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• 26 Aug 2025

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Too fact specific, I can't generalise.:

Dear Christina,

Thank you for sharing your concerns regarding your son and the recent exclusion from school. I recognise how difficult these circumstances are for you and your family, and your determination to ensure that your son receives the right support to remain included in education.

Please note that what follows is guidance only, not legal advice, and it is based only on the limited information you have provided.

1) Nature of the exclusion

From your description, it is not entirely clear whether your son has been given a fixed-term suspension or a permanent exclusion. However, the circumstances suggest that this may amount to a permanent exclusion. The Department for Education’s statutory guidance explains its terminology and makes clear that both suspensions and permanent exclusions are “types of exclusion”:

“‘Suspension’ is used to refer to what legislation calls an exclusion for a fixed period. Suspensions and permanent exclusions are both types of exclusion, and where this guidance uses the word ‘exclusion’ this includes both suspensions (fixed-period exclusions) and permanent exclusions.” (Suspension and Permanent Exclusion Guidance, August 2024, p.19)

The guidance also emphasises that exclusions are a last resort and must be considered alongside schools’ equality duties.

2) Importance of establishing the statutory framework for disability

The first step is to ensure that your son is recognised as having a statutory disability under section 6 Equality Act 2010—that is, a physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities.

It is important to stress that a diagnosis on its own is not enough; what