Inclusion Now 66

Legal Question

This legal question was posed by Navin Kikabhai (ALLFIE) and answered by Victoria Higgins from Simpson Millar

My son was recently permanently excluded from school, after five months of fixed-term exclusions. This followed a fight with another pupil, who was not excluded in any way. My son has been formally diagnosed with dyslexia and, recently, ADHD. I’ve been asking for an Education, Health and Care plan for 12 months, which the school have not acted on. I’ve also appealed against the permanent exclusion, which the head teacher has now reversed. I have evidence the school fabricated and falsified information (including my signature agreeing to my son attending an Alternative Provision!), to suit their reasons for my son’s permanent exclusion. During a further three weeks waiting for his reinstatement, the school have ignored my emails. In total my son has been without any education whatsoever for 4 months, and the school have done nothing to re-integrate him. They’ve now offered a vocational college placement for 3 days a week, saying nothing about the remaining 2 days. What is my legal position?

I am sorry to hear that your son has faced such an extensive period of exclusion from school. If you asked the governors of the school to review the decision, then the governing board is required to set out its reasons for reversing the permanent exclusion in sufficient detail, so that all parties can understand why the decision was made. However, a head can reverse their own decision before this stage. If they do so, then they don’t need to give reasons.

When a child of compulsory school age (5 – 16) is suspended from school for more than five school days, the governors of the school must arrange suitable full-time education from the sixth day of the suspension. If a child receives multiple suspensions in a row, the days of the suspension will accumulate for the purposes of this duty. For permanent exclusions, it becomes the responsibility of the Local Authority rather than the school to arrange suitable full-time education.

The school are now offering a placement which does not amount to full-time education. If your child is of compulsory school age, then the Local Authority, rather than the school has a duty under section 19 of the Education Act 1996 to ensure that he is provided with suitable full-time education. That education could be in an alternative school or otherwise, depending on what is in the best interests of the child. The legal route of challenge in this scenario is judicial review, which is a way to challenge an unlawful decision by a public body. You should seek legal advice on this. Legal aid can be available in the child’s name in cases of this nature. Judicial Review is only appropriate for failures which are ongoing. They will not address past failings.

In relation to the school falsifying information, in our experience unfortunately it is unlikely that the courts would be willing to consider the issue. It may be a good idea to make a complaint to Ofsted regarding the general conduct of the school, including the fact that they have kept incorrect personal data about you and your son. The Information Commissioner may also investigate if you report the issues to them. The Information Commissioner would expect you to exhaust the school’s own complaints process first before reporting the matter to them.

With regard to whether a Local Authority can or should be intervening in a school complaint, this depends on the type of school but also the nature of the complaint. If the school is maintained by the Local Authority, then the complaint will escalate to them if not resolved at school level. This is not the case for an Academy school, and you would generally only expect the Local Authority to be involved if the complaint concerned safeguarding.

In relation to EHCPs, a parent is allowed to directly make a request to the Local Authority to carry out an Education, Health and Care needs assessment. This is for the Local Authority to determine whether the child or young person needs an EHCP. It is very disappointing that the school has not cooperated with this, however, we would recommend that you approach the Local Authority directly to request the assessment as it is not within the school’s power to ‘refuse’ the request. Looking at your situation, we would suggest that your efforts are likely to be better spent trying to secure an EHCP with the Local Authority than with the school at this stage.

This Legal Question was posed by Navin Kikabhai (ALLFIE) and answered by Victoria Higgins, Simpson Millar Solicitors