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• 20 Jun 2025

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Can't answer yes or no.:

Dear Ms Rennie,

 

I was sorry to read about the situation described. As I’m sure you will appreciate, we are unable to provide legal advice, but the following general guidance may be of some assistance.

 

Legal Framework: Exclusions and Off-Site Placements (England)

Under English law, a school may only remove a pupil from class through formal procedures. If a pupil is to be excluded (suspended), even for a short period, the school must issue a written notice to the parent, clearly explaining the reason and outlining any follow-up arrangements.

 

Sending a child to another setting following a behavioural incident—without using the official exclusion process—may amount to an informal or unofficial exclusion, which is unlawful. Government guidance makes it clear that schools are “not allowed to just send a child home ‘to cool off’” or place them elsewhere without proper documentation. Any removal for disciplinary reasons must be confirmed in writing. Even if a parent agrees, this does not make the exclusion lawful.

 

Further information:
GOV.UK – A guide for parents on school behaviour and exclusion

 

Only local authority-maintained schools (not academies) may lawfully direct a pupil off-site under Section 29(3) of the Education Act 2002, and even then the arrangement must be temporary, regularly reviewed, and with a clearly stated purpose (e.g. to improve behaviour). See:


Education Act 2002 – Section 29

 

If a school is relying on this provision, it must set out:

 

• Why the placement is necessary;
• Where the pupil will attend;
• How long the arrangement will last;
• How the placement will be reviewed.

 

Academies, by contrast, cannot compel a pupil to attend another setting without parental consent. Any such arrangement should be a voluntary managed move, formally agreed in writing.

 

Summary: If a child is being sent to another site without a suspension letter or the informed written consent of the parent or carer, it is likely that this falls outside the lawful exclusion process.

 

Children with Special Educational Needs (SEN) Without an EHCp

Even if a child does not have a formal diagnosis or an Education, Health and Care Plan (EHCP), they may still be considered as having Special Educational Needs (SEN) and could be protected under the Equality Act 2010; this statute includes protection from discrimination as a result of the protected characteristic of disability – if the person meets the definition of disability - which is something that could be considered in the example given.

In practice, this means a school should:

 

Consider whether the behaviour is linked to ‘undiagnosed’ SEN - though what this means is, with respect,  not clear;

• Avoid labelling the pupil as “naughty” without exploring underlying needs;
• Make reasonable adjustments to avoid disadvantage.

Government guidance stresses that schools should:

• Avoid excluding pupils with SEN wherever possible;
• Plan additional support;
• Work in partnership with parents and, where needed, the local authority.

 

Even without an EHCP, a child with SEN should have a SEN Support Plan, and the school must follow the SEND Code of Practice—identifying needs, monitoring outcomes, and adjusting provision accordingly.

If a child’s needs appear significant, a parent may:

 

• Request an Education, Health and Care needs assessment from the school or local authority; or
• Apply directly to the local authority themselves.

 

General Steps a Parent May Wish to Consider

1. Seek written clarification
A parent could ask the school to explain in writing:

 

• Why the pupil is being sent off-site;
• Whether this is a formal exclusion (including a letter with dates and reasons);
• If the school is relying on Section 29(3), how they are meeting the legal requirements.

 

If there is no paperwork and no informed consent, the parent may wish to state that the arrangement appears to be an unlawful informal exclusion.

 

2. Discuss support and reasonable adjustments (which could include auxillary aids) 
It would be advisable for a parent to meet with the school’s SENCO or pastoral team. They could explain how the behaviour is related to unmet SEN and request a review of the current support. The school should consider alternatives to exclusion, such as:

 

• A calm or sensory space;
• Short breaks within the school day;
• Mentoring or emotional support;
• De-escalation strategies.

 

Parents might wish to reference government guidance and remind the school that exclusion in response to behaviour linked to a disability may amount to discrimination under the Equality Act 2010.

 

3. Use the school’s complaints procedure
If a parent believes the school’s actions are unlawful (for example, removing a child without following exclusion procedures), they should raise concerns through the formal complaints process—starting with the headteacher, then escalating to the governing body if needed.

It is important to:

 

• Keep records of all incidents and communications;
• Refer to the school’s behaviour, SEN, and exclusion policies;
• Raise any concerns about discrimination or failure to meet SEN duties in writing.

 

Parents should also be aware that a disability discrimination claim to the First-tier Tribunal (Special Educational Needs and Disability) must generally be brought within six months of the discriminatory act.

 

4. Seek independent support and advice
There are several organisations that offer free advice and support:

• SOS!SEN
• IPSEA
• The School Exclusion Project

 

5. Consider requesting an EHC needs assessment - note a diagnosis is not required


If a child’s needs are significant, a parent can apply for an EHC needs assessment directly from their local authority. The Noddy Guide provides helpful answers to the following questions:

 

 

03.01 What are the obligations of an LA in relation to children who have SEN but do not have an EHCP?

 

03.02 What are the obligations of a school or similar institution in relation to CYPs who do not have an EHCP?

 

 05.01 Are there any particular rules about when an LA has to undertake statutory assessment of a child or young person’s SEN?

 

05.02 Does a child or young person automatically get an EHCP following a statutory assessment? 

 

 

6. Legal aid eligibility


If a parent believes they may be eligible for legal aid, this can be checked by contacting: 0345 345 4 345

 

I hope this general guidance proves useful, and I look forward to reading any other contributions with interest.


Sean Kennedy



Sean Kennedy

20 Jun 2025

This is helpful

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