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Education law update

October 2017

1. This document deals with three issues for which there have been developments over the last

six months:

a. Transport

b. Ceasing to maintain an EHC Plan

c. Exclusions

Transport

2. An issue that has troubled the Upper Tribunal over the last year has been transport, and in

particular transport for those who are over compulsory school age. The questions to be asked

are:

a. whether transport constitutes special educational provision, and therefore is within

the Tribunal’s jurisdiction; and

b. what the extent of the local authority’s duty to provide transport is to those over

compulsory school age.

3. These issues have been considered in two recent cases before the Upper Tribunal:

Staffordshire County Council v JM [2016] UKUT 0246 and AA v London Borough of Haringey

[2017] UKUT 0241.

4. Before those cases are specifically dealt with, it is helpful to recap on the duties on the local

authority to transport children to and from school. This area is governed by a complex set of

statutory provisions in the Education Act 1996, and it differs between those of compulsory

school age, those who are 16-18 and those who are 19 and over.

Children up to 16 years old

5. The concept of “eligible children” is key to the local authority’s duties in relation to transport.

Paragraph 2 of Schedule 35B EA 1996 includes the following as eligible:

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“A child falls within this paragraph if–

(a) he is of compulsory school age and is any of the following–

a child with special educational needs;

a disabled child;

a child with mobility problems,

(b) he is a registered pupil at a qualifying school which is within walking distance of his

home,

(c) no suitable arrangements have been made by the [local authority] 2 for enabling him to

become a registered pupil at a qualifying school nearer to his home, and

(d) having regard to whichever of the following are relevant–

his special educational needs;

his disability;

his mobility problems,

he cannot reasonably be expected to walk to the school mentioned in paragraph (b).”

6. Paragraph 3 names equivalent children who are placed at somewhere “other than school” by

reason of illness, exclusion or otherwise1.

7. The duty to such “eligible children” is set out in section 508B:

“(1) A local authority in England must make, in the case of an eligible child in the

authority's area to whom subsection (2) applies, such travel arrangements as they

consider necessary in order to secure that suitable home to school travel arrangements,

for the purpose of facilitating the child's attendance at the relevant educational

establishment in relation to him, are made and provided free of charge in relation to the

child.

(2) This subsection applies to an eligible child if–

1 See section 19 EA 1996

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(a) no travel arrangements relating to travel in either direction between his home and the

relevant educational establishment in relation to him, or in both directions, are provided

free of charge in relation to him by any person who is not the authority, or

(b) such travel arrangements are provided free of charge in relation to him by any person

who is not the authority but those arrangements, taken together with any other such

travel arrangements which are so provided, do not provide suitable home to school travel

arrangements for the purpose of facilitating his attendance at the relevant educational

establishment in relation to him.”

8. The travel arrangements are most often transport, but this could also be (with the consent of

the parent) an escort, payment of reasonable travel expenses or the payment of allowances2.

The local authority does not necessarily have to provide door to door transport, and it can be

lawful to use pick up points other than at the home of an eligible child3. The transport will

generally only need to be at the start and end of the day4. In any event, the transport that is

arranged must be non-stressful5.

Sixth form age

9. Sixth form age means a young person under 19, or a young person who began a particular

course of education before 19 and continues to attend that course6. The only mandatory duty

on the local authority is set out in section 509AA EA 1996 to provide a transport statement as

to the arrangements for those of sixth form age:

“(2) The statement shall specify the arrangements for the provision of transport or

otherwise that the authority consider it necessary to make for facilitating the attendance

of persons of sixth form age receiving education or training—

(a) at schools,

(b) at any institution maintained or assisted by the authority which provides further

education or higher education (or both),

2 Section 508B(5) EA 1996 3 R (M and W) v London Borough of Hounslow [2013] EWHC 579 (Admin) at [22] 4 P v East Sussex County Council [2014] EWHC 4634 (Admin) 5 R v Hereford & Worcestershire ex parte P (1992) 2 FCR 732 6 Section 509AC(1)

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(c) at any institution within the further education sector,

(ca) at any 16 to 19 Academy, or

(d) at any establishment (not falling within paragraph (b), (c) or (ca) at which the authority

secures the provision of education or training under section 15ZA(1)

(3) The statement shall specify the arrangements that the authority consider it necessary

to make for the provision of financial assistance in respect of the reasonable travelling

expenses of persons of sixth form age receiving education or training at any establishment

such as is mentioned in subsection (2).

