Expert advice

Derek Jones examines the new role of SEN expert in permanent exclusion independent review panels.

The regime for dealing with permanent exclusions changed on 1 September 2012 with the introduction of The School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and a new guide Exclusion from maintained schools, Academies and pupil referral units in England.

They have created a number of significant changes, one of which is a parent's right to request that an SEN expert (SENE) attend what is now called the Independent Review Panel which reviews the decision to permanently exclude.

This article looks at the appointment and role of this expert and considers some of the implications. I have referred to the “local authority” throughout, but where an academy is responsible for administering the review, for “local authority” read “academy”.

How and when is the SENE appointed?

When a parent requests a review they can request at the same time that an SEN expert attend that review. That request must be in writing and made at the same time as the request for a review (Reg.7(3)) The local authority must appoint a SENE if so requested unless the application for a review has not been made within the time limit (usually 15 school days of the date of the notice given by the governing body to the parents). (Reg 7(1) and (2)).

Note that in order to make the request the parent does not have to show that the child might have SEN. Simply, once the request is made the local authority must comply.

Who should be appointed?  

“The SEN expert should be a professional with first hand experience of the assessment and support of SEN, as well as an understanding of the legal requirements on schools in relation to SEN and disability”. (Guide Para 122).

They must be impartial but can be employed by the local authority involved provided that they have had no previous involvement with the assessment or support of the SEN for the excluded pupil. They must be asked to declare any conflict of interest as soon as possible. There is no requirement to agree with the parents which SENE will be appointed, and the final decision on which SENE is appointed is with the local authority. However “reasonable steps” must be taken by the local authority “to ensure that parents have confidence in the impartiality and capability of the SEN expert” (Guide, Para 124).

The Guide suggests that this could be done by offering parents a choice from a list of potential SENE’s. Authorities could also consider cross border arrangements with neighbouring authorities, as it will be easier to demonstrate impartiality if the SENE is not employed by the authority involved.

What is the SENE’s role in the Independent Review Panel?

The Guide gives statutory guidance at Paras 155 – 158. SENE’s are “analogous to an expert witness, providing impartial advice to the panel on how special educational needs might be relevant to the exclusion. ” (Guide, Para 155). The focus of their advice is expected to be on whether the school’s policies relate to SEN, whether the schools policies were legal, reasonable or procedurally fair, and if not whether that could have contributed to the circumstances of the exclusion.

Para 146 of the Guide says that witnesses should not be present before giving evidence. However given the SENE’s role they will need to be present throughout the review, and will presumably be asked to advise the Panel at the end of the review having heard all of the evidence. Like every other party, representative or witness they will not be present when the Panel makes its decision. Like parties and panel members they will also need to receive a copy of the exclusion papers in advance of the appeal.

The new Guide does not give model decision letters, but clearly any decision letter will need to record the SENE’s advice to the Panel, and the Panel’s view on that advice particularly if the Panel intend to disregard part or all of it.    

Who pays for them?

Simply, the local authority. “…the local authority must, at their expense …..if requested….appoint… an SEN expert”. Reg.7(1). In addition the local authority must cover the associated costs of that appointment and must indemnify the SENE against any legal costs and expenses reasonably incurred (Para 117-8 Guide).

Implications

This has been a very brief summary of SENE’s and their role. That role will develop as the new regime settles in. The implications for local authorities at the moment are: increased cost as a result of having to appoint and train SENE’s, and potentially create a list of SENE’s; and an increased vulnerability to challenge whether by judicial review or complaint either about the the choice of SENE in a particular case, or a Panel’s treatment of the SENE’s advice in a particular case.

Derek Jones is section leader and solicitor at in the People Department at Essex Legal Services. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..