affected the exclusion, must the IRP simply ignore it? For example, in Guy’s case information about his latent emotions, even if not SEN.
This depends on the Code’s rules about when an IRP can look at evidence which was not previously presented to the governors. The test is whether this new evidence was reasonably available at that time. If it was, then it should have been presented then, and it would not be right for it to be presented only at the IRP stage. It is probably reasonable for parents not to pay for expert assistance to help their case before the governors. Therefore, an IRP is likely to regard the new evidence from the SEN expert which goes beyond their strict role as something it can (and probably should) consider.
However, these rules, while not the clearest, strongly suggest that new evidence can only be relied upon to support a referral back to the discipline committee to reconsider in the light of the new evidence – not to quash the decision. This was the outcome in Guy’s case.
How best to ‘manage’ the SEN expert
There are no universal rules for this, and much will depend on the particular circumstances. For example, it might be thought that encouraging the expert to produce a short written report could help, but in same cases this could become but a further bone of contention and encourage false hope in the family.
Most important is to have a clear statement of how SEN was considered at each stage, supported by key documents; and to have a clear idea of what the SEN expert’s role is, and be prepared to explain that confidently to the IRP where necessary.
In this it probably does no harm to provide a summary in your written representations. You cannot trust to the expert, clerk or IRP to get this right, and if they don’t, the risks of a muddled decision are significant. SecEd
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Richard Wilkins is a partner at Berrymans Lace Mawer LLP. Email richard.wilkins@blm-law.com