(4) The statement shall specify the arrangements proposed to be made by the governing

bodies of—

(a) schools maintained by the authority at which education suitable to the requirements

of persons over compulsory school age is provided, and

(b) institutions within the further education sector in the authority's area,

for the provision of transport for facilitating the attendance of persons of sixth form age

receiving education or training at the schools and institutions and for the provision of

financial assistance in respect of the travelling expenses of such persons…”

10. There is specific provision for those who are disabled7 or with learning difficulties. Section

509AB states:

“(1) A statement prepared under section 509AA shall state to what extent arrangements

specified in accordance with subsection (2) of that section include arrangements for

facilitating the attendance at establishments such as are mentioned in that subsection of

disabled persons and persons with learning difficulties or disabilities.

(2) A statement prepared under that section shall—

(a) specify arrangements for persons receiving full-time education or training at

establishments other than schools maintained by the local authority which are no less

7 Within the meaning of section 6 of the Equality Act 2010 – see section 509AC(5) EA 1996

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favourable than the arrangements specified for pupils of the same age attending such

schools, and

(b) specify arrangements for persons with learning difficulties or disabilities receiving

education or training at establishments other than schools maintained by the authority

which are no less favourable than the arrangements specified for pupils of the same age

with learning difficulties or disabilities attending such schools.”

11. The Department of Education have issued statutory guidance8 which makes the following

points in relation to those with special educational needs:

a. Where considering distance from home to establishments of education, the local

authority should take account of “the impact a learning difficulty or disability may

have on a young person’s ability to walk this distance, and the nature (including safety)

of the route, or alternative routes, which a young person could be expected to take”9.

b. The local authority should take account of its duty to encourage, enable and assist the

participation of young people with learning difficulties and/or disabilities up to the

age of 25 in education and training pursuant to section 68 of the Education and Skills

Act 200810.

c. The local authority should account for the fact a learner with a learning difficulty or

disability may take longer to complete a programme of learning and therefore should

extend the arrangements for provision of transport until this person has completed

the programme11.

12. Local authorities have a fair amount of discretion in how they provide transport to those who

are over compulsory school age. Many local authorities operate an independent travel

training scheme as a means of discharging its duty. Such schemes are “strongly

recommended” by the Department of Education Guidance12.

13. Where a local authority charges for transport, it must bear in mind its duties under the

Equality Act 2010. Where there is a flat rate charge for transport for those students who do

8 ‘Post-16 transport to education and training’ (February 2014) 9 Paragraph 13.3 10 Paragraph 14 11 Paragraph 17 12 Paragraph 18

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not have special educational needs, any charge to those with special educational needs which

is higher than the flat rate charge (because the transport is more expensive to the local

authority) is likely to be discriminatory. As such, any charge set at a rate proportionate to the

cost of transport is likely to be unlawful.

18-25 years

14. Like for those of sixth form age, the local authority has no directly enforceable duty to provide

transport. Section 508F deals with adult learners:

“(1) A local authority in England must make such arrangements for the provision of

transport and otherwise as they consider necessary, or as the Secretary of State may

direct, for the purposes mentioned in subsections (2) and (3).

(2) The first purpose is to facilitate the attendance of adults receiving education at

institutions—

(a) maintained or assisted by the authority and providing further or higher education (or

both), or

(b) within the further education sector.

