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

Excluding such students whose behaviour had violated accepted norms by, for example, the use of abusive language, bullying and physical violence was never in question, even if such behaviour could be attributed to the SEND. With particular regard to violence, schools were protected by an exemption in the Equality Act which states that schools were not obliged to make reasonable adjustments in the case of a SEND which inclines to physical violence.

Now, providing for such students is more fraught. Indeed, one must be careful about rejecting the applications of such students because your rejection may be deemed discriminatory.

Excluding such students is, if anything, even more challenging. This was highlighted in a recent decision by the Court 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, 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.

I presume this means that the ECHR trumps the Equality Act. This decision leads one to wonder 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 lose their emotional balance.

Before accepting such a student, here are some things you might like to bear in mind:

 

Entire documentation

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

  • The 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 very cautious; EHCPs are often far from comprehensive and should not be taken at face value. Because of budget constraints, LAs may find using independent colleges attractive because the alternatives may involve dedicated 24/7 care and are at least 5 times as expensive as an independent college.

 

Excluding students with SENDs

Should a student with a disability 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 mitigate a recurrence of the behaviour.

Reviewing EHCP to justify exclusion

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 her.

Temporary rather than permanent exclusion

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 will now work with the local authority to place the student more appropriately and to have its name removed from the EHCP. Interestingly, the ruling was made in late October, yet, to date, the college still awaits a date for a meeting.

 

EHCP extends to age 25

Once a college has accepted such a 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. The only way to exclude such SEND students is to ensure that you have 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 can’t 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 Ashbourne of Ashbourne Sixth Form College, London

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