This guide is for families who believe that their child’s fixed-term or permanent exclusion from school constitutes disability discrimination under the Equality Act 2010 and who wish to make a disability discrimination claim to the First-tier tribunal (special educational needs and disabilities), also known as First-tier tribunal (SEND).

The First-tier tribunal (SEND) can consider such claims in relation to all types of schools and local authority nurseries, but not private nurseries. It also cannot consider claims relating to further education colleges nor higher education institutions. For information on further and higher education please read our Disability discrimination in further and higher education (Great Britain) guide.

Here we explain:

Definition of disability

The Equality Act 2010 Guidance states that a person has a disability if:

“they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities.”

Mental impairments include autism, generally accepted to be a disability for the purposes of the Equality Act. However, your child does not necessarily need a diagnosis of autism to be considered disabled; what matters is the effect of the ‘impairment’, not the cause.

Whether or not your child has a diagnosis, it is important to explain within your claim how being autistic has a substantial and long term effect on your child’s ability to carry out normal day to day activities – this may include holding a conversation or concentrating on lessons.

Disability discrimination

Before lodging a disability discrimination claim against an exclusion you will need to have a clear understanding of what type of discrimination has occurred. There are three main types of discrimination which may occur if your child is excluded:

Indirect discrimination

Indirect discrimination is when a school policy or practice is applied in the same way to everyone but puts a disabled pupil at a disadvantage.

Example 1

A school has a policy stating that pupils who break the school rules on three occa-sions will automatically be given a detention. Autistic pupils may break rules without realising it or due to distress as a result of their unmet needs. Applying this policy without any flexibility is probably indirect disability discrimination 

Discrimination arising from disability

This occurs if a disabled person is treated unfavourably because of something to do with their disability and the treatment cannot be justified.

Example 2

An autistic pupil is excluded for flapping his arms at a supply teacher. The teacher was alarmed by what he perceived to be threatening behaviour. The pupil was distressed and had flapped his arms because the supply teacher had told him that they were doing an activity which meant he could not sit in his usual seat. Since the pupil’s reaction was connected to being autistic, the exclusion would be discrimination arising from disability.

Reasonable adjustments

Both of these types of discrimination usually occur alongside a school’s failure to make reasonable adjustments. Reasonable adjustments are changes made to ensure that your child can participate in education and enjoy the other facilities that school provides. Schools have a duty to make reasonable adjustments to avoid putting your child at a substantial disadvantage compared to non-disabled pupils.
 
In example 1, a reasonable adjustment could have been to make a personalised behaviour plan which took account of the pupil being autistic. By applying a generic policy or plan, the school may have failed to make reasonable adjustments as well as indirectly discriminated against the pupil. 
 
A reasonable adjustment in example 2 would have been to: 
  • inform the supply teacher that the child was autistic and would sometimes flap his arms when upset
  • allow the child to have some time-out (an agreed strategy when the child was upset).

Best practice in this example however would have been to prepare the child for the change in seating arrangements prior to the lesson.

When considering reasonable adjustments, schools should consider whether:

  • your child is at a substantial disadvantage, for example are they falling behind with coursework
  • this disadvantage could be avoided, for example by one-to-one support or specialist teaching
  • it is reasonable to take these steps?

The term ‘reasonable’ is not defined in the Act, but things that are likely to be taken into account are the:

  • extent to which the disadvantage would be overcome
  • extent your child is supported through special educational needs (SEN) legislation
  • resources the school has, and the costs and practicality of making the adjustment
  • extent to which your child will suffer if the reasonable adjustment is not made
  • health and safety requirements
  • need to maintain academic and other standards
  • interests of other pupils and prospective pupils. 

When making reasonable adjustments, responsible bodies do not have to alter or remove physical features of the school, but they have a general duty to plan for better access for disabled pupils. 

For more details on the types of discrimination your child’s exclusion may fall under, see our Disability discrimination in schools information.

A proportionate response to a legitimate aim

Indirect discrimination and discrimination arising from disability are not automatically unlawful. All schools have a valid defence if they can show that when they acted in a discriminatory manner the decision to exclude was ‘a proportionate response to a legitimate aim’.

Examples of legitimate aims may be:

  • that the school is seeking to ensure the health and safety of students and staff – for example if a pupil has been physically aggressive
  • to uphold academic and behaviour standards – for example if a pupil’s behaviour is considered to be disruptive.

There is usually very little scope for you to argue that the aims of school are not legitimate but you can challenge whether the exclusion was a ‘proportionate’ response. This means you can ask the tribunal to make a decision on whether it was fair and reasonable for the school to exclude your child, even where the school were pursuing a legitimate aim. More detail on how to challenge the proportionality of an exclusion is below.