(3) The second purpose is to facilitate the attendance of relevant young adults receiving

education or training at institutions outside both the further and higher education sectors,

but only in cases where the local authority have secured for the adults in question—

(a) the provision of education or training at the institution in question, and

(b) the provision of boarding accommodation under section 514A.

(4) Any transport provided under subsection (1) must be provided free of charge.

(5) In considering what arrangements it is necessary to make under subsection (1) in

relation to relevant young adults, a local authority must have regard to what they are

required to do under section 15ZA(1) in relation to those persons.

(6) In considering whether they are required by subsection (1) to make arrangements in

relation to a particular adult, a local authority must have regard (among other things) to

the age of the adult and the nature of the route, or alternative routes, which the adult

could reasonably be expected to take.

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(7) Arrangements made under subsection (1) by virtue of subsection (3) to facilitate full-

time education or training at an institution outside both the further and higher education

sectors must be no less favourable than the arrangements made for relevant young adults

of the same age for whom the authority secure the provision of education at another

institution.

(8) A local authority in England may pay all or part of the reasonable travelling expenses

of an adult—

(a) receiving education or training at an institution mentioned in subsection (2) or (3), and

(b) for whose transport no arrangements are made under subsection (1).

(9) In this section—

“adult” means a person who is neither a child nor a person of sixth form age,

“sixth form age” is to be construed in accordance with section 509AC(1), and

“relevant young adult” means an adult for whom an EHC plan is maintained.

Staffordshire County Council v JM [2016] UKUT 0246

15. Facts: H was 21 years old and lived with her parents. The institution named in her EHC Plan

was rather distant from her home. The local authority took the view it did not have an absolute

duty to make and pay for H’s travel costs and sought more information. But H’s representative

was non-cooperative. The FTT ordered the local authority to pay for transport costs. The local

authority appealed to the UT.

16. Judgment: The first issue Judge Lane dealt with was whether transport constituted special

educational provision, and therefore whether the FTT had jurisdiction over it at all. He found

it did not. He cited sections 20 and 21 CFA 2014 (on special educational needs and provision)

and set out:

23. It is clear from the wording of these provisions that a special educational need must arise

from a learning difficulty. It is also clear that the learning difficulty must call for special

educational provision.

24. On this language, it cannot be sensibly argued that a need for home to school transport

arises from a ‘learning difficulty’ in and of itself. Nor, on the wording, can home to school

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transport be classed as a form of special educational provision. As recognised in case law

examining the structure and language of the Education Act 1996, special educational provision

is distinct from the transport needed to access that provision. So, for example, in R v London

Borough of Havering ex parte K [1998] ELR 402 at 404-405, a case in which a parent wished

the Local Authority to take on responsibility for transporting her child at the beginning and end

of each to the school at which he was a boarder, Sedley J said:

‘The duty of the local authority to make such provision can be found (in principle, at any rate)

in two places in the Education Act 1996. One is at … s 324(5)(a)(ii)3 – transport being clearly

one form of non-educational provision. The other, however, is the more explicit provision in

section 509. Section 509(1) reads:

‘A local education authority shall make such arrangements for the provision of transport and

otherwise as they consider necessary o…for the purpose of facilitating the attendance receiving

education – (a) at schools

Although the Havering case involved different section 509, the principle is the same as in the

instant case. That principle was expressly approved by a Three Judge Panel of the Upper

Tribunal in Dudley MBC v JS [2011] UKUT 67 [32]. Dudley MBC v Shurvinton was itself upheld

in the Court of Appeal [2012] EWCA Civ 346). In MM & DM v London Borough of Harrow [2010]

UKUT 395 (AAC), one of the arguments raised by the parents was whether the school named

by the Tribunal was unsuitable for their daughter because the travel arrangements made by

the Local Authority were not, in the parents’ view, suitable. In dismissing this ground, Upper

Tribunal Judge Jacobs said at [27]:

‘Transport is not an educational need. However, it has to be taken into account. A placement

cannot be appropriate if the authority cannot provide suitable transport to the school.’

