Disciplining a child with SEN | special educational needs

I am thinking of disciplining a child with special educational needs – what do I need to take into account?

When considering any disciplinary sanction, especially if it is a temporary or permanent exclusion, it is very important to consider the potential for a claim under the Equality Act 2010 for disability discrimination.

One of the first issues to identify is whether or not the child is disabled. If a child has special educational needs, it does not automatically mean that they are disabled. Legally, a child is disabled if they have a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on their ability to carry out normal daily activities. In some cases, it may be clear that a child is or is not disabled. However, if is there is uncertainty it is best to proceed on the assumption that a child is disabled.

When considering whether or not to discipline, it is very important that the school follows its own disciplinary policy and keeps an adequate record of the decision. Whilst it may not be possible to keep a detailed record of every low level sanction, it is important to maintain adequate records so that if challenged, there is always evidence. For example, if a child has received multiple sanctions in one week, there should be a record showing what steps have been taken.

In addition, for a child who has special educational needs and/or is disabled, it is particularly important to take into account their needs. This may include speaking to the SENCO and/or other experts to identify whether or not their behaviour may be connected to their needs. Where a child is, or may be disabled, if their behaviour is because of their disability then there is a risk that disciplinary action (especially exclusion) may be deemed to be discriminatory. 

Whilst it is important to follow the disciplinary policy, very careful consideration should be given as to whether or not the policy should be applied, taking into account the child's specific needs. Special consideration may also be necessary to enable the child to participate in the process when expressing their views about anything in connection with any sanction.

While children with disabilities do need to behave appropriately, it is very important that schools fully take into account their needs and document how they have done so as part of any disciplinary process.

For more information please contact Russell Holland, Barrister in the Education team.