The tribunal and what can it order

The First-tier Tribunal (SEND) is a legal body independent from the school and authority, They will examine your claim and evidence and the school’s response and evidence, and decide whether the exclusion is unlawful disability discrimination. 

If the tribunal makes a finding of disability discrimination, then they can order various remedies including:

  • overturning the exclusion and reinstating your child if they were permanently excluded
  • ordering the school to undertake staff training
  • ordering the school to re-write a policy and/or issue an apology to you and your child.

The tribunal cannot offer any financial compensation. You will be asked on the claim form what your preferred remedies are.

You may be able to access legal aid funding for the preparation of your disability discrimination claim. You can check the criteria and availability of legal aid funding via the Gov.uk website.

The steps involved

The process of making a claim of disability discrimination involves several stages, though you may not want or need to go through them all:

Lodging your claim

The first and most important step in the claim process is filling out the claim form. You must do this no later than six months after the exclusion or latest exclusion occurred.

If you are asking the head teacher to reinstate your child following permanent exclusion then you need to use form SEND 26A.

If you are challenging a temporary exclusion or a permanent exclusion where you are not wanting your child reinstated, you will need to complete the SEND 4 form.

The claim form is your chance to explain in detail, but in a clear and concise manner, the events that led to your child’s exclusion and why the exclusion is discriminatory. If your child has been excluded on more than one occasion you can mention these on the claim form as long as they occurred in the last six months. It is important not to merge different exclusions together.

For each individual exclusion you must make sure you include the following details:

  1. What exactly occurred during the incident, in a factual and neutral way.
  2. Why the behaviour during the incident was linked to your child being autistic or what actions/inactions by the school led to this behaviour. It can be useful to demonstrate how your child’s action was in fact distressed behaviour arising from unmet needs, as mentioned in the recent judgement below.
  3. Examples of reasonable adjustments/steps that could have been made by the school to prevent or reduce the distressed behaviour. Highlight if such steps had been previously agreed with the school but not implemented.
  4. If the reason for exclusion was to maintain a high standard of behaviour in the school or to maintain health and safety, what alternative course of action could the school have taken instead of excluding your child

In order to present a strong and persuasive argument you should aim to cover all of the above points in your claim form. You should not limit your detail to the amount of space on the form. It is acceptable and often beneficial to continue on to a separate sheet or document and attach this to your form.

In the case of a permanent exclusion you also need to comment on the head teacher and governing body’s reasons for the permanent exclusion. For example, when deciding to exclude your child did they:

  • properly consider your child’s behaviour in relation to them being autistic
  • explore whether alternative strategies could have been tried to prevent the distressed behaviour that led to permanent exclusion. 

Evidence

In order to strengthen your claim, you should try to provide evidence to support any points you make. For example, if you are stating that your child’s distressed behaviour is linked to being autistic and having unmet needs, then should reference evidence from professionals that clearly illustrates. This could be a copy of:

  • your child’s education and health care plan
  • a letter from your GP
  • your child’s educational psychology report
  • your child’s autism diagnostic report. 

Evidence should be accurate, relevant and support your claim. Try to ensure that evidence demonstrates how being autistic impacts on your child as an individual.

If you feel that your child’s exclusion could have been prevented by the school making reasonable adjustments, then try to include evidence that the school were aware of the triggers for your child’s distressed behaviour but had not followed agreed strategies found in their plans and/or professional reports, such as educational psychology, speech and language therapy, occupational therapy. Any relevant correspondence with the school, including meeting minutes, that mentions triggers and suggested strategies may also help.

If you have difficulty obtaining information from the school or authority, or think there may be information that you have not received, you can make a subject access request. The school have one month to respond to your request. If you need information sooner you can submit a SEND 7 form to the tribunal asking them to order the school to release a particular document that could include essential information that would be helpful to your claim, for example a risk assessment.

Registering the appeal

If the claim is within the tribunal’s jurisdiction and timescales, it will be registered and a hearing date set. You must name any witnesses you would like to use in the appeal by the date given. You will also be given a date by which the school (referred to as the responsible body) must provide a full response to the claim.

If you wish to amend any dates or need further time to get documents to the tribunal you will need to request any changes on the SEND 7 form.

The Responsible Body’s response

It is not unusual for schools to instruct a solicitor to represent them in a disability discrimination claim.

