• SEN Legal for Schools

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’.”


However, there are instances where offrolling is lawful and a perfectly legitimate action for a school to take. Schools are able to remove a pupil from the school roll when a pupil moves area, parents decide (without coercion) to home educate their child, or a child has been permanently excluded. These examples are lawful and are in line with regulations and statutory guidance.


Managed moves (in the pupil’s best interests) and dual-registering a pupil with another school, such as an Alternative Provider are also both not off-rolling. What is not lawful is schools seeking to remove pupils from the roll due to academic ability or special educational needs, and placing pressure on parents to do this, which is the case in some schools, if this is not in the best interest of the child.


Statistically, children with SEN and low prior attainment are far more likely to be off-rolled than their a-typical peers.


Ofsted Implications


Following the release of the Timpson report, it is apparent Ofsted inspectors are increasingly scrutinising whether schools are unlawfully off-rolling. Last month, two schools were inspected by Ofsted and found to be unlawfully offrolling. Both schools received an inadequate Ofsted rating.


Ofsted is required under Section 5(5b) of the Education Act 2005 to consider the extent to which the education provided at the school meets the needs of the range of pupils at the school, and, in particular, the needs of the pupils who have a disability for the purposes of the Equality Act 2010 and pupils who have special educational needs.


If Ofsted find that significant numbers of pupils are being inappropriately off-rolled, Ofsted inspectors may well conclude, and have a duty to report if so, that the education being provided at the school is not meeting the needs of the range of pupils at the school. This is the case with the two schools rated as inadequate last month.


Schools need to also consider that informal exclusions and unlawful off-rolling are likely to amount to disability discrimination. Therefore, off-rolling and inform exclusions should be avoided at all costs.


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 ensure a child is offered an education elsewhere.


For example, if a child at a school has an EHC Plan in place, but is at risk of being excluded, it is likely to suggest the provision isn’t suitable. In this situation, the school should be requesting an emergency Annual Review and seeking increased provision from the Local Authority. If schools are unable to fund the provision within an EHC Plan, the Local Authority is under a legal obligation to provide this.


If a child doesn’t have an EHC Plan and is at risk of being excluded, schools, alongside parents, should be requesting an EHC Needs Assessment to be carried out by the Local Authority.

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