Extra legal protections for SEND children

Children with an EHCP (or on the SEND register) have additional legal protections against permanent exclusion. Under the Equalities Act 2010 and the Education Act 1996, schools must not exclude a child if their behaviour is a manifestation of their special educational needs. This is a crucial protection. If a child is excluded and Torbay Council later investigates and finds the behaviour was linked to the child's SEN, the school may be found to have acted unlawfully. Know this - it's powerful protection.

What counts as a manifestation of SEN?

Behaviour is often a manifestation of SEN. For example: a child with autism may become distressed by unexpected changes and lash out; a child with ADHD may struggle with impulse control and hit out; a child with anxiety may refuse to leave the classroom. These are not discipline issues - they're disability-related responses. Before excluding, the school must consider whether the behaviour is a manifestation of the child's SEN. If it is, exclusion is not the appropriate response - better support is.

The exclusion process

Before permanently excluding a child with SEND, the school must follow strict procedures. They must consult the parents and Torbay Council. They must consider whether the behaviour is a manifestation of the child's SEN. They must consider whether the school has made reasonable adjustments. If the child has an EHCP, the local authority has a specific role in reviewing the exclusion. Governors must follow the process precisely - procedural failures can make an exclusion unlawful.

If the school is excluding or threatening exclusion

Challenge it immediately. Ask the school: why is exclusion being considered? What alternatives have been tried? Could the behaviour be related to the child's SEN? Has a manifestation meeting been held? Has an adjustment review been undertaken? Write to Torbay Council and ask them to get involved in the decision. If exclusion goes ahead and you believe it was unlawful, appeal to the independent review panel, complain to Torbay Council, or seek legal advice. Many unlawful exclusions are overturned.

Supporting your child after exclusion

If your child is excluded, they still have a right to education. Torbay Council must arrange suitable education (often called EOTAS - Education Other Than At School). If the exclusion was unlawful, you may be able to secure your child's reinstatement or claim damages. Even if the exclusion was technically lawful, if it was linked to your child's SEND and alternative support wasn't offered first, there may be a case. Seek advice from IPSEA or a SEND lawyer - many offer free initial advice.