School exclusions and pupils with SEN

Children with special educational needs (SEN) are 5 times more likely to receive a permanent exclusion than pupils with no known SEN. While the rate of permanent and fixed-period exclusions has come down, there is clearly more to be done to ensure that children with SEN are getting the right support in schools.

We receive many enquiries from parents of children with SEN saying their child has been excluded from school. The latest statistics from the Department for Education (DfE), Permanent exclusions and suspensions in England, published in July 2021, found that exclusion rates are higher among pupils with SEN.

Exclusion statistics

The rate of permanent exclusions has decreased. At 5,100, there were almost 3,000 fewer permanent exclusions in 2019/20 than in 2018/19. The rate of suspensions (also known as fixed-period exclusions) has also decreased from 438,000 in 2018/19 to 310,000 in 2019/20. This is the equivalent of 376 in every 10,000 pupils.^[1]

As in previous years, exclusion rates are higher for pupils with SEN. The permanent exclusion rate for pupils with an education, health and care plan (EHCP) is 0.10, and for pupils with SEN but with no EHCP (SEN support) is 0.20, compared to 0.04 for those without SEN.

The fixed-period exclusion rate is also higher at 11.70 for pupils with EHCPs and 10.98 for pupils on SEN support, compared to 2.43 for those without SEN.

The highest rates are amongst those with a primary type of need recorded as social, emotional and mental health, at 0.61 for permanent exclusions and 33.04 for fixed-period exclusions. This is in line with previous years.

What some schools and parents may not realise is that informal or unofficial exclusions such as reducing a pupil’s timetable because the school cannot meet needs or sending a pupil home to ‘cool off’, are not lawful, even if the parents have agreed to it. As set out in Section 51A of the Education Act 2002 (as amended by Section 4 of the Education Act 2011 Exclusion of pupils from schools in England), only the head teacher of a school or principal of an academy can make the decision to exclude a pupil, and contrary to popular belief, there are only two types of exclusion which are lawful: permanent and fixed-period.

Fixed period exclusions:

Fixed-period exclusions are where the pupil is temporarily removed from the school. Any series of fixed-period exclusions must not exceed 45 days for the school year, even if the pupil has changed schools. Schools should take reasonable steps to set and mark work for the first 5 school days. If the pupil has more than 5 consecutive school days of exclusion, the governing board must arrange for suitable full-time education from the sixth school day. School should have a strategy for reintegrating pupils that return to school following the fixed-period exclusion, and for managing their future behaviour.

Permanent exclusions:

Permanent exclusion means the pupil is expelled from the school. The statutory Exclusions Guidance issued by the DfE Exclusion from maintained schools, Academies and pupil referral units in England states that a decision to exclude a pupil permanently should only be taken:

• In response to serious 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

The local authority must arrange suitable full-time education for the pupil to begin no later than the sixth school day of the exclusion.

Pupils with SEN

A head teacher can exclude any pupil, even if they have SEN or a disability. However it is unlawful to exclude (or increase the severity of exclusion) a pupil on the grounds that they have additional needs or a disability that the school feels it is unable to meet.

Children with SEN are especially vulnerable to being excluded, as they can exhibit ‘difficult’ behaviour, which can be an indication of unmet needs. The DfE exclusion statistics reveal that persistent disruptive behaviour continues to be the most common reason for both permanent and fixed-period exclusions (both 34%), and children with social, emotional and mental health needs are the most likely to receive exclusions. We often find that the behaviour that led to the exclusion could have been avoided if adequate support had been put in place to meet the child’s needs, which is one of the reasons why obtaining an EHCP can be vital.

If disruptive behaviour is related to a child’s SEN, the school should look at identifying and addressing the underlying causes of the behaviour, assessing what support the pupil requires, and considering alternative provisions that can be put in place. The school could, for example, increase SEN support, seek specialist advice from behaviour and educational psychology services, or discuss with the parents about requesting an EHC needs assessment.

Paragraphs 23, 24 and 25 of the DfE Exclusions Guidance contain specific statutory guidance to head teachers about exclusions of pupils with EHCPs. Children with EHCPs are particularly vulnerable to the impact of exclusion; exclusion should be the last resort. For a pupil with an EHCP, the school should consider arranging an early Annual Review or interim/emergency review of the Plan. A permanent exclusion means that the EHCP must be amended, because the pupil can no longer attend the named school. Paragraph 47 of the Exclusions Guidance states: “where a pupil has an EHC Plan, the local authority may need to review the Plan or reassess the child’s needs, in consultation with parents, with a view to identifying a new placement.”

The Government has proposed a £1 billion school investment in 2022-2023 for children and young people with complex needs (SEND Green Paper, 29 March 2022), which may lead to greater support and provision in schools for children with SEN.

We can help

Our Education team at Boyes Turner specialise exclusively in SEN; supporting parents through the EHCP process and helping children with learning disabilities get the extra help and support they need, in the right school for them. If your child has been excluded, or you are concerned they will be excluded as a result of their SEN, we can help you and your child get the best possible support from both schools and local authorities.