This quick guide describes how the law on exclusions has changed during the Covid-19 pandemic, including how headteachers should consider the impact of the Covid-19 shutdown on learners prior to proceeding with an exclusion.
This quick guide covers:
- How the law has changed in response to the Covid-19 Pandemic;
- How existing law may protect children and young people from exclusion during their return to school;
1. How the law has changed in response to the Covid-19 Pandemic;
When challenging a school exclusion, there are two areas of law that have changed.
Changes to EHCP time limits
The rights a child or young person has to SEND support were significantly impacted during the pandemic.
The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 came into effect on 1 May 2020. They expired on 24 September 2020. However, they are likely to continue to impact on learner’s ability to access SEND support in the near future.
These regulations temporarily amended time limits that usually would apply to local authorities' and other bodies' processes relating to securing education, health and care needs assessments and preparing EHCPs. Under the amended system, where it was impractical to meet a specified time limit for a reason relating to the incidence or transmission of Covid-19, the time limit being amended will not apply. Instead, the local authority A borough, county or city council that has responsibility for providing education to children in their area. would have to complete the process as soon as reasonably practicable.
However, from Just for Kids Law’s casework experience, and annual figures published by the Department for Education, we know that that local authorities missed deadlines regularly even before these regulations came into force. This might indicate that lifting the deadlines did not change practice in local authorities but legitimised and exacerbated existing backlogs. In addition, Just for Kids Law observed that some local authorities started using blanket auto-generated emails to inform applicants and service users to expect delays, regardless of whether or not Covid-19 impacted on their specific case.
The effect is that young people who should be entitled to additional support when going back to school, or starting school this autumn will find themselves without the SEND provision they are entitled to. For some learners, this will undermine their capacity to engage with their education and may mean that their exclusion happens whilst they are waiting for support to take effect.
If you are supporting someone who has been excluded whilst awaiting the introduction of SEND support, you can download the Suggested Wording: delays to SEND support during Covid-19. You can use this to write to the headteacher to ask them to withdraw an exclusion, or to include in arguments to the school’s governors to challenge a school exclusion.
Changes to EHCP entitlements
The Coronavirus Act 2020 allowed the Secretary of State to change the entitlement children and young people have to the support set out in their EHCP, normally guaranteed by Section 42 of the Children and Families Act 2014. Under this duty, where a young person has an EHCP, then the local authority A borough, county or city council that has responsibility for providing education to children in their area. responsible for maintaining it, “must secure the specified special educational provision for the child or young person”. This is known as an ‘absolute duty’; it has to happen regardless of the difficulties local authorities face in making it happen.
Under the Secretary of State’s power granted by the Coronavirus Act, a notice was issued on 1 May 2020. The notice changed the duty from an absolute duty (they “must” do it), to a “reasonable endeavours duty” (they must make “reasonable endeavours” to do it). “Reasonable endeavours” is understood to be among the weakest legal duties. Broadly, it requires the local authority A borough, county or city council that has responsibility for providing education to children in their area. to take one reasonable course of action to secure the provision set out in an EHCP. If they did this, then the duty was met even if it did not result in the provision set out in an EHCP being realised.
If a local authority A borough, county or city council that has responsibility for providing education to children in their area. can show they used “reasonable endeavours” but were unable to secure the provision set out in a learner’s EHCP, then that child or young person may have to go entirely without the support they are normally entitled to, with no way to challenge or change that situation.
The notice made on 1 May 2020 expired on 31 May, but it was reissued twice for June and July 2020. It has now expired. However, the effect has been to deny young people the support they are normally entitled to for up to three months. Early research has found that 76% of families who were receiving support lost it during lockdown.
The impact on a young person of this loss of support can be significant and long lasting. Children with certain additional needs, particularly concerning their ability to adjust to change, their sensory processing, their communication and their mental health may struggle to simply return to education even when that support kicks back in. They may feel very anxious about returning to school, and support can take time to have an effect, requiring trial and error the building of routine. All of this can have an impact on behaviour in a way that is strictly time limited, or that requires therapeutic and pastoral responses, rather than disciplinary responses.
In these circumstances, it will be difficult for a school to show that it is necessary for an exclusion to be imposed, particularly a permanent exclusion An exclusion that results in the young person being removed from the school register and barred from the school’s campus indefinitely. . When challenging an exclusion under these circumstances, it would be of benefit to gather evidence that supports the argument that difficult behaviour is a result of absence from school, and reintegration. This might include:
- Evidence of a withdrawal of SEND support;
- Evidence of changed behaviour at home or anxiety about returning to school;
- Evidence such as behaviour records which will show that this behaviour is out of character and is not reflective of their engagement with school in more usual circumstances.
With this evidence, arguments can be made that:
- the exclusion should not be imposed in response to behaviour directly linked to SEND;
- the exclusion is not a last resort if it is happening whilst waiting for support to take effect;
- the exclusion cannot be lawful if it is being imposed because the school cannot meet the young person’s needs.
If you are supporting someone who has been excluded during or following a loss of SEND support, you can download the Suggested Wording: Loss of Support during Covid-19. You can use this to write to the headteacher to ask them to withdraw an exclusion, or to include in arguments to the school’s governors to challenge a school exclusion.
Return to schools guidance
The guidance document issued to schools titled Guidance for full opening: schools was produced by the Department for Education to help schools understand how to approach reopening after the shutdown. It includes a section on “behaviour expectations” which explains how schools should view disruptive behaviour and avoid resorting to exclusion where appropriate. It states:
It is likely that adverse experiences or lack of routines of regular attendance and classroom discipline may contribute to disengagement with education upon return to school, resulting in increased incidence of poor behaviour. Schools should work with those pupils who may struggle to reengage in school and are at risk of being absent or persistently disruptive, including providing support for overcoming barriers to attendance and behaviour and to help them reintegrate back into school life.
We acknowledge that some pupils will return to school having been exposed to a range of adversity and trauma including bereavement, anxiety and in some cases increased welfare and safeguarding The process of protecting children and vulnerable people from harm. risks. This may lead to an increase in social, emotional and mental health concerns and some children, particularly vulnerable groups such as children with a social worker, previously looked-after children who left care through adoption or special guardianship, and young carers, will need additional support and access to services such as educational psychologists, social workers and counsellors. Additionally, provision for children who have SEND may have been disrupted during partial school closure and there may be an impact on their behaviour. Schools will need to work with local services (such as health and the local authority A borough, county or city council that has responsibility for providing education to children in their area. ) to ensure the services and support are in place for a smooth return to schools for pupils.
This guidance makes clear that schools should consider alternative approaches in light the disruptions to SEND provision set out above.
In addition, children without SEND or whose SEND is not identified may still have faced disruptive, traumatic and adverse childhood experiences (ACEs) traumatic events that occur during childhood. in lockdown that will impact on their behaviour in a way that is outside of their control. This must be factored into a headteacher’s decision making and can be highlighted to argue to the school’s governors that an exclusion was not appropriate in the circumstances.
If you are supporting someone who has been excluded during or following adverse experiences in lockdown, you can download the Suggested Wording: adverse experiences during Covid-19. You can use this to write to the headteacher to ask them to withdraw an exclusion, or to include in arguments to the school’s governors to challenge a school exclusion.
Covid-19 Changes to the Exclusion Review Process
The exclusion review process has undergone a number of changes in response to the Covid-19 pandemic.
First, exclusions review hearings, both governors’ and IRP, will take place by remote hearing as long as four conditions are met.
The conditions are found in the School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) Regulations 2020. This page will refer to these as the "Covid-19 Regulations". They are:
- the participants will be able fully to make representations or discharge their functions (as the case may be);
- the participants agree to the meeting being held using remote access;
- each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the meeting; and
- the meeting is capable of being held fairly and transparently.”
The government has published guidance which describes how each of the four conditions should be met. This page will refer to this as “the Covid-19 Guidance”.
That the participants will be able fully to make representations or discharge their functions
This requirement means that everyone must be able to speak and be heard. It applies as a meeting progresses meaning that if, for example, a participant’s connection drops or becomes unstable the panel should be adjourned until the issue is resolved.
The participants agree to the meeting being held using remote access
This requirement can best be expressed as a veto power – in which someone can simply refuse a video hearing. However only the family wield this power absolutely. The Covid-19 Guidance explains that where a parent or pupil has given their agreement for a meeting to be held via remote access, the other participants should accommodate that preference except in exceptional circumstances.
