The Guardian has recently reported a successful claim for disability discrimination before the Special Educational Needs and Disability Tribunal.
This is relevant for all families facing difficulties with schools applying zero-tolerance behaviour policies.
In this case, the child had been diagnosed with ADHD, epilepsy and autism traits was fully supported through his Primary School with speech and language therapist, educational psychologist and specialist teacher support and leaves for secondary school placement with high confidence after academically hitting targets for SAT exams. He did not, however, have a Statement of Special Educational Needs or Education Health and Care Plan. This meant that he was entirely reliant on his school understanding his needs, and complying with their duties under the Equality Act 2010.
When the boy in question moved to secondary school he joined an Academy. The Academy, like many schools, operated (operates) a ‘zero tolerance’ behaviour policy and due to his ADHD the child soon found himself breaching areas of the policy due to his SEN. A number of the breached were very minor; amounting to the colour of his socks. Throughout the year, the boy received increased numbers of negative marks for behaviour. His parents asked the school to seek advice from an educational psychologist to provide advice about how to support him. Despite this, he was not provided with any additional support.
In his first year the child fell foul of the behaviour policy just three times, this increased to twenty in his second year and 28 in his third year, just two days into his fourth year the child was excluded for 2 days, five further exclusions followed and ultimately a permanent exclusion left the child out of school and his confidence at an all time low. At no point did the school seek to secure additional help or support for his SEN.
Following the permanent exclusion his family brought a claim for Disability Discrimination in the Special Educational Needs and Disability Tribunal (SENDIST). They felt that the lack of intervention and support for his SEN was discrimination as the school had permanently excluded the child without making any reasonable adjustments for his disabilities.
The trial took place over two days and the judgment found that the school’s rigid application of the behaviour policy was a failure to make reasonable adjustments for the child because of his disability. The judgment stated “The question of (Child’s) actual education appears to have become secondary to the zero-tolerance policy of the school in relation to his behaviour” and “with the result that a boy of average cognitive ability was not making the progress which potentially he could have been making”
The School were ordered to write a letter of apology to the child and ordered to train staff in positive behaviour management and the impact on behaviour of typical neuro-developmental disorders, such as ADHD. The tribunal felt that advice from an Educational Psychologist should have been sought by the school to ensure that it had done all it could to prevent the exclusions.
As specialist education solicitors, we see these situations very often. Pupils with special educational needs are substantially more likely to face exclusion than pupils without SEN. It is very common for us to assist parents with cases where the child is unable to access education due to exclusion. In our experience, the higher level of exclusions for children with SEN is a result of unmet need, as was the situation here. Depending on the age and needs of the child this can have a wider impact of falling further behind with academic achievement and being at a high risk of not being able to secure appropriate provision for any unmet needs without a suitable school placement.
If you have a child that is at risk of permanent exclusion and seems to always be falling foul of the schools zero tolerance behaviour policy then your child may have unidentified or unmet SEN.
If you feel that your child needs to have any SEN identified or support put in place to prevent exclusion then please do not hesitate to contact our specialist team of education solicitors on 0333 202 7175.