PA0223

Written evidence submitted by Just for Kids Law and Children’s Rights Alliance for England (CRAE)

About Just for Kids Law 

Just for Kids Law (JfKL) works with, and for, children and young people to hold those with power to account, and to fight for wider reform by providing legal representation and advice, direct advocacy and support, and campaigning to ensure children and young people in the UK have their legal rights and entitlements respected and promoted and their voices heard and valued.

Our work includes legal support for young people through the process of challenging school exclusions. We advise children on their legal rights and entitlements and provide representation in exclusion reviews and discrimination appeals. We also help children with special educational needs and disabilities (SEND) to access the support they are entitled to and ensure that schools respect their rights. This includes providing advice on support for children with SEND, applying for Education, Health and Care (EHC) assessments, EHC Plans and potential appeals.

Our youth advocates work with young people to secure support from health and special education services before, during and after an exclusion. Our work also draws on insights from our School Exclusion campaign, a group of young people with experience of being excluded from school who are working to create change.

In 2019, we launched the School Exclusions Hub, providing an online toolkit for advice and community organisations to provide support to families facing exclusion across England and Wales. Our School Exclusion clinics were launched in May 2022 with Allen & Overy for children permanently excluded from schools in London. 

About CRAE

The Children’s Rights Alliance for England (CRAE) merged into Just for Kids Law in 2015 and works with around 100 members to promote children’s rights and monitor government implementation of the UN Convention on the Rights of the Child.  

Why we are submitting evidence:

The current discussions about persistent absence do not consider the effects and impacts of being excluded from school, in the many ways this can take. School exclusions, unmet need and child criminal exploitation (CCE) can all lead to a child being absent from school, as well as other well-known factors.

Schools are trusted to use exclusions as part of their behaviour policies, however from our work we see that school exclusions are often not used as a last resort and many children miss a significant amount of school as a result. Child criminal exploitation is also not widely understood within schools and barely acknowledged in the Government’s new Exclusion and Behaviour guidance. Schools also lack the funding, resources and training to meet the needs of all children, especially those with SEND.

This lack of support can lead to them being absent from school. All children must be given the right support that will enable them to stay in school.

All case studies included in this submission are from our legal case work with children at risk of exclusions or excluded from school.

Key Messages:

1. Many children are absent school because schools are unable to meet their needs.
2. Children who are excluded from school miss a significant amount of school which has long-lasting effects on their mental health, education and future employment opportunities.
3. School exclusions can entrench child criminal exploitation which keeps children out of school and unaccounted for.

Schools are not meeting the needs of children with SEND

1. School should be a place where every child is able to receive the support that they need to thrive. However, for many children, this is not the case. Children with special educational needs and disabilities (SEND) often do not get the support they need in school.
2. The SEND system has struggled to meet the needs of disabled children. Ofsted’s 2021 SEND report reveals that many parents struggle to obtain adequate support to meet their children’s needs.[1] There is also a significant gap between the needs of children with SEND and appropriate funding, as funding in recent years has not kept pace with the rise in demand for specialist provision.[2] The pandemic and return to school has highlighted and intensified these issues and the lack of provision in the SEND system. [3]
3. Children with SEND were significantly impacted by the pandemic and school closures. Many did not attend school during the first lockdown as they did not qualify as ‘vulnerable children’. Some children with education, health and care plans (EHCP) had not been offered a place at their education setting despite qualifying under government guidance.[4] Parents also expressed concerns regarding the delays in obtaining a diagnosis or an EHCP. [5] These delays again meant that many children with SEND missed out on their education because their needs could not be met in time. Children with SEND, among others, are also most likely to be facing additional barriers to re-engaging with school post-lockdown.[6]

A child who did not get the support he needed due to delays during the pandemic

Jack* is 4 years old and autistic. His communication is limited to a couple of basic hand gestures. He does not cope well with crowds and prefers smaller, calmer environments. Experts agreed in 2020 that Jack needed a highly tailored and intensive package of support delivered in a special school environment to get an effective education. The council’s SEND panel recommended a special primary school that met all his needs. The local authority however refused to secure a place at this school. Instead, the council attempted to secure a place at a mainstream nursery for Jack despite the fact that the nursery had said they cannot meet his needs.

With representation from an education lawyer at Just for Kids Law, Jack’s family issued a claim in the First Tier Tribunal, who have the power to overturn the council’s decision. However, the Tribunal had no capacity to hear the claim for nearly 6 months, which was a potentially devastating delay for Jack. Following a threat of Judicial Review from a specialist public lawyer, the local authority conceded and finally secured a place at the recommended school. Jack’s representative had first raised a challenge in July 2020, yet the local authority did not concede until mid-September. This delay cost Jack and his family dearly.

*not his real name

4. Government statistics show that children with SEND continue to be overrepresented in exclusions [7] and absence figures.[8] They are also overrepresented within alternative provision (AP) [9]. In the recent SEND and AP review, the Government proposed changes to the SEND system to ensure that it delivers better outcomes for children. The above statistics show that a lack of adequate support is pushing children with SEND out of school. More needs to be done to address the inequalities that children with SEND face in accessing their education. Children need a positive and inclusive school environment and strategies must be in place to achieve this in every local authority. Increased funding, adequate support, training and resources must be prioritised if schools are to be a place where children with SEND can thrive. 
5. Recommendations:

1. The Government should provide resources for LAs to establish area-wide inclusion strategies and support packages for schools to better address children’s needs.
2. The Government should ensure the SEND system has sufficient resources to meet demand, including for specialist services such as speech and language therapists, occupational therapists and educational psychologists, to enable inclusive mainstream schools.
3. The Government should take steps to improve decision-making around EHCPs and encourage full compliance of the Children and Families Act 2014 to reduce the number of EHC appeals.

School Exclusions

6. Exclusion from school is another way that children end up being absent from school and their education, which may not fall neatly under the traditional understanding of children missing school. Excluded children are often already the most vulnerable children. Gypsy Roma Traveller and Black Caribbean children are excluded at between almost double to more than three times the national rate.[10] This trend also persists in fixed-term exclusions with these disproportionately affecting children from the same ethnic groups.[11] Rates of exclusion and suspension are higher among pupils with SEND.[12] We see the same trends in disproportionality of Black boys and children with SEND excluded within our casework.
7. Excluded children’s attainment also remains very low.[13] We therefore see how exclusions can result in the same poor outcomes as children who are persistently and severely absent from school due to other factors.
8. Children who have been excluded from school or who are in the process of challenging an exclusion, can be out of school for a significant amount of time. During this time, government guidance dictates that local authorities are to provide education from the sixth day following an exclusion. However, from our casework and experience with children, this is often not the case. Many spend a significant amount of time without receiving any education during their exclusion.

A child who was out of school for 7 months following an exclusion

Following an exclusion, the local authority insisted that a child attend a specific PRU. The child’s parents expressed concern that their child would be harmed if they attended the PRU. This was a real worry for the family because someone had previously attempted to stab the child. The local authority were not going out of their way to put the child in a different provision and did not consider safeguarding. The local authority said the parents were refusing to send their child to school and instead gave them a fine. The child was out of school for 7 months until our lawyers wrote a letter to the Director of Children’s Social Care and the child was able to attend a different provision. During this time out of school the child did not receive any education or resources to support their learning, so had nothing to do while at home. As a result, the parents grew even more concerned about the child’s risk to criminal exploitation.

9. Recommendations:

1. The Government, LAs and MATs should ensure exclusion is used as a last resort in secondary schools and ended in primary schools;[14] The Government should support schools with the necessary resources to achieve this.

Elective-Home Education

10. Some parents and children choose to be home educated following an exclusion. We have worked with many parents who do not want their children or children themselves who do not want to attend an AP or PRU for fear of being wrongly influenced or criminally exploited.
11. These children can get ‘lost’ and spend several months at home, sometimes being home schooled. However, we find the quality of home education for children is variable, for example, due to financial or digital exclusion or if the parents need to work. This is likely to be more difficult for families living in poverty and single parent families. LAs are often not aware of these children or fulfilling their duty to provide them with an education. The DfE does not currently collect data on the number of children who are electively home educated, and with the School’s Bill shelved, we are concerned about the lack of adequate monitoring and data collection of children who are missing school and whether the proposed register of children missing school will be implemented.

Managed Moves

12. A managed move can also result in a child missing a significant amount of time out of school. Children’s education is placed on hold during ongoing communication with their accepting school or AP, with some places turning down a child’s placement, leaving them without a school to attend. The new exclusion guidance states that a managed move should be preceded by information sharing between the original school and the new school including a risk assessment. This is a welcome addition to the guidance which we hope will ensure that new schools are fully prepared to receive transferring students.

Off-Rolling

13. We welcome that the Government has recently addressed the issue of off-rolling in the new school exclusion guidance which states that off-rolling is unlawful. Off-rolling statistics are not available, but evidence suggests unofficial exclusions and off-rolling are increasing due to schools seeking higher league table positions and maintaining good performance and Ofsted ratings.[15] This is another factor that results in children missing school and falling between the gaps. A focus on improving league tables and academic performance of schools instead of incentivising all children to achieve[16] has put pressure on children, leading to stress, emotional difficulties[17] and poor mental health.[18] The Government needs to address the reasons why schools carry out this practice and put effective measures in place to curb it. Measures must also be put in place to monitor its use and safeguard children who are removed from the school roll.

14. Recommendations:
1. The Government should end the practice of off-rolling; Ofsted should hold schools accountable for its use.
2. Ofsted should monitor and report on the use and scale of off-rolling.

Alternative Provision

15. An exclusion can lead to children being placed in AP. While we know that many alternative provision schools are providing good support, for many, the education and support provided is poor and does not meet their needs.[19]
16. Attending AP can also lead to lower education outcomes for children. A report by your Committee revealed that pupils who spend time in AP are unlikely to achieve 5 A*- C grades at GCSE. [20] It is clear from this that attending AP, much like being excluded, can lead to the same or similar outcomes as children who are severely or persistently absent from school. Exclusion must be considered in the wider context of children being absent from school and cannot be looked at in isolation. [21]

Bullying

17. We have also seen cases of children being absent from school because of persistent bullying and the associated trauma:

18. Recommendation:

a)      The Government should provide further funding to schools to combat bullying focusing on root causes not punitive measures. 

Child Criminal Exploitation

19. School is a protective factor for children. Being on the streets and out of school altogether increases children’s risk of exploitation. These risks multiply when the child is already vulnerable to exploitation because, for example, they have additional needs which makes them easier to manipulate, they have siblings or other family members who have become involved in criminal activity, or they live in an area where gangs are active.

20. Children are more likely to be exposed to criminal exploitation outside of mainstream school. Many children tell us that their first exposure to criminal gangs took place in alternative provision after they had been excluded from mainstream school. Exploiters target pupil referral units in the knowledge that many of the children who attend are particularly vulnerable and are typically supervised for fewer hours per week than those in mainstream education.[22] The National Crime Agency, identifies placement in an AP as a factor that will increase a child’s risk of child criminal exploitation (CCE).[23]  Ofsted’s 2021 annual report shared concerns from alternative provision providers that more children have been put at risk of criminal exploitation during the pandemic.[24]
     
21. There is also a lack of recognition or understanding of CCE which leads to children being excluded from school. At Just for Kids Law, many of the children we work with have been excluded from school because of circumstances beyond their control. This includes children who are victims of CCE, and whose behaviour is directly connected to that exploitation. For example, we often work with children who are automatically excluded for carrying drugs into school, even in circumstances where the police have recognised that they were doing so because they were victims of exploitation. In these cases, the child’s school often haven’t taken the time to understand the reasons behind the child’s behaviour or the ways in which those children are at risk. We find that too often the warning signs that a child is being exploited are not investigated or understood by teachers, headteachers or governors. Instead, these children are excluded from their school, education and support networks and pushed into the hands of exploiters.

22. Recommendations:

1. The Government should ensure there are greater protections for victims of CCE excluded from school.
2. The Government should produce stronger guidance on CCE that supports headteachers and governors to identify where exploitation might be a factor in a child’s behaviour and take this into account when they are making a decision to exclude a child and acknowledge the safeguarding risks for that child missing education.
3. The Government, LAs and MATs should promote a better understanding of CCE within schools including recognising the link between school exclusions, CCE and missing education.

Conclusion:

23. This response highlights the many ways exclusion from school can be harmful for children and can lead to their absence from school. There are many different forms of excluding a child from an education, such as a permanent exclusion, but lack of adequate support and resources and child criminal exploitation are also factors that lead to a child’s absence. When looking at persistent absence and its impact on disadvantaged groups, we urge the Committee to take these factors into account.
24. The education system needs to be better equipped to support children with SEND. Children should not be forced to miss school because their needs cannot be met. Schools must also address their approach to behaviour policies and instead prioritise offering support to children with behaviours that challenge, rather than punishing them.

January 2023

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