By Charles McCombe
Nonsuch Primary School, in the Woodgate Valley area of Birmingham, has received both local and national attention after expelling four children with disabilities, the youngest of whom is four years old. The most recent of these exclusions, which concerned ten-year-old Mason Dunbar, prompted the school’s Chairman of Governors to resign in protest, and forced a local councillor to speak out against the school’s record of exclusions.
Mason Dunbar, and his twin brother Carter, are Year 6 pupils at Nonsuch Primary School. Mason suffers from a number of disabilities, including Cerebral Palsy and Attention Deficit Hyperactive and Oppositional Deficit Disorder. Following a number of temporary exclusions, the school decided to permanently exclude Mason on 19th November 2015, citing ‘defiance’ as the reason for this course of action. This decision was not without controversy.
Simon Thomas, the Chairman of the school’s Board of Governors, handed in his resignation upon learning of the decision to permanently exclude the 10-year-old, claiming that it was “the final straw.” Thomas spoke to a local newspaper, and gave the following comments as regards his resignation:
“That’s no way to run a business. I emailed (headteacher) Jo and the other governors and said I’d had enough. You would’ve thought that after 17 years, the headteacher would want to know why.
You were banging your head against a brick wall and I’d had enough. I used to enjoy doing it, but I believe the school is going downhill. I know of other cases where children with problems were excluded. I don’t think the proper measures have been put in place.”
This strong statement of disapproval attracted much attention, not least that of a Birmingham Councillor, John Lines. He described the events as “a Trojan Horse situation” and highlighted a continued history of “disability and discrimination” at the school. He went on to reveal that he had been approached by four different families, all of whom had children who had been permanently excluded by the school, without any real evidence to substantiate these decisions. Each of these children suffered from a range of physical and mental disabilities. Lines added:
“It does appear young children as young as four-and-a-half up to six years old have been excluded with no evidence given of any real reason. (…) There is something seriously wrong here. (…) I have called for an investigation into the school. We need to probe what is going on for the sake of other children.”
The councillor attended the Governors’ Disciplinary Committee meeting, at which Mason Dunbar’s exclusion was being appealed. Subsequently, the school rescinded the decision, blaming “external professionals” for the lack of adequate information and support for Mason’s disabilities. Tony and Donna Dunbar, Mason’s parents, gave their support to Councillor Lines’ call for an investigation and expressed concerns about their son’s return to the school, as they have continually failed to cater for Mason’s needs. Mrs. Dunbar said:
“They hadn’t supported him (Mason) in anything. We support an investigation, not just for Mason, but other kids who have been excluded. Surely you can’t just get rid of them?”
Mason’s mother is quite right. Schools cannot simply exclude children with disabilities. This is likely to amount to unlawful discrimination under the Equality Act 2010 which provides that excluding a disabled pupil for behaviour which stems from their disability is unlawful, unless the exclusion was a proportionate means of achieving a legitimate aim (s.15). For disabled students, schools have a duty to make “reasonable adjustments” in order to support disabled pupils (s.20&21), which may include considering alternative sanctions to exclusion or discounting behaviour that flowed from a failure to provide appropriate support.
Furthermore, the statutory guidance on Exclusions issued by the Department for Education (DfE) Exclusion from maintained schools, Academies and pupil referral units in England (“the Guidance”), provides special protection for children with ‘special educational needs’ (SEN) from permanent exclusion. Permanent exclusion should, in all cases, only ever be used as a “last resort”, but for the children with SEN it should be avoided “as far as possible.” Part of the reason for this extra protection for SEN students is to tackle the disproportionately high rates of exclusion among SEN students, as they make up only 20% of the student population, but 70% of all permanent exclusions.
It would seem highly likely that the behaviour for which Mason was excluded arose as a consequence of a disability, and the exclusion was therefore unlawful. The school stated that ‘defiance’ prompted them to exclude Mason. Presumably defiant behaviour is a known symptom of Attention Deficit Hyperactive and Oppositional Defiance Disorder. Additionally, it appears that the school failed to obtain relevant information from SEN experts and ignored their duty to put appropriate measures in place to support the ten-year-old’s SEN needs. This is despite the requirement in the Guidance for schools, in partnership with others, to “consider what additional support or alternative placement may be required” where there are concerns about the behaviour or risk of exclusion of a child with SEN (s24).
In this author’s opinion, as Councillor Lines highlighted, the school’s record of excluding children with disabilities is most concerning. It is very hard to see how these four decisions demonstrate an attempt to avoid the permanent exclusion of disabled pupils. While legislation such as the Equality Act has provided a statutory basis through which the struggle against discrimination can be continued, it ceases to have effect, practically speaking, if individual instances of unlawful decision-making are left unopposed. Therefore, the efforts of the local media, Mr. Lines, and others must be praised, as it is vital that discriminatory activity is continually recognised, challenged and prevented.