The Law changed – Direct off-site for safeguarding

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In a keenly awaited test case the High Court, confirmed the lawfulness of a headteacher directing a pupil off-site for the purpose of safeguarding other children: “…a school and local authority have the power to impose a Safeguarding Separation involving Mandatory Off-Site Schooling”.

In this piece I will explore this ruling and analyse its implications for SEND children.

The High Court acknowledged that “[t]he case has raised questions of law including whether and what power schools and local authorities have to impose what I will call “Mandatory Off-Site Schooling”…”

As I explained in Chapter 10 of SEN & EHCP: Know the Law. Use the Law, there are five ways in which the school or LA can direct a child off-site from a school.

1. Exclusion (fixed-period or permanent);
2. Direct off-site for education to improve behaviour;
3. Direct off-site for the safeguarding of other students;
4. The child is in full-time education, but the LA decides that full-time at school is inappropriate, so the remainder is at home, or other than at school;
5. A full-time education is inappropriate for the child, only a part-time education is.

The third has hitherto proven controversial because, unlike the other 4 methods, there is no express provision in law to support it. So how did the Court solve this conundrum when affirming mandatory off-site schooling for the purposes of safeguarding other children? The High Court turned its attention to the matter starting from paragraph 25. It argued there are 4 reasons to support its validity.

Firstly, sections 175(1)-(2) and (4) of the 2002 Education Act give a wide-ranging general empowerment to “make arrangements” for “safeguarding and promoting the welfare of children”. Make arrangements is a wide empowerment which would, according to the natural English meaning, include directing a particular pupil off-site where he was endangering the welfare of others.

The second reason is the school’s governing body having “general management powers”. The High Court quotes Lord Hoffman as saying “as part of its general powers of management” would have “the right to exclude a pupil on precautionary grounds”.

The third and fourth reasons are included in paragraphs 32-35.

Implications for SEND children?

One thing should be abundantly clear: this case did not involve the off-siting of a SEND child. So the large raft of protection SEND children enjoy courtesy of the Equality Act 2010 and Children and Families Act 2014 were simply not engaged.

The High Court was keen to point out at paragraph 34 that it was “important” to note these mandatory off-siting for the safeguarding of others was subject to public law requirements “including listening and explaining, and to act in a reasonable – including a reasonably proportionate – manner.” (my emphasis)

In Proprietor of Ashdown House School v (1) JKL (2) MNP [1] the Upper Tribunal considered it discriminatory of the school to have excluded a disabled child for violent behaviour including targeted violence and putting children into headlocks, and having exhibited unprovoked violence on 37 occasions. The Upper Tribunal found, inter alia, that the school had failed to make sufficient reasonable adjustments; had failed to involve CAMHS; failed to seek an urgent review to the EHCP; and had failed to consult the parents. The school was forced to readmit the pupil and issue him an apology (not to mention pay the legal costs they would have incurred during the process). A similar scenario occurred in C & C v The Governing Body of a School [2].

The implications are clear. While the High Court has confirmed the validity of the power for schools or LAs to offsite a child for the safeguarding of others, it will be unlawfully exercised if the public authority has itself not taken all the expected preliminary measures such as reasonable adjustments. Trigger happy authorities should reflect carefully on the above two cases before off-siting SEND children.

What reasonable adjustments must a school first make?

The SEND Code cites these examples [3]:

• addressing factors within the class that may exacerbate the problem, for example using circle time to discuss difficult relationships and identify constructive responses
• teaching the child alternative behaviour, for example by taking quiet time in a specially designated area at times of stress
• providing the child with a channel of communication, for example use of peer support
• using a carefully designed system of behaviour targets drawn up with the child and linked to a reward system which, wherever possible, involves parents or carers
• ensuring that all staff coming into contact with the child are briefed on potential triggers for outbursts and effective ways of heading off trouble at an early stage
• drawing up a contingency plan if there is an outburst in class, for example, identifying with the child a key helper who can be called to remove the child from the situation, and
• ensuring that if there is any possibility that positive handling may need to be used to prevent injury to the child, young person or others or damage to property, relevant staff have had training in appropriate techniques, that these have been carefully explained to the child and that the circumstances in which they will be used are recorded in a written plan agreed with and signed by the child and their parents or carers.

Specifically for autistic children the SEND codes expects the following [4]:

• ensuring all possible steps are taken to provide structure and predictability to the child’s day, for example by the use of visual timetables, careful prior explanation of changes to routines and clear instructions for tasks
• ensuring that the child is taught a means of communicating wants and needs using sign, symbol or spoken language
• working with a member of staff on a structured programme of activities designed to prepare him or her for joining in class or group activities, for example by using ‘social scripts’ to rehearse appropriate behaviour
• having an individual workstation within a teaching space where distractions can be kept to a minimum and everything needed for the work to be done can be organised in sequence, and
• ensuring that all staff are briefed on the warning signs which may indicate potential behaviour challenge and on a range of activities which provide effective distraction if used sufficiently early.

Conclusion

The High Court has confirmed schools do have the power to off-site a pupil for the purposes of safeguarding others. Within the context of SEND children, a school would need to first demonstrate it had made all the required reasonable adjustments; involved CAMHS; sought to adjust the EHCP; involved parents; and any other appropriate measures first. A failure to do so would likely lead to a finding of discrimination and an overturning of the decision.

References

[1] [2019] UKUT 259 

[2] [2019] AACR 10

[3] SEND Code para. 9.92 / p.175 – 176.

[4] SEND Code para. 9.92 / p.176 – 177.