Forgotten children: alternative provision and the scandal of ever increasing exclusions Contents

3The process of exclusion and referral

“Parents who advocate strongly for their kids are seen to be a pain and pushy. I have had letters where I am described as being a particularly difficult person to deal with, because I am advocating for my child, and because I know the system and am prepared to say what is right and what is wrong.”

Parent of a pupil with experience of alternative provision

38.There are several ways that a pupil can be referred to alternative provision. Pupils may be placed by their school, while others may be placed by their local authority. If a child is permanently excluded, it is the responsibility of the local authority to find them an alternative school. The local authority also has a duty to provide education for pupils with additional health needs where their illness will prevent them from attending school for 15 or more days and where suitable education is not arranged. Schools can commission their own alternative provision places for pupils who are being directed off-site for education to improve their behaviour. Local protocols will also affect the referral pathway. Peterborough City Council operates a Pupil Referral Service, creating a single service.63 In other areas, referrals may go through a Fair Access Panel, while in others some will be directly referred by the local authority or school.

39.We already know that many pupils are in alternative provision because they are excluded from school. While we have found that many pupils are excluded from school when perhaps they should not be, there will be pupils who have been excluded from school for good reason. Where pupils have committed violent or criminal acts, exclusion may be the only viable option as pupils and teachers have the right to learn and work in safe environments. Some pupils will be too ill to attend school, or will self-exclude due to mental health difficulties. But no pupil who is excluded should be given up on, and every pupil should be educated in high quality provision that meets their need for and right to a good education.

School powers and pupils’ and parents’ rights

40.In England, only headteachers can exclude a pupil, which can only be for disciplinary reasons.64 It can appear confusing who is responsible for arranging education in this case. Headteachers must tell parents of an exclusion, and in some cases, including in the case of permanent exclusions, must inform the governing boards and local authority. While governing bodies and proprietors of maintained schools and academies must arrange suitable full-time education from the sixth day of fixed period exclusions (or first day for looked after children), it is the local authority that has the duty in other cases.65

41.There are many challenges that come with exclusion, or referral to alternative provision, for pupils and parents. We heard that the decision about where a child is sent to is largely out of their hands, and decisions made by the school, or local authority, will be affected by financial considerations, availability of suitable provision and whether the provision has places.66 A parent told us:

When we were sat around the table with our education and care plan, putting things into place, the headmaster from my son’s primary sat at the table and the only contribution from him was, “Well, this is cutting into my budget now. It is costing me £100 a day to keep this child in this AP school. What can we do quickly?” It was not about my child. The focus was about moving him on quickly because it was cutting into the budget. It was not about the welfare of my child.67

42.Parents and pupils often do not know their rights regarding exclusions, and where the pupil is internally excluded or directed off-site, there is no system of redress.68 When a school is proposing to exclude a child, however right it may be, it is likely that it is also a time of stress or tension, with pressure on the relationship between the pupil and/or parent and the school. Jules Daulby told us:

There are so many parents that feel they get, “Oh, another call from the school”, and what ends up happening is the parent and the child become against the school, and it should be the school and the parent saying to the child, “Right, this is how we’re going to help”. That relationship is really important, and sometimes it feels very much that the family and child are to blame, and the school will not work with them until they turn themselves around.69

Navigating the exclusions process can be difficult and parents and pupils can be left fighting a system that they do not understand and that they feel is stacked against them. In addition, we heard that parents often do not have the time or social capital to challenge schools. Dr Gazeley, Senior Lecturer in Education at the University of Sussex told us:

Some parents are very much better placed to exert their rights than others, and one of the issues is that many of the children who get tied up in all these processes have parents who do not have the knowledge, the understanding, the trust or the experience to exert their rights, and they do not have access to advocacy either. They are in a very dependent position o[f] trust for professionals, some of whom do a very good job and some of whom we know are not doing the right things. It is really important to recognise that some parents can leverage the system and some cannot, and we need to think about how we help them.70

43.Only in the case of permanent exclusion can a parent appeal against the decision. If a parent’s appeal fails, they can appeal to the Independent Review Panel, but the Independent Review Panel can only be convened if parents apply within 15 school days.71 Many parents will not know about their right to do so, and may lack the time and capacity to do so and meet the deadline. Responsibility for bringing together the panel rests with the local authority, or academy trust. The panel should have one lay member, a school governor and a headteacher representative, and guidance states “every care should be taken to avoid bias or an appearance of bias.”72 We consider that an appearance of bias can arise, purely by the makeup and weighting of the panel. We heard from Matthew Dodd, from the Special Educational Consortium, that their power is weighted in favour of schools as the “Education Act 2011 removed the right to reinstatement, so an independent review panel cannot enforce a reinstatement.”73 We do however acknowledge that if a governing body does not reinstate a pupil it must make a financial payment to the local authority.