And at [29]:

‘However, the journey is not part of the children’s education. It does not have to provide an

opportunity to meet social or educational needs. It is merely a means of getting the children

from their homes to their school.’

25. This is not to say to say that issues about transportation are irrelevant. It depends on the

context. In cases in which the choice of school is in issue in respect of a child , the cost of

transportation is a matter which may be taken into account in deciding whether the parental

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choice or Local Authority choice of school is to prevail. In this appeal, even if H was still a child

for the purposes of the Education Act 1996 (which she is not), the issue was not the choice of

school…

27. My conclusion is that there is nothing in the wording of the sections cited above which

suggests that Parliament intended to change our understanding of these core terms. It follows

that I accept the Local Authority’s submission that the FtT erred in law by finding that

transportation to and from school was either a special educational needs or special

educational provision to meet such a need.

17. The Judge also looked at the actual duty on the local authority for those aged 19 and over,

and in particular in comparison to the duty to those of compulsory school age.

36 The Local Authority has a duty to make arrangements for H if they consider that to be

necessary having regard to all of the relevant circumstances. This is not a pure discretion.

Although the question of what is necessary is a matter for them, in deciding that question they

must exercise their judgment judiciously and in good faith. If they come to the conclusion that

it is necessary, they must make the necessary arrangements and the transportation must be

free of charge.

37 At the hearing, Mr Goudie distinguished the duty of the Local Authority under section 508F

from the more extensive duty owed to an eligible child under Schedule 35 of the Education Act

1996. He was, in my view, right to do so. A Local Authority has a duty to secure home to school

transportation for certain ‘eligible’ children (i.e. those who are not over compulsory school age,

section 579) under Schedule 35 of the Education Act 1996. The content of the duty varies from

paragraph to paragraph of the Schedule, but as a very broad generalisation, as regards

children with special educational needs, disabilities and mobility problems the Local Authority

must make available to them free transportation if (i) they cannot reasonably be expected to

walk to the school at which they are registered and (ii) there are no suitable arrangements to

register them at a school nearer to their home. There is no correlative provision for those in

the post-19 year old group.

18. Points to take away:

a. Transport does not constitute special educational provision and is therefore outside

the scope of the Tribunal’s jurisdiction. It is a matter for judicial review.

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b. The duty on the local authority to transport adult learners is weaker than the duty to

transport those of compulsory school age. The duty is to make arrangements they

consider to be necessary having regard to all of the relevant circumstances, and that

is a question that must be exercised judiciously and in good faith.

AA v London Borough of Haringey [2017] UKUT 0241 (AAC)

19. Facts: Adam, a child with a diagnosis of autistic spectrum disorder, had an EHC Plan which

named an independent special school. However, he was unable to walk to the school and

there was a dispute on suitable transport. The FTT cited Staffordshire, and concluded that it

had no jurisdiction to order a local authority to provide transport. Permission was granted by

the UT on the basis it was arguable Staffordshire was wrongly applied as that case dealt with

adults and the UT should consider the position in relation to children.

20. Judgment: The judge gave a relatively short judgment:

9. It is important to note that Staffordshire concerned an adult (age 21 at the time of the Upper

Tribunal decision) and that section 508F of the Education 1996, which was considered in that

decision, applied only to those over the age of 19. The decision of the Upper Tribunal was that

there could be no jurisdiction in such a case in the Firsttier Tribunal. That decision was not

about the case of a child and is not authority (nor does it claim to be) in respect of the position

of a child of Adam’s age.

10. However, certain more general statements were made and other authorities cited. In

relation to the predecessor provision of section 21(1) (above) Upper Tribunal Judge S M Lane

said (references are to paragraph numbers and the emphasis is mine): “23. It is clear from the

wording of these provisions that a special educational need must arise from a learning

difficulty. It is also clear that the learning difficulty must call for special educational provision.

