15 November 2018 weekly update

Dear Colleagues

Exclusions update and an Upper Tribunal ruling for information and sharing

I would like to take this opportunity to update you on Kent’s exclusion outcomes for the 2017/18 academic year:

• Permanent Exclusion: Due to most schools’ inclusive approaches in actively finding a good alternative to permanent exclusion (PEX), in 2017/18 we reduced the number of PEX to 53, which is the lowest in the South East Region. Of the 53 PEXs, 25 were from Primary School, 5 less than last year (20); and 28 from Secondary Schools, 22 less than last year (50). This is a welcome development.
• Fixed-term Exclusion: There were 10,675 fixed term exclusions (FTE) for the same period. Although Kent schools’ overall FTE rate is still lower (better) than the national average, there is an increase in Secondary Schools’ exclusions, up 794 exclusions from 7,838 to 8,632 exclusions. The increase in Secondary Schools’ FTE was highly concentrated in a few schools. In contrast, Primary phase’s exclusions shows a decrease, bucking the national trend.

In general Kent has a performance that is better than the national average in relation to pupil exclusions. I would like to thank you all for working in partnership with the local authority to support our vulnerable learners.

In August 2018, the Upper Tribunal made a ruling on a case in relation to an autistic pupil who was excluded for 1.5 days for physically assaulting a school staff member. Some Headteachers in Kent asked Kent County Council to issue a statement to advise the implications of the ruling on the local schools.

I would like firstly to explain what our Legal Service has presented to me on the details of this case. In August’s Upper Tribunal ruling, the Judge overturned the original decision of the First Tier Tribunal and found that there was a loophole in the Equality Act, which meant that schools did not have to make reasonable adjustments for disabled children when they “had a tendency to physically abuse”. The Judge concluded that in the context of education, the Regulations (the Equality Act 2010 ( Disability) Regulations 2010, specifically Regulation 4(1)(c)) violated the rights of children with a recognised condition that is more likely to result in a “tendency to physically abuse” but that they should not be discriminated against.

In terms of implications, this ruling means that children cannot be excluded for behaviour which is directly or indirectly connected to their disability and/or special educational needs if alternative measures have not been taken to implement the correct provision to avoid an exclusion. Such exclusions would place the school at significant risk for reputational damage, would be rendered unlawful and would be financially costly in the event of the school having to make any financial compensation.

Although the Department for Education’s latest exclusion guidance was issued before the court ruling and no amendment to the guidance is imminent, the ruling has its own legal implications for similar exclusion cases. The UK common law system is such that most courts are bound by their own previous decisions in similar cases and all lower courts should make decisions consistent with the principals arising from the decisions of the higher courts.

I would strongly advise that this statement is shared with every relevant member of staff in your school and that if they do require any further information about this and/or training then those arrangements should be made as necessary.

Matt Dunkley CBE
Corporate Director
Children, Young People and Education