44.The exclusions process is weighted in favour of schools and often leaves parents and pupils navigating an adversarial system that should be supporting them.

45.Legislation should be amended at the next opportunity so that where Independent Review Panels find in favour of the pupils, IRPs can direct a school to reinstate a pupil.

46.Where responsibility sits for excluded children in a local area has become very ambiguous. The Timpson Exclusions Review needs to clarify whose responsibility it is to ensure that excluded or off-rolled pupils are being properly educated. This could be the local authority or it could be local school partnerships, but at the moment too many pupils are falling through the net.

47.When a pupil is excluded from school for more than five non-consecutive days in a school year, the pupil and their parents or carers should be given access to an independent advocate. This should happen both where pupils are internally or externally excluded from school, or where the LA is arranging education due to illness.

Children getting to the right place at the right time

48.We were told that it is often not in the hands of the pupil or parent when decisions are made about where a pupil attends alternative provision. Where a pupil is directed off-site to ‘improve their behaviour’, a parent does not have to agree to the placement, much less the actual details of the placement,74 although statutory guidance does state that “where possible, parents should be engaged in the decision taken by the school to direct a pupil off-site.”75 In addition, for many pupils their journey to the right provision takes time. This can be because the permanent exclusion process takes time,76 either because the process adheres to statutory timescales or because schools leave pupils to languish and struggle for too long.

The right place

49.Of the alternative provision that is inspected by Ofsted, 88% is ‘good’ or ‘outstanding’.77 However, 18% of places in maintained schools for excluded pupils are in ‘requires improvement’ or ‘inadequate’ provision.78 Of the alternative provision in the independent sector, 72% of independent alternative providers have a good or better inspection rating.79 However, the quality, and availability, of provision is variable. In 11 local authorities, there are no ‘good’ places in alternative provision, while in Dudley, Gateshead, Newcastle and Thurrock, all PRUs are ‘inadequate’.80 It appears that there are areas of the country, and therefore large numbers of pupils, that have no access to high quality alternative provision and therefore high quality educational opportunities for those who may be set up to fail in mainstream school.

50.We asked parents and pupils if they felt that they had a say in where they were referred to, either following a permanent exclusion or any other move. While the young people we met with seemed happy that they were in high quality provision that was working for them, none of them felt that they had been offered a choice about there they would attend school. This was also reflected in the discussion we had with parents. One parent told us “Against my wishes, they put my son in an EBD [emotional and behavioural difficulties] school, which is about the worst provision you can put an autistic child in, quite literally. It was catastrophic for him. I objected about as strongly as I could to that, and they put him in there anyway.”81

51.In 2012, the Taylor Review of alternative provision found that while the DfE kept a central register of AP providers, it only contained partial, un-validated information. Taylor therefore recommended that the Department no longer maintained a central list.82 While this recommendation was acted on, this had led to no clear responsibility for alternative provision oversight. Essex County Council told us that because there is no requirement on alternative provision providers to register with the local authority before they offer provision, local authorities can be unaware of the provision that is available in their area.83 This was explained to us in the context of quality assurance, but if local authorities are not aware of the provision that is out there to quality assure, they will be equally unaware of providers with whom they can place children. We are unconvinced that schools and parents will be able to place pupils in the most appropriate setting for them if they do not know about the full range of alternative provision on offer.

52.Pupils who require alternative provision because their medical conditions or needs mean they cannot attend school have little control over the education that they receive. Cath Kitchen, Chair of the National Association of Hospital and Home Teaching, told us that “our children do not always have a choice about when they move into alternative provision because they are placed there because of their health needs. There is no choice for parents or for young people because they are moved to a hospital that best meets their medical needs.”84 She went on:

The children who have physical medical needs most often come into alternative provision because they are admitted to hospital as an inpatient. When they go into hospital, depending on which local authority and what type of hospital, whether it is a regional one or just a local hospital, they will access teaching while they are there. If they have a mental health condition that means it cannot be safely managed within the community, they also are entered into an inpatient provision; they call them tier 4 CAMHS units, where again they are accessed there. If their mental health is so severe they may be sectioned under the Mental Health Act and then put in a different type of environment. If there are no places in tier 4 units, then they may be placed in private hospitals. In private hospitals a lot of the education provision there is not regulated and you do not have a choice about where you go.85

53.The Government should encourage the creation of more specialist alternative providers that are able to meet the diverse needs of pupils with medical needs, including mental health needs.