24. On this language it cannot be sensibly argued that a need for home to school transport

arises from a learning difficulty in and of itself. Nor, on the wording, can home to school

transport be classed as a form of special educational provision. …”

11. There is nothing in these comments, and citations from other decisions to similar effect,

that I disagree with, but they go to questions of fact to be decided (on an appeal) by the First-

tier Tribunal. They do not go to jurisdiction. I am unaware of any authority that states in terms

that as a matter of law transport needs can never constitute a special educational need and

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that measures to deal with them can never in any circumstances whatsoever be specified in

the plan (or in the forerunner statements of a special educational need).

Conclusions

12. For the above reasons I consider that the First-tier Tribunal was in error of law in stating

that it had no jurisdiction to consider transport matters in this context and was in breach of

the rules of natural justice and fair procedure in refusing to hear argument on this from the

appellant’s legal representatives. It might well be that the panel could envisage no

circumstances in which it would accede to such arguments, and it might well be that the new

panel will reject them, but that is not the point. The First-tier Tribunal should have listened to

the arguments.

21. Comment: Although the judgement states it does not disagree with Staffordshire, it appears

to do just that. Whether transport constitutes special education provision is not affected by

the age of the child. The judge in this case gives no reason it should be different. It has long

been established, as set out in Staffordshire, that it is not a matter of special educational

provision. Because an appeal to the FTT can only be made in respect of special educational

provision13, an appeal cannot be made on the basis of transport. It therefore is outside the

jurisdiction of the FTT. The duty is set out in the Education Act 1996, and if a child’s parent or

a young person is dissatisfied with the provision that is a matter of judicial review of the

authority’s decision under that the relevant provision. In any event (and as implied by the UT

in this case) Staffordshire remains the law and should be followed.

Ceasing to maintain

22. As EHC Plans continue till a child or young person reaches the age of 25, many local authorities

are considering the issues of when it can cease to maintain. An important case in this area has

recently been decided by the Upper Tribunal, Buckinghamshire County Council v SJ [2016]

UKUT 294. Before I look at that case, I will first consider the relevant statutory material and

Code of Practice.

13 Section 51(2)(d)(ii) of the Children and Families Act 2014

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23. An EHCP will continue until the end of the academic year in which the young person turns

2514. Prior to this, the local authority may cease to maintain an EHCP only in the circumstances

set out by section 45 CFA 2014:

(1) A local authority may cease to maintain an EHC plan for a child or young person only

if—

(a) the authority is no longer responsible for the child or young person, or

(b) the authority determines that it is no longer necessary for the plan to be maintained.

(2) The circumstances in which it is no longer necessary for an EHC plan to be maintained

for a child or young person include where the child or young person no longer requires the

special educational provision specified in the plan.

(3) When determining whether a young person aged over 18 no longer requires the special

educational provision specified in his or her EHC plan, a local authority must have regard

to whether the educational or training outcomes specified in the plan have been achieved.

(4) A local authority may not cease to maintain an EHC plan for a child or young person

until—

(a) after the end of the period allowed for bringing an appeal under section 51 against its

decision to cease to maintain the plan, where no such appeal is brought before the end of

that period;

(b) after the appeal has been finally determined, where such an appeal is brought before

the end of that period.

24. The Code of Practice provides examples of where a local authority may no longer be

responsible for the child or young person:

9.201 The circumstances where a local authority is no longer responsible for the child or

young person include where any of the following conditions apply (subject to paragraphs

9.202 and 9.203 below:

14 See sections 37(1), 46 and 83(2) CFA 2014 where the definition of “young person” is “over compulsory school age but under 25”.