The effect of this paragraph is that if the family want to go ahead with a video hearing, one should not be refused by another party over their wishes.
Each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the meeting
This requirement means that a hearing should not go ahead if there are technological barriers that would prevent one participant from joining. However, the Covid-19 Guidance requires that the responsible school or local authority A borough, county or city council that has responsibility for providing education to children in their area. should take steps to overcome technological barriers, rather than simply scrapping the remote hearing altogether. The Covid-19 Guidance states that the governing board or arranging authority should take reasonable steps to facilitate a parent, child or young person’s access to the technology required. If a governor, trustee, panel member or other participant requires support to access or use remote access technology, the governing board or arranging authority should facilitate this to ensure the meeting can be held promptly.
The meeting is capable of being held fairly and transparently
Neither the Covid-19 Guidance nor the regulations define fairness or transparency within this context. However, to prevent schools and local authorities applying a blanket ban on remote hearings and falling back on the time limit extensions the Covid-19 Guidance states that the assessment of whether a meeting can be held fairly and transparently via remote access must be made with reference to the facts of each case and cannot be decided by rigidly following a general policy.
Further, to prevent the governors or IRP panels from refusing a remote hearing against the participant’s wishes, the guidance warns that it would only be in “rare cases” that it would be appropriate to do so.
Time limit extensions
There are similar, but slightly separate rules for exclusions that are imposed at any time from 1 June 2020 to 24 September 2020, and those that happen on or after 25 September 2020. This is because the regulations made in June expired on 24 September 2020, and the rules were changed in the regulations that replaced them from 25 September 2020. Both sets of regulations relax the time limits that normally applied to the school exclusion challenge process.
The following time limits have been changed by the regulations:
- the time in which governors must meet to consider a permanent exclusion An exclusion that results in the young person being removed from the school register and barred from the school’s campus indefinitely. , or fixed term exclusion that brings the cumulative total of exclusion days for that young person to 15 or more in a year;
- the time in which families must submit a request for an IRP;
- the time in which IRPs must meet to hear an appeal.
All these changes only apply to face to face hearings. This means that remote hearings, those which happen via a digital forum such as Skype or Zoom, must still happen within the usual time limits.
For exclusions happening on or before 24 September 2020, these time limits are increased by 10 school days. After the additional 10 school days, the time limits are further extended for as long as reasonably necessary if a hearing has not happened because coronavirus made it impractical to do so.
This means that for exclusions happening on or before 24 September 2020 the relevant time limits are:
- for governors’ panels to meet: 25 school days from the date the exclusion was imposed;
- for families to submit an appeal to the IRP: 25 school days from the date the governors communicated their decision;
- for the IRP to meet and consider an exclusion: 25 school days from the date of receipt of the family’s request for an appeal.
For exclusions happening on or after 25 September 2020, the 10-day time limit extensions do not apply. Instead, remote hearings have to happen within the normal time limits. If the conditions for a remote hearing are not met, then panels can be delayed by as long as reasonably necessary in order to hold a face to face hearing, but only in situations where the delay is because of coronavirus.
2. How existing law may protect children and young people
It is worth keeping in mind that nothing beyond what is set out in this guide has changed. A child or young person’s right to education and SEND support remain intact. All the same tests a school must meet before excluding someone still apply.
It would be unlawful for a school to refuse a child’s right to return to their school after lockdown without issuing a permanent exclusion An exclusion that results in the young person being removed from the school register and barred from the school’s campus indefinitely. . Further, behaviour during lockdown must only result in a refusal to allow a child to return if that behaviour satisfies the usual tests for permanent exclusion An exclusion that results in the young person being removed from the school register and barred from the school’s campus indefinitely. , and a permanent exclusion An exclusion that results in the young person being removed from the school register and barred from the school’s campus indefinitely. is formally imposed.
It is always unlawful for a school to exclude someone for resourcing reasons or because they cannot meet their need. This still applies as schools reopen even though their resources may be more stretched, and new or heightened need may be present in the student population. This does not change their duty to provide support, and it is still unlawful to discriminate or to off-roll or “informally” exclude someone.