The school’s response may include technical legal jargon that you are unfamiliar with but in practice most disability discrimination claims will be based around one of two main defences:

  1. They may state that whilst they acknowledge your child is autistic, the behaviour that led to exclusion was not linked to autism. For example, if your child was excluded for hitting a member of staff, the school may argue that this behaviour was a violent episode unconnected to being autistic and that the exclusion was not unfavourable treatment because all children would be excluded for such behaviour.
  2. They may acknowledge that your child’s behaviour was linked to autism but the exclusion was justified because they had done everything they could to prevent such behaviour occurring, for example by employing all strategies listed in your child’s Education, Health and Care (EHC) plan. The school may summarise this by stating that the exclusion was “a proportionate means of achieving a legitimate aim”, - although your child was treated unfavourably this was justified when balanced against the needs of the school to have a safe environment for your child and others.

The more ‘extreme’ a child’s distressed behaviour is deemed, the more likely it is for the school to argue that exclusion was a proportionate response. 
However, when making their decision the tribunal must take into account what other options were available to the school and whether the school put in place reasonable adjustments to prevent the behaviour in the first place.

If a school argues that they had tried all strategies available to them to prevent a child’s distressed behaviour, you should be prepared to offer additional and alternative strategies and/or reasonable adjustments that were not employed or used effectively. It is then for the tribunal to consider whether the school’s exclusion was proportionate or not.

Responding to the Responsible Body’s response

You do not have to provide a counter-response to the school’s response but it is a good idea to correct any significant factual errors that are directly relevant to the appeal.

It is also important to address the school’s justification for the exclusion, usually by linking your child’s behaviour to being autistic and/or by showing how the school’s response was not proportionate because they could have tried alternative and/or additional strategies, such as seeking and following advice from others.

You can give your response in writing to the tribunal or in person at the hearing.

You may be approached by the school to resolve the claim outside of the tribunal. Some local authorities may offer informal dispute resolution services to assist you. For more information contact your local Information Advice and Support Service.

Witnesses 

Once you have decided what the most important points you wish to make at the hearing are, you can choose people who can best support these points and ask them to give evidence in person at the hearing. Witnesses must be able to give facts about the matter under dispute. 

The head teacher may act as the main witness for the school and will be asked questions by the judge at the hearing. They may also call other witnesses. You will have the opportunity to direct questions to any witnesses brought by the school.

Important Case law

A recent tribunal ruling confirms that schools must make sure they have made appropriate reasonable adjustments for autistic children, or those with other disabilities, before they can resort to exclusion.

Previously, a loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse' - even when that behaviour was caused by a lack of appropriate support.

However, this no longer applies and the tribunal will be following this judgement when deciding all future cases.

The Hearing

The hearing will be held in a local tribunal venue, usually not more than 2 hours from your home.

The tribunal is made up of a judge and two lay people members. The judge is legally qualified and chairs the hearing. The lay members must have knowledge of disability discrimination and will help the judge come to a decision about your claim. The judge will have read the paperwork and will have a number of questions to ask you and the school. At the beginning of the hearing you will be asked to explain why you have brought the claim and at the end you will be given the chance to sum up.

The school will usually be represented by a solicitor or barrister. Although many parents will not have legal representation at tribunals, the judge should attempt to make the tribunal a level playing field so that you are not disadvantaged by not having legal representation.

The judge’s role is to try and establish exactly what happened and they will be very familiar with the legal definitions of disability discrimination. As long as you explain clearly what happened and how it is linked to your child’s disability, the judge can apply the necessary disability discrimination law accordingly without you having legal representation.

The Outcome

Once the tribunal reaches a decision they will write to you and the school with details of their decision. You should receive the decision within 10 days of the hearing.

You have 28 days to ask the tribunal to overturn the decision but only for a very limited range of reasons. Alternatively, if you disagree with the decision due to an error of law you can ask for permission to appeal the decision, again this must be within 28 days of the decision. The responsible body can also make a further appeal if they disagree with the tribunal's decision. It is strongly advised that you seek legal advice prior to appealing.

Further help

Our Schools Exclusion Service offers advice and information to parents of children and young people on the autism spectrum on all aspects of school exclusion in England.

The Equality and Human Rights Commission aims to helping people understand their rights and responsibilities and improve compliance with the law.

First-tier Tribunal (Special Educational Needs and Disability) handle appeals against discrimination by schools or local authorities due to a child’s disability.

The Equality Advisory and Support Service advises and assists individuals on issues relating to equality and human rights.

Useful reading

Technical Guidance for Schools in England - Equality and Human Rights Commission

The Equality Act 2010 and schools - Department for Education

 

Last reviewed: 12 March 2019