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• A young person aged 16 or over leaves education to take up paid employment

(including employment with training but excluding apprenticeships)

• The young person enters higher education

• A young person aged 18 or over leaves education and no longer wishes to engage in

further learning

• The child or young person has moved to another local authority area

25. The circumstances in which a local authority can cease to maintain an EHCP Plan on the basis

of that it is no longer necessary are relatively narrow. The Code of Practice states:

9.200 …When deciding whether a young person aged 19 or over no longer needs the

special educational provision specified in the EHC plan, a local authority must take

account of whether the education or training outcomes specified in the EHC plan have

been achieved. Local authorities must not cease to maintain the EHC plan simply because

the young person is aged 19 or over”

26. In addition, the Code of Practice makes clear that simply because a placement ends does not

mean the local authority can automatically cease to maintain:

9.202 Where a young person of compulsory school or participation age – i.e. under the

age of 18 – is excluded from their education or training setting or leaves voluntarily, the

local authority must not cease their EHC plan, unless it decides that it is no longer

necessary for special educational provision to be made for the child or young person in

accordance with an EHC plan. The focus of support should be to re-engage the young

person in education or training as soon as possible and the local authority must review

the EHC plan and amend it as appropriate to ensure that the young person continues to

receive education or training.

9.203 Where a young person aged 18 or over leaves education or training before the end

of their course, the local authority must not cease to maintain the EHC plan unless it has

reviewed the young person’s EHC plan to determine whether the young person wishes to

return to education or training, either at the educational institution specified in the EHC

plan or somewhere else. If the young person does wish to return to education or training,

and the local authority thinks it is appropriate, then the local authority must amend the

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EHC plan as necessary and it must maintain the plan. The local authority should seek to

re-engage the young person in education or training as soon as possible

27. Where a local authority is considering ceasing to maintain an EHCP, it must consult the child’s

parent or young person and the placement named in the EHCP15. Should the local authority

cease to maintain an EHCP, an appeal can be made to the FTT16. In this event, the local

authority must continue to maintain the EHCP until the time has passed for bringing an appeal

or, if an appeal is made, the conclusion of that appeal17.

28. When considering whether to cease to maintain, a local authority should consider the

following:

a. The outcomes in the EHCP and whether these have been achieved

b. Look at any of the young person’s goals for the future and see how provision would

work towards them

c. Look at care and health provision and see whether this could meet the future goals

d. Whether, in the future, the goals could be met by health and social care rather than

an educational placement, and therefore a ceasing decision may be justified.

Buckinghamshire County Council v SJ [2016] UKUT 294 (AAC)

29. Facts: Ryan was a young person with diagnoses of autistic spectrum disorder, hyperacusis,

developmental co-ordination disorder and significant sensory processing difficulties. He

functioned at a pre-school level. Ryan previously had a statement however did not issue a

statement following an assessment under the CFA 2014 because “remaining in formal

education for a further period will not enable Ryan to make any significant progress and/or

better achieve the transition to adulthood outcomes of gaining employment, living

independently, participating in his community or maintaining good health”. The FTT allowed

an appeal, which the local authority appealed to the UT.

30. Judgment: As to the need to show progress for an EHC Plan to be secured, Judge Jacobs set

out:

15 Section 45(4)(b) CFA 2014 16 Section 51(2)(f) CFA 2014 17 Code of Practice paragraph 9.209

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30. To begin with, I reject any suggestion that the attainment of qualifications is an essential

element of education. For many of those to whom the 2014 Act and Regulations apply,

attaining any qualifications at all is not an option. That does not mean that they do not require,

or would not benefit from, special educational provision.

31. The tribunal was entitled to find that Ryan could still benefit from educational provision

and that the therapies would help in that context. There was no dispute about the therapies

that would benefit Ryan. The issue was whether they should be delivered in a care environment

or an educational one. There may be cases in which a young person is not going to achieve

anything if education continues. Ryan’s parents believed that he could learn more if

appropriate provision were made. They based that on what they had seen when Ryan was at

his last school; there was evidence that his teachers there had been of the same opinion. The

local authority’s own educational psychologist was of the same view. Why else would she say

that Ryan needed a learning environment? It is true that Ryan was functioning only at a pre-

school level. That meant, no doubt, that any further achievements would be small. That does

not mean that they would not be valuable for Ryan in his adult life. The tribunal found as a

fact that it would and there was evidence to support that conclusion…

33. The tribunal was entitled to find that a plan was necessary. The tribunal had to decide that

issue as a practical matter. It may be that, theoretically, it might have been possible to achieve

the outcomes through the care budget. In reality, that was not happening. Ryan was not taking

advantage of the facilities and activities that were on offer at the care home and the staff had

not succeeded in getting him involved. The evidence showed that Ryan spent his time in his

room. As Mr Wolfe put it, the issue was not about what Ryan needed but about access to it.

