Is the application of zero tolerance behaviour policies to SEN pupils unlawful?

Tribunal criticises academy trust for imposing behaviour policy at the expense of a disabled pupil's education

The TES has recently reported on a decision of the First Tier Tribunal of the Health, Education and Social Care Chamber (previously known as the SEND tribunal). The tribunal found that an academy trust failed in its duty to make reasonable adjustments by imposing its behaviour policy rigidly to the detriment of the education of a child with special educational needs.

The 15-year old pupil (X), who has attention deficit hyperactivity disorder and epilepsy, was given a fixed-term exclusion and was also excluded from a work placement. X was later permanently excluded from the school.

The parents of X argued that the academy trust had failed to meet their son's needs and the exclusions were the result of his disability, which led to challenging behaviour. They went on to claim that X's education suffered as a result of his treatment by the school.

The tribunal, which heard the evidence in February 2018, reported that "the question of [X's] actual education appears to have become secondary to the zero-tolerance policy of the school". The tribunal noted that the pupil's education was becoming a series of detentions and exclusions and that the behaviour policy was being imposed rigidly, resulting in X being put at a "substantial disadvantage" when compared to non-disabled pupils. The tribunal stated that the school should have made reasonable adjustments to the policy for X rather than continuing with the "inflexible application of its policy".

The tribunal concluded that the school's actions had compromised X's education and ruled that the school should issue a letter of apology to X for its failure to make reasonable adjustments. Additionally, the tribunal recommended that the school organise training for all staff, which should include positive behaviour management techniques. A copy of the tribunal's judgment was also to be placed on X's file. No financial compensation is available in the SEND tribunal.

The Tribunal did not agree that the permanent exclusion of X was itself discriminatory, recognising the exclusion as a proportionate way of achieving a legitimate aim.

This case highlights the need for schools to apply their policies in a flexible manner, taking into account any reasonable adjustments which may be needed for disabled students who would otherwise be disadvantaged by such policies.

The application of "zero tolerance" behaviour policies has been the subject of a recent hearing of the House of Commons Education Select Committee as part of its inquiry into alternative provision. A witness to the inquiry who works to promote the interests of disabled children has commented that such zero tolerance policies may be unlawful as they fail to take into account the needs of disabled pupils. Details of this on-going inquiry are available here.

Chris Billington, Head of Education at Wrigleys comments that: "It is notable that in this case the Tribunal made reference to the various measures that the academy did put in place to support X.  However that did not help when it came to the application of the behaviour policy itself.  If a series of detentions and exclusions is not achieving the desired change in behaviour then the school has to look at their approach."

The Education Select Committee cites an upturn in the number of exclusions in recent years with 35.2 permanent exclusions per day in 2015/16, up from an average of 30.5 per day in 2014/15. It also notes that pupils with identified special educational needs account for almost half of all fixed term and permanent exclusions.