The right time

54.We spoke to several young people during our inquiry, and for many of them they arrived in alternative provision after having had failed moves, having spent time in ‘inclusion’ or ‘isolation’, or having given up on attending school altogether. One young person was moved four times in three years, before arriving at their current alternative provision. Another young person told us that they spent Year 7 and Year 8 in and out of school, and it took a long time for them to get the support that they needed. One of the young people we spoke to who attended alternative provision for medical reasons told us:

I didn’t get given the choice to go to the online tuition until nearer the end of my treatment. If I had been offered that earlier, I might have been able to get more schooling in, which might have improved my results at the end. If I’d had it at the start of my treatment, that might have helped us in the long run.86

We were therefore pleased to hear from the Minister that “We want to see increasing parental and pupil engagement in terms of decisions about going into alternative provision. We want those pupils and their parents to be more engaged in that process than they perhaps currently are.”87

55.Some pupils need a different environment to learn in. Currently parents and pupils are not sufficiently involved and the process can often take too long. Where schools recognise that alternative provision is the most suitable option for a pupil, schools should feel able to find the right provision for that pupil. Parents and pupils have a tremendous stake in their education and schools and local authorities need to include them more in decisions.

56.There is an inexplicable lack of central accountability and direction. No one appears to be aware of all the provision that is available, which impacts on both schools, local authorities and parents. Unless all providers are required to notify the local authority of their presence, not all schools or LAs will be able to make informed decisions about placements. Without someone to take responsibility for co-ordinating and publishing information about the local provision that is available, parents and pupils will remain unable to fully participate in discussions about alternative provisions referrals.

57.All organisations offering alternative provision should be required to inform the local authority in which they are based of their provision. The local authority should then make the list of alternative providers operating in their local authority available to schools and parents on their website.

58.Pupil Referral Units, and other forms of alternative provision, should be renamed to remove the stigma and stop parents being reluctant to send their pupils there. We suggest that the Government seeks the advice of pupils who currently attend alternative provision when developing this new terminology. Many have described AP as specialist provision, offering children a more tailored, more personal education that is more suited to their needs.

A lack of oversight

59.We heard that there can be little oversight of pupils in alternative provision, with The Pendlebury Centre PRU suggesting that there can be an “out of sight, out of mind mentality by some.”88 The Engage Trust suggested that there is too little scrutiny of the school’s actions in placing children into alternative provision, and even when pupils are sent to registered provision like AP Academies, there is little or no oversight of the decisions made by schools.89

60.The Department’s guidance states that the headteacher of a school must, without delay, notify the local authority of:

In addition, headteachers must tell the local authority and governing body termly of any other exclusions that they have not already informed them of. Where a pupil lives in a different local authority to the school from which a pupil is permanently excluded, the pupil’s home authority must be informed.91 However, it is unclear what impact this reporting has and whether there is any further scrutiny undertaken of the decisions that schools are making.

61.The Department’s guidance clearly suggests that there is a role for local authorities to play in the oversight and monitoring of exclusions, as headteachers are required to notify them of exclusions.92 However, we heard the diversification of the school system has caused the role of the local authority in alternative provision to become more difficult.93 Ralph Holloway from Essex County Council told us about the challenges that local authorities can face when placing pupils in AP:

We might have had some involvement with that young person or we might not. It depends upon the individual school and the circumstances in which that young person was permanently excluded. We get a notification and within literally 24 hours we have to have that referral into one of our pupil referral units. Within six school days that young person will be starting their position with the PRU. There is not much room there for making an informed decision about what is the best provision for the young person.94

The ADCS felt that there is a role that the local authority should play when relationships between the school and parent break down.95 Kevin Courtney from the NEU also told us:

You need an honest broker locally who is keeping all schools honest in these behaviours. That is the much vaunted middle tier. Everyone has their own opinion about who that middle tier should be, but there needs to be something that is robust that can challenge a headteacher. The head teacher has to make a professional decision but it should be a local authority or some other body that is in dialogue with them, rather than thinking it is parents that are going to be keeping that right.96

62.Local authorities have statutory responsibilities to provide suitable education for pupils and yet can have little oversight or scrutiny over decisions about exclusions and placement decisions. This may be due to inadequate resourcing, which needs to be addressed. We are also concerned by the lack of transparency about exclusion rates that are available to parents about schools.