Necessity has to be judged practically and in light of the reality, not by reference to

attainments that are more theoretical than real. He cited two decisions in support of the

proposition that a plan may be necessary in order to ensure access to provision: Manchester

City Council v JW [2014] ELR 304 at [30] and MC v Somerset County Council [2015] UKUT 0461

(AAC) at [19] and [21]. They support the tribunal’s approach.

31. Points to take away:

a. This case makes clear that qualifications are not an essential element of education. A

local authority may not, therefore, cite the inability to obtain qualifications as a reason

not to issue a plan, or to cease to maintain a plan.

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b. Even if minimal progress is achieved, pursuant to targets in an EHCP, then the Tribunal

would unlikely uphold a local authority’s decision to cease to maintain.

Exclusions

32. It has been a fairly busy summer in terms of exclusions. The policies of many schools to push

sixth formers who did not attain a certain level, such as St Olave’s, hit national headlines. The

issue of exclusions will generally only come to the local authority’s attention if an Independent

Appeal Panel is convened.

33. There are two issues that will be addressed here:

a. New Department for Education exclusion guidance

b. R (LB) v IAP of Newport City Council [2017] EWHC 2216 (Admin)

New exclusion guidance

34. The Department of Education has released new exclusion guidance, in force from September

2017, entitled ‘Exclusion from maintained schools, academies and pupil referral units in

England: Statutory guidance for those with legal responsibilities in relation to exclusion’.

35. There are two points which will be addressed as to the changes in the wording. Firstly,

paragraph 3 now states:

“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.”

36. It goes on to state:

“34. If a child is excluded for a further fixed-period following their original exclusion, or is

subsequently permanently excluded, the head teacher must inform parents without delay

and issue a new exclusion notice to parents.”

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37. This targets the unlawful practice of schools making a fixed term exclusion and then

converting it to a permanent exclusion without following the proper procedures for a

permanent exclusion (for example ensuring it is a last resort, or fulfilling the criteria in the

guidance).

Excluding students with SEN

38. It remains an issue that exclusion rates for those with EHC Plans is extremely high. In the

Department of Education figures for 2015/6, pupils with SEN support had the highest

permanent exclusion rate and were almost 7 times more likely to receive a permanent

exclusion than pupils with no SEN.

39. Special provision is made for students with SEN in the guidance (which is similar to previous

guidance):

“23. As well as having disproportionately high rates of exclusion, there are certain groups

of pupils with additional needs who are particularly vulnerable to the impacts of exclusion.

This includes pupils with EHC plans and looked after children. The head teacher should, as

far as possible, avoid permanently excluding any pupil with an EHC plan or a looked after

child.

24. Schools should engage proactively with parents in supporting the behaviour of pupils

with additional needs. In relation to looked after children, schools should cooperate

proactively with foster carers or children’s home workers, the local authority that looks

after the child and the local authority’s virtual school head.

25. Where a school has concerns about the behaviour, or risk of exclusion, of a child with

additional needs, a pupil with an EHC plan or a looked after child, it should, in partnership

with others (including the local authority as necessary), consider what additional support

or alternative placement may be required. This should involve assessing the suitability of

provision for a pupil’s SEN. Where a pupil has an EHC plan, schools should consider

requesting an early annual review or interim/emergency review.”

40. One point which is not properly expressed in the Guidance (which is important for local

authorities) is the consequence of excluding a child with SEN. The Guidance states:

“47. In addition, 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

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identifying a new placement [Footnote: Section 44 of the Children and Families Act 2014

provides for reviews and reassessments, with further detail in Part 2 of the Special

Educational Needs and Disability Regulations 2014.]”

