Previously, many CIFE colleges would have been confident offering a place to students with a variety of special educational needs and disabilities (SENDs) and arranging appropriate provision, according to EHCPs (educational health care plans) or equivalent. Special provision for SEND students was made primarily through the individual attention provided by the college, including, of course, small class sizes; high functioning autistic children, for example, have often enjoyed particular success because of this feature alone. If a college thought it could not make reasonable provision/adjustments for such students, it could decline the offer of a place without concern of attracting an accusation of discrimination; for example, it might be cautious about accepting a student who was given to extreme and uncontrollable physical or verbal outbursts.

Excluding students whose behaviour had violated accepted norms by, for example, the use of abusive language, bullying and physical violence was rarely in question, even if such behaviour could be attributed to the SEND. With particular regard to violence, schools were covered by an exemption in the Equality Act 2010 stating that schools are not obliged to make reasonable adjustments in the case of a SEND which inclines to physical violence.

Now, providing for SEND students is more contentious. Indeed, one must be mindful about rejecting the applications of certain students in case rejection may be deemed discriminatory. Excluding SEND students is, if anything, even more challenging. This was highlighted in a judicial decision against a school which had excluded an autistic student who had physically attacked a teacher. The judgement stated that, according to the European Convention on Human Rights (ECHR), the school had discriminated against the student because the student’s condition encompassed a tendency to physical violence and therefore the school should have made appropriate adjustments before excluding. The judgement was made on the basis that the Equality Act did not protect some children with specific needs.

Presumbly, this means that the ECHR trumps the Equality Act. This this leads one to question what moral agency autistic children are thought to have; who is being safeguarded; and how safeguarding does not necessarily trump all other considerations. Furthermore, it is not clear what reasonable provision is; for the case of severe autism it seems only to include the facility of a ‘safe space’ should the student feel distressed.

Before offering a place to a student with SEND, here are some things you might like to bear in mind:

Accurate and complete documentation

It is important to see all of the relevant documentation. At a minimum this must include:

  • The Educational Health Care Plan (EHCP)
  • The documents supporting ECHP (section K documents) such as psychiatrists’ reports, reports from care workers etc.
  • The safeguarding file from the previous school.

Be aware: EHCPs are often far from comprehensive and should not be taken at face value. It is essential to demand full and extensive disclosure from all relevant parties. Independent colleges are an attractive option for Local Authorities (LA), who are constrained by tight budgets, compared with alternatives that may involve dedicated 24/7 care and are up to five times as expensive.

Excluding students with SENDs

Should a student with a SEND contravene the college’s behaviour policy, colleges should consider temporary rather than permanent exclusion, with a view to putting in place further provision that will more fully support the student and help mitigate a recurrence of the behaviour. If this is not feasible, the college should request an urgent review of the EHCP with the LA and, if necessary, assist in the placement of the student into another, more suitable environment. At a recent tribunal, one CIFE college’s decision not to readmit a student with a disability after exclusion was upheld because the student’s needs had not been fully disclosed by either the parents or the LA through the EHCP. Furthermore, the college was not judged to be an appropriate environment for the student.
However, the college was ordered to remove ‘permanent exclusion’ from the student’s records and to replace it with ‘temporary exclusion while the college works with the local authority to assist placement in an alternative setting’. The college is now working with the local authority to place the student more appropriately and to have its name removed from the EHCP. The ruling was made in late October 2018, yet, to date, the college still awaits a date for a meeting, which is rather disconcerting

EHCP extends to age 25

Once a college has accepted a SEND student the college’s name will be incorporated into the EHCP, so making the college responsible for the student’s education until the age of 25. SEND students may only be excluded if the college has provided the support appropriate to the SEND issue. Even then, it may be referred to a judicial review. It goes without saying, that colleges should make sure that their insurance policies cover litigation in such matters.

Determining exact requirements

The school should ensure that it understands and agrees with the parents or LA what appropriate adjustments it will be expected to make. Importantly, if it decides not to accept a student, it should be confident that it cannot reasonably make the required adjustments.
The college should also ensure that the exact provision is detailed, such as the specific number of weekly teaching hours, or whether staff will have relevant qualifications or not. Vague phrases in the EHCP should be avoided, such as ‘will provide support tuition’ or ‘will offer catch up classes to cover absences’. Once this and the appropriate funding has been agreed, it should be made clear to the LA that this cannot be changed without changing the terms of the contract behind the EHCP. Thus, if the LA asks for a substantial amount of individual tuition, the cost for this should be agreed either initially or at some point after the student has commenced study.
Colleges should also be aware that monitoring such students may consume substantial resources and require a special provision of qualified staff. For example, even if the college has a fully qualified SENDCO, it does not follow that this person is fully qualified to deal with, for example, autistic challenges. Even if they have such qualifications, the care of students with more complex needs will require that member of staff to have access to a qualified support team.

This article was written by Mike Kirby, Principal, Ashbourne Sixth Form College, London

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