63.We recommend that LAs are given appropriate powers to ensure that any child receive the education they need, regardless of school type.

64.Schools should publish their permanent and fixed term exclusion rates by year group every term, including providing information about pupils with SEND and looked-after children. Schools should also publish data on the number of pupils who have left the school.

Commissioning of alternative provision

65.Ofsted’s 2016 report on alternative provision found that the commissioning of AP is varied, describing a landscape where some schools use a fully centralised system, right through to schools commissioning solely in isolation.97 Ofsted also found that just less than a third of the schools they looked at systematically evaluated the quality of teaching and learning in the alternative provision they were commissioning,98 and the majority of staff working at the alternative providers in their sample had not attended any formal child protection training.99

66.Schools do not always have the capacity and specialist knowledge to have full responsibility for the commissioning of long-term placements for pupils who will often have complex needs. If, as we discussed in paragraph 52, local authorities are unaware of provision in their area, they too do not always have enough knowledge to make appropriate commissioning decisions. A fragmented approach to commissioning responsibilities and a lack of oversight and scrutiny around decisions means that pupils are being left vulnerable to inappropriate placement decisions.

Fair Access Protocols

Admissions

67.Every local authority is required to have a Fair Access Protocol (FAP) in place, developed in partnership with local schools.100 FAPs are designed to ensure that pupils who do not have a school place are able to find one quickly, so that their time out of school is kept to as little as possible.101 This would include pupils who do not have a mainstream place due to exclusion, or already being in alternative provision. However, we heard that there is significant variation in how they are run and managed, and how well they work.102 We heard that where providers thought FAPs were working, they said that the protocol was shared by all schools,103 met regularly,104 and included peer challenge.105

68.However, despite clear evidence of good practice and systems that do work, we were concerned to hear that systems can be put in place that benefit schools and disadvantage pupils:

I think there is almost a misunderstanding or a lack of willingness to understand that the purpose of fair access protocols, as far as I am aware, is as the local authority’s vehicle for the most vulnerable children to be brought back, discussed and ideally put back into a mainstream school. Where those protocols are set up, which they are in some cases, to protect schools and enable them to put up barriers to taking children back, it becomes a way of keeping children in alternative provision.106

The National Association of Virtual School Heads told us that in some areas access to AP is controlled by groups of headteachers who fund and gatekeep provision and their criteria do not include looked-after children who have just arrived in the local authority.107

Reintegration

69.We heard that sometimes reintegration of pupils back to mainstream school does not happen.108 Reintegration can be much harder for pupils in key stage 4, who may actually benefit from staying in alternative provision.109 We also heard that a lack of ambition can inhibit reintegration.110 We also note that where there are selective local authorities, this can place a greater amount of pressure on schools as there are a smaller number of schools that are able to take pupils returning from alternative provision.111 Ralph Holloway from Essex County Council suggested that schools can opt-out, telling us:

Our fair access protocol works very much on a district basis, so it would be equivalent to a smaller authority. It is only as strong as the individual schools within it and their commitment to the fair access protocol, and that is the difficulty.112

70.We were told that when mainstream schools are reluctant to accept pupils from AP, and where they fail to provide a rapid return to mainstream, this can lead to some pupils feeling rejected. London South East Academies Trust suggested that pupils can often be reliant on the benevolence of headteachers, rather than the system, in order to return to mainstream school.113 We were privately told that there are certain types of schools that do refuse to accept pupils who are returning from AP. We further heard that there is a lack of scrutiny about decisions that are being made and no challenge about decisions that are made:114

In terms of getting kids back from alternative provision into mainstream or for a child who has been permanently excluded, there should be fair access protocols that allow in-year admission. If a child has been excluded they should be able to get back into a mainstream school using these fair access protocols. There is no scrutiny of how they are used. Basically we would say there is no scrutiny virtually at every level in this system.115

We were disappointed that the Minister was not able to tell us who was accountable when schools do not co-operate. When asked who was accountable when schools in some areas do not sign up to them, he told us that it “is about professionals co-operating together.”116 When pressed further about what happens when schools do not take part, he told us that schools are not entitled to do so, and assured us that the Exclusions Review being undertaken by Edward Timpson would look at this.117

71.The best Fair Access Protocols work well because they are local and understand the needs of their communities. However, this is not always the case, and it is not right that some schools can opt out of receiving pupils back to mainstream schools or following the Fair Access Protocol.

72.Government should issue clearer guidance on Fair Access Protocols to ensure that schools understand and adhere to their responsibilities and encourage reintegration where appropriate. No school should be able to opt-out and if necessary either the local authority or the DfE should have the power to direct a school to adhere to their local Fair Access Protocol.

73.There is too little consistency around the process of exclusion and referral to AP. We have heard too much that suggests that there is not the focus on collaboration and community that is described by Dr Gazeley:

One of the issues around resource and responsibility is the sense that the schools that we looked at were sites of good practice and we scoped them very carefully, but that sense that their collective responsibility is within local communities. Sometimes the solutions do not lie solely within the grasp of the individual school, which is partly why some of the focus on alternative provision within our particular study was about co-development of solutions across local context, which was very much thinking about what is it that young people might need, with a very positive, flexible, resourceful mindset, rather than thinking about it as punitive, places overflowing because children are not wanted.118

74.We think that there is a lot to learn from the existing Virtual School Head model for looked-after children. Local authorities’ duties to looked-after children include promoting their educational achievement. The Children and Families Act 2014 required local authorities to employ someone to carry out that duty: Virtual School Heads. Among other things, Virtual School Heads advise on educational provision for looked-after children; track and monitor the progress and achievements of their pupils, support and quality assure the Personal Education Plan process and advise on the use of the Pupil Premium Plus. They act as the educational champion for their virtual school cohort.

75.We see no reason why a similar role and duty should not be created with responsibility for children in alternative provision. The duties of this role would include maintaining a list of all pupils being educated in AP, ensuring that appropriate monitoring of placements takes place by the commissioning schools and where a child is placed by the local authority monitoring the quality of provision and outcomes of the pupil. It would also include supporting the commissioning of appropriate alternative provision and acting as an advocate for the best interests and views of the pupil. This role would create a mechanism by which Fair Access Protocols were consistently co-ordinated and overseen, Fair Access Panels were attended and schools challenged where they refuse to accept pupils.

76.There should be greater oversight of exclusions and the commissioning of alternative provision for all pupils by the local authority. These children need a champion, and schools need both challenge and support.

77.There should be a senior person in each local authority who is responsible for protecting the interests and promoting the educational achievement of pupils in alternative provision, which is adequately resourced. This role and post-holder should be different from that of the Virtual School Head for Looked-After Children.


63 Peterborough Pupil Referral Service (ALT 30) para 2.1

66 Nacro (ALT 69) para 1.2

67 Parent of a pupil with experience of alternative provision

68 Ms Diana Robinson (ALT 16) para 5.4; The Engage Trust (ALT 32) para 7

74 Independent Parental Special Education Advice (ALT 74) para 11

75 DfE, Alternative provision, January 2013 p 12

76 The CE Academy (ALT 14) para 40.2

78 IPPR, Making the Difference, October 2017 p 35

79 FFT Education Datalab, ‘What we’ve learnt about the independent alternative provision sector’, accessed July 2018

80 IPPR, Making the Difference, October 2017 p 35

81 Parent of a pupil with experience of alternative provision

82 DfE, Improving alternative provision, March 2012 pp 9–10

83 Essex County Council (ALT 84) para 5.3

86 Young person with experience of alternative provision

88 Pendlebury Centre PRU (ALT 12) para 1.6

89 The Engage Trust (ALT 32) paras 3–4

93 NASUWT (ALT 57) para 16; NEU (ALT 41) para 13

95 ADCS (ALT 39) para 8

97 Ofsted, Alternative Provision, February 2016, p 10

98 Ofsted, Alternative Provision, February 2016, p 28

99 Ofsted, Alternative Provision, February 2016, p 6

102 Q183 [Emma Bradshaw]; Q185 [Joanne Southby]; Qq430–431 [Sue Morris-King]

103 London East Alternative Provision (ALT 25) para 15

104 London East Alternative Provision (ALT 25) para 19

105 Headteachers’ Roundtable (ALT 13) para 1.2; Q429 [Stuart Gallimore]

106 Q185 [Joanne Southby]

107 National Association of Virtual School Heads (ALT 61) para 8

108 Lancashire PRU Headteachers (ALT 36) para 3.2; Q422 [Sue Morris-King]

109 Mr John Watkin (ALT 45) para 2.4

110 Office of the Children’s Commissioner (ALT 79) para 17

111 The Limes College (ALT 8) para 20

113 London South East Academies Trust (ALT 43) para 36

114 Ms Diana Robinson (ALT 16) para 1.3; Q188 [Emma Bradshaw]

115 Q73 [Matthew Dodd]




Published: 25 July 2018