41. Paragraph 9.202 of the SEN Code of Practice makes clear that where a child is under 18 and is

excluded, the LA

“must not cease their EHC Plan, unless it decides that it is no longer necessary for special

educational provision to be made for the child or young person in accordance with an EHC

Plan. The focus of support should be to re-engage the young person in education or

training as soon as possible and the local authority must review the EHC plan and amend

it as appropriate to ensure that the young person continues to receive education or

training”.

42. Where a child with SEN is excluded, this will necessitate a change in the EHC Plan. This is to be

treated as an amendment following a review (even if the local authority does not actually

carry out a review)18.

43. In amending in such a fashion, the child’s parents or young person has a right to request the

authority to secure that particular school or institution is named on the plan19. As generally

with a parental right to request this is a powerful mechanism. In summary:

a. If the parent or young person requests a maintained school, academy or other type

of placement listed in section 38(3) CFA 2014, then the local authority must name that

placement unless it is unsuitable, or incompatible with the provision of efficient

education for others or efficient use of resources20.

b. If the parent or young person requests an independent school, that must be named

unless it is unsuitable, or incompatible with the provision of efficient instruction and

training or unreasonable public expenditure21.

c. If the parent or young person requests a mainstream placement, that must be named

except where it would be incompatible with the provision of efficient education for

18 Regulation 28 of the SEND Regulations 2014 19 Regulation 22(2)(b) of the SEND Regulations 2014; section 38(2)(b)(ii) of the CFA 2014 20 Section 39(4) CFA 2014 21 Section 9 Education Act 1996

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others and such incompatibility could not be prevented through the taking of

reasonable steps.

44. For further information on the effect of a placement request, please see the Noddy Guide to

SEN.

R (LB) v IAP of Newport City Council [2017] EWHC 2216 (Admin)

45. Facts: LB was excluded from her school. Following a verbal altercation between two groups of

girls. LB was escorted to one part of the school, and there was some dispute in the evidence

as to whether she had pushed the door against a teacher, Mrs Sullivan, or whether she had

hit one of the other girls. The school had attempted to organise a managed move. The

exclusion was upheld by the governing body, and then the local authority’s independent

appeals panel.

46. Judgment: HHJ Curran (sitting as a Deputy High Court Judge), found the IAP had acted

unlawfully for the following reasons:

a. It had not addressed whether there was “serious actual violence” which was a

criterion cited by the relevant Welsh guidance (there is no equivalent in the guidance

for England).

“23 The words to be construed need not be subjected to the rigours of the principles

of statutory construction since that they are not the words of a statute. They are words

of guidance only. What they do provide, however, is the need for a clear focus.

Essential to that focus, it seems to me, is the concept of " serious actual violence " (this

not being a case of threatened violence) as it would be understood by a reasonable

and independent appeal panel.

24 If the IAP had taken the view in this case that relatively minor actual violence may

constitute an exceptional case of " serious actual violence " justifying permanent

exclusion, by reason of the surrounding circumstances in terms of insolence,

premeditation, or other factors, they should, in my judgment, have said so in terms,

giving reasons for their decision.”

b. LB had argued that the proportionality (as cited in the relevant guidance) was not

properly considered – particularly the risk of LB behaving like this again, or the means

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available to the school to reduce or avoid this risk. The Court accepted the IAP could

have set out the balancing exercise in more detail.

c. Whilst the school had said it offered LB’s mother a managed move, there was

uncontradicted evidence from LB’s mother that the concept of a “managed move”

was never explained to her, rather she had simply been given a form to sign. The Court

accepted the argument that the IAP failed to properly deal with the point of whether

a managed move had been offered

47. Point to take away: emphasise to IAPs the need for proper reasons, particularly where

findings are required on certain phrases in the guidance.

Leon Glenister

Landmark

3 October 2017