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London Borough of Lewisham (16 011 888)

Category : Education > School exclusions

Decision : Not upheld

Decision date : 19 Jul 2017

The Ombudsman's final decision:

Summary: There is no fault in the way an independent review panel, arranged by the Council, considered Ms X’s son’s permanent exclusion from school. The Council arranged education for him at its pupil referral unit which has considered his reintegration to mainstream school and will continue to review this regularly.

The complaint

  1. The complainant, whom I shall call Ms X, complains about the Council’s handling of her son, Y’s, schooling since July 2016. In particular she complains:
      1. the independent panel that considered her appeal against Y’s permanent exclusion from Q school failed to properly consider the impact of his special educational needs and the Council failed to take action when the school’s governing body then failed to implement the panel’s recommendations; and
      2. the Council has failed to properly consider Y’s long term schooling needs (including any identified special educational needs), to make plans to reintegrate him back into mainstream schooling or identify a suitable mainstream school for him.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

  1. I discussed the complaint with Ms X and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
  2. I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. Following a decision by a school’s governing body to permanently exclude a pupil a parent has a right to request that an independent panel review this decision.
  2. Parents must apply for a review within 15 days of the governing body decision or final determination of a claim of discrimination under the Equality Act 2010. If parents request a special educational needs (SEN) expert the LA must appoint the expert and cover the associated costs. Parents may request the attendance of an SEN expert regardless of whether the school recognises that their child has SEN.
  3. When reaching its decision the panel can decide to:
    • uphold the exclusion decision;
    • recommend that the governing body reconsiders their decision; or
    • quash the decision and direct that the governing body should reconsider the exclusion again.
  4. The panel can only decide to quash the decision when they find that the decision was unreasonable. The same the principles are applied as to an application for judicial review and the threshold for making this finding is high.
  5. Where the criteria for quashing have not been met the panel should consider whether it should recommend that a governing body reconsiders its decision not to reinstate the pupil. This could be applied where evidence or procedural flaws have been identified which the panel believe justifies a reconsideration of the governing body’s decision. In all other cases the panel should uphold the exclusion.
  6. The panel must issue written notification to all parties without delay. The notification should include the panel’s decision and the reasons for it.
  7. The Common Assessment Framework (CAF) process can be used by anyone who works with a child. It is designed to assess a child’s needs for early identification of any additional needs and decide how to work with other agencies to meet these needs.

Background

  1. Ms X’s son is now 14 years old. He was permanently excluded from Q School in July 2016 following a series of fixed term exclusions earlier in the year related to poor behaviour including bullying and involvement in violent incidents with students at other local schools. The school’s governing body did not meet to consider the permanent exclusion until September 2016.

Permanent exclusion

  1. When the governing body met in September 2016 it upheld the school’s decision to permanently exclude Y. I understand that Ms X attended this meeting. Ms X then asked for a review of the governors’ decision by an independent review panel as was her right.
  2. The Council arranged an independent review panel for 19 October 2016. Ms X attended this meeting. Ms X did not ask for an SEN expert to attend the review so there was not one present.
  3. The panel decided unanimously to recommend that the governing body reconsider its decision to permanently exclude Y because:
    • panel members were concerned that the head teacher and the governing body may not have taken proper account of their statutory duties in relation to special educational needs when reaching its decision to permanently exclude; and
    • his permanent exclusion may have been avoided if the school had sought a multi-agency assessment of Y’s behaviour earlier and considered arranging more specialist support for him when his behaviour got worse.
  4. The clerk to the independent panel wrote to Ms X on the same day to tell her about the panel’s findings and recommendation.
  5. The school’s governing body did consider the panel’s recommendations but did not change its decision and concluded that the original decision to exclude should remain. The Council says the school did not consider Y had special educational needs. In relation to multi-agency assessment of Y’s behaviour and specialist support when Y’s behaviour got worse, the Council says the school completed a CAF but Y’s needs did not meet the threshold for a plan so it did not pursue this.

Education provision following permanent exclusion

  1. Q School made a referral in early July 2016, before Y was permanently excluded, for Y to attend private school provision for young people between 11 and 16 who have “social, emotional, educational and behavioural needs which could not be fully catered for in mainstream education”. Q School says it made its referral when Y was “at risk of being permanently excluded”.
  2. The Council says that all pupils who are permanently excluded are expected to attend the Council’s pupil referral unit (PRU). It says it referred Y to the PRU shortly after he was permanently excluded.
  3. It seems that Y did attend the private school provision that Q school referred him to in July and that Ms X wanted him to remain in that provision rather than go to the PRU. In November 2016 the Council argued that Y could receive the same support at the PRU as well as support to address any educational and his behavioural needs with a view to reintegrating him into mainstream schooling. Following the decision of the independent review panel on 19 October the Council terminated Y’s placement at the private school and advised that he should start attending the PRU after that. As I understand it Ms X refused the PRU placement and Y did not attend initially. A letter from the Council confirms that Y was not attending the PRU by around November 2016. In its letter the Council stated that the longer it was before Y began attending the PRU the longer it would be before he could start the process of reintegration into mainstream schooling.
  4. In its comments to me the Council says it considers the PRU can meet the longer term educational needs of its pupils. It says that one of the PRU’s roles is to consider reintegrating its pupils into mainstream school. It says the PRU decided in February 2017 that Y was not ready for reintegration to mainstream school at that time. It says the PRU review this again at the end of the school summer term and again in September.

Is the Council at fault and did this cause injustice?

  1. I cannot investigate a complaint about what happened in Q School as the law prohibits this. I am therefore focussing on the Council’s role in the process.
  2. Based on the information I have seen the Council properly arranged the independent review panel which considered the governors’ decision to permanently exclude Y. It did not arrange for an SEN expert to attend the meeting but had no reason to as Ms X had not requested this. I cannot comment on the governors’ decision to uphold its decision to permanently exclude Y as this is a matter for the school. I acknowledge however that the school has told the Council that it did not consider that Y had special educational needs and that it said it had considered additional support to meet Y’s broader needs but that he did not meet the relevant criteria for this.
  3. The Council arranged a place for Y at its PRU following the decision to permanently exclude him from Q School. Before this he was attending a private school for children struggling to manage in mainstream school. Ms X preferred this but the Council says it only uses this provision where a child is at risk of permanent exclusion and refers all permanently excluded children to its PRU and seeks to reintegrate pupils into mainstream school when they are ready. Ms X does not consider the Council is making proper arrangements to reintegrate Y back into mainstream school but the Council accepts the PRU’s decision that Y was not ready for this in February and says the PRU will consider this again at the end of the summer term and again in September. I cannot decide whether Y is ready to be reintegrated to mainstream schooling. However I am satisfied that the matter has been considered and that it will be reviewed again depending on Y’s progress. There are no grounds therefore for me to consider that not reintegrating Y into mainstream school before now amounts to fault by the Council.
  4. It seems Q School did not consider Y had special educational needs when he attended the school and so did not arrange any assessment of this. I assume the PRU has not concluded this either. If Ms X considers Y needs an assessment of special educational needs she could contact the Council and ask it to consider assessing this now.

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Final decision

  1. The Council made proper arrangements for the independent review panel to consider the governors’ decision to permanently exclude Y. Ms X is unhappy that the governing body did not then complete the actions the panel recommended. As the recommended action relates to the school’s action, this is not a matter that I am permitted to consider further and I am unable to do so.
  2. The Council made provision for Y’s education at its PRU following the independent review panel’s decision. It says that the PRU works towards reintegrating pupils into mainstream education where this is possible and that the PRU has not yet considered Y is ready for this but will reconsider this again in future. I am satisfied there is no fault by the Council in relation to the education provision it has put in place for Y.

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Investigator's decision on behalf of the Ombudsman

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