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  • Writer's pictureSEN Legal

Unlawful Exclusions - 'Off-Rolling'.

The Government’s review of school exclusions by former Child Minister, Edward Timpson, was published in May 2019. The report looks at a range of long standing issues with school exclusions, but importantly raises the issue of unlawful exclusions and ‘off-rolling’.

Timpson described informal exclusion and off-rolling as “quite simply wrong”. Concerns have been raised of the use of off-rolling by parents, teachers, the Chief School’s Adjudicator, the Children’s Commissioner and HMP Chief Inspector.

The practice of off-rolling and informal exclusions is widespread and continues to grow.

What is ‘off-rolling’?

There is no legal definition of what off-rolling actually is, however, Ofsted defines it as:

“Off-rolling is the practice of removing a pupil from the school roll without using a permanent exclusion, when the removal is primarily in the best interests of the school, rather than the best interests of the pupil. Off rolling is a form of ‘gaming’.”

Reading this newsletter, this definition may sound all too familiar to you. Statistically speaking, children with SEN are far more likely to go through this than their a-typical peers. There is an alarmingly growing trend of schools seeking to remove children with SEN and low prior attainment from their rolls; Ofsted have confirmed this.

When does it happen?

The situation often arises with secondary schools trying to protect their own exam results, or where children are at risk of being permanently excluded, and it is used as an alternative. Both instances are unlawful.

Where off-rolling is happening, parents are being faced with pressure to move to another school or elect to home educate their children, or their child will be excluded. This should not be happening and is unlawful. There is a formal exclusion process which should be followed, rather than avoided as schools are seeking to do.

*Electing to home educate can absolve your Local Authority of having to provide any special educational provision to your child, even when an EHC Plan is in place. It is something that has to be considered seriously and away from any pressure from your school.*

What Should be happening?

If a school has concerns about meeting the needs of children with SEN, or a child with SEN is at risk of exclusion, the school should follow the formal exclusion process (please see previous article of what the process is) and the statutory guidance. Formal exclusion provides a process for review and, crucially, triggers duties that ensures a child is offered an education elsewhere. Off-rolling a child to be home educated does not do this.

Key points of the exclusion guidance that parents should be aware of are:

Point 3.13 – It is unlawful to exclude for non-disciplinary reasons, ie, disability. It is unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet the needs of.

Point 3.15 – …the threat of exclusion must never be used to influence parents to remove their child from the school.

Point 3.19 – Early intervention should take place to identify the needs of children with SEN and the underlying causes of disruptive behaviour. The Headteacher should also consider the use of a multi-agency assessment for these children.

Point 3.22 – Headteachers should consider what extra support might be needed to identify and address the needs of pupils in order to reduce their risk of exclusion.

Point 3.25 – If there are concerns about behaviour, or risk of exclusion for children with SEN, it should consider what additional support is required. This should involve assessing the suitability of provision for a pupil’s SEN. If an EHC Plan is in place, an emergency Annual Review should be considered before exclusion.

These steps should be followed and provide an avenue for schools and parents to seek support from the Local Authority to avoid off-rolling and exclusions taking place. The off-rolling and/or exclusion of children with SEN is only going to continue to rise with the increasing cuts to school’s SEN budgets.

If you have been through this, or are facing pressure from your school to remove your child, or your child has been excluded, we can help you.

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