Schools that follow the government’s latest behaviour guidance could risk breaking the law through their treatment of pupils with special educational needs and disabilities, a top education lawyer has warned.
Dan Rosenberg, an education solicitor and partner at law firm Simpson Millar, said that schools that follow the guidance - as it is currently drafted - could end up in breach of the Equality Act.
Under the Equality Act, schools are required to make “reasonable adjustments” for students with disabilities to ensure that they do not discriminate against them.
Mr Rosenberg said he is concerned with the way the guidance explains how adjustments should be made to the behaviour standards expected of SEND pupils, and the sanctions these pupils would face if they do not meet these standards.
SEND legal advice charity IPSEA has also said it has “some concerns” about the guidance, which doesn’t “fully acknowledge the disproportionate sanctioning by schools of children with SEND”.
Amara Ahmad, a senior associate at law firm Doyle Clayton, has said school leaders reading the guidance “might misconstrue what their obligations are under the Equality Act.”
However, the DfE’s behaviour tsar, Tom Bennett, said the guidance fully supported the need for schools to make reasonable adjustments “at all stages” of the disciplinary and pastoral process, while the DfE has said it would “welcome” any feedback on the guidance, which is currently subject to consultation.
The new guidance was published on 3 February, and the consultation is open until the end of March.
Behaviour guidance ‘could lead to unlawful treatment of SEND pupils’
Mr Rosenberg said his issue with the guidance relates to the section about adjustments that should be made to required behavioural standards for SEND pupils, and the sanctions they would face for not meeting them.
As an example, he said that certain students with dyspraxia might forget their PE kit or other equipment more often than other pupils, and whilst a reminder may well help them, “it does not follow that they can be sanctioned as other pupils without disabilities might be”.
Part of the guidance says that all schools should “consider whether a pupil’s SEN or disability has contributed to the misbehaviour and if so, whether it is appropriate and lawful to sanction the pupil”.
It adds: “To do this, schools should consider whether the pupil understood the rule or instruction and whether the pupil was unable to act differently as a result of their SEN or disability.”
Mr Rosenberg said that the second sentence here creates a risk of schools acting unlawfully, if the guidance is not amended. He said children with disabilities often understand a rule or instruction but still don’t comply with it. He said that this is also not necessarily because the student is “unable” to follow the rule.
But he said the guidance’s focus on whether the pupil had “understood” the rule and whether they were “unable” to comply may lead to schools sanctioning SEND pupils who had understood a rule and were technically able to follow it, when this may not be appropriate.
Going back to the PE example highlighted above, he said that a child with dyspraxia could understand the rule or instruction to bring their PE kit and be “able’ to remember it, but would still be less likely than other children to do so, as a result of their dyspraxia.
Speaking about guidance, Mr Rosenberg said: “As the guidance is currently drafted, it runs the risk of schools not realising what is required to comply with the Equality Act.
“Schools are required to make reasonable adjustments to help SEND pupils. But it’s not just reasonable adjustments to help them meet any ‘required standard’ that’s important - how those standards themselves are implemented may require reasonable adjustments.”
The DfE guidance does state that schools “should also consider whether any reasonable adjustments need to be made to the sanction in response to any disability the pupil may have”, but Mr Rosenberg said that a reasonable adjustment in this case “could include not sanctioning them”, and that this is not given enough prominence in the text.
IPSEA has also raised concerns about the current drafting of the behaviour guidance.
The organisation’s chief executive, Ali Fiddy, said that the charity would be responding in depth to the current consultation and that the draft guidance doesn’t “fully acknowledge the disproportionate sanctioning by schools of children with SEND”.
Amara Ahmad, a specialist education solicitor at Doyle Clayton, also raised concerns about how the guidance would be interpreted.
She said: “There is an issue with the language of the guidance - in places it can read as black and white. Whilst it’s intended to be helpful, some of the examples used are quite stark and I think that might be concerning for school leaders.
“Reading the guidance in isolation without going back to the text of the Equality Act, a school leader might misconstrue what their obligations are under the Equality Act. There are various different scenarios where different approaches are needed to the application of reasonable adjustments, and I’m not sure that comes through here.”
Behaviour ‘not always a choice for a child with SEND’
She added: “The guidance should state clearly that behaviour is not always a ‘choice’ for a child with SEND, especially if they aren’t receiving the support they need in school. The language of ‘misbehaviour’ and ‘obedience’ is problematic, as a child’s special educational needs may affect their ability to ‘obey’ a rule or to make ‘good choices’.
“The Equality Act 2010 is very clear that treating all children and young people fairly and justly does not mean treating them all the same.”
Responding to some of the concerns raised, the DfE said it was updating the guidance to give headteachers “greater support to create calm, orderly, safe and supportive environments for children and young people to thrive in”.
A spokesperson added: “We are consulting with the sector on proposed changes and welcome any feedback as part of that process, before publishing the updated guidance in due course.”
Mr Bennett said that while he believed the guidance “fully supports the need for schools to make reasonable adjustments at all stages of the disciplinary and pastoral processes”, he welcomed the comments, and said they would be fed back into the final guidance.
