Sanctioning pupils with special educational needs and disabilities (SEND) whose behaviour exposes others to COVID related risks

Schools are currently working to support many children with special educational needs and disabilities (SEND) whose care and support might well have stopped altogether in lockdown. They will be doing this in a context in which health and safety issues related to COVID must be risk assessed, and behaviour that exposes others to new COVID-related risks must be minimised. Schools’ Behaviour Policies will have been amended to cater to this, but schools will still need to ensure that its implementation, in particular when sanctioning pupils (with SEND), complies with their statutory obligations towards disabled pupils.

Let’s take an example:

Filip has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder. This manifests itself in disruptive behaviour in the classroom, flicking pen lids at fellow pupils, refusing to sit down, a lack of awareness of others’ personal space and, when he gets frustrated with others, shouting in their faces.  Dealing with Filip’s behaviour takes up teachers’ time and disrupts other pupils’ learning. The school’s Behaviour Policy clearly sets out the standards of behaviour required and the sanctions if they are not adhered to.

On the face of it, Filip’s behaviour should be punished in line with the Behaviour Policy; however, it is not that clear cut. How then should a school deal with this scenario?

  1. Filip is very likely to be considered disabled. The threshold for disability is relatively low and is a mental or physical impairment that has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
  2. If Filip is disabled, then there is an obligation to consider whether any reasonable adjustments can be made to rectify any disadvantage that he might suffer as a result of his disability. This includes how a school applies a Behaviour Policy where a pupil is exhibiting behaviour that is related to their disability: for example, shouting in someone’s face in response to a situation which an autistic child finds intolerable.

If no reasonable adjustment can be made then a school can take disciplinary action, if appropriate. However, if a parent feels that their disabled child has been discriminated against, they can bring a claim against the school in the Special Educational Needs and Disability Tribunal. It is therefore important for schools to be able to justify any decision that they make and show that reasonable adjustments were made and alternative actions considered before excluding.

So back to Filip, it will be important to consider and document:

  1. Why Filip is behaving in this way.
  2. Whether his behaviour is connected to his disability.
  3. Did he have enough support in place at the time of the poor behaviour?
  4. Is it appropriate to sanction Filip or are further reasonable adjustments available?
  5. Would any lesser disciplinary sanction be appropriate in the circumstances (this should not be the case if reasonable adjustments have been made)?

What is important is that any steps that are taken can be shown to be reasonable in the circumstances and that schools document those steps. Specifically, save in exceptional circumstances, it is important in the context of SEND pupils to try to avoid permanent exclusion for a single incident, therefore schools should, if possible, work more gradually to that outcome through an escalating series of sanctions, including fixed term exclusions, giving time to implement any reasonable adjustments for a disabled pupil in full and document their implementation.  Nevertheless, as headteachers are acutely aware, it is also essential that they respond appropriately to behaviour that puts the health and welfare of other pupils and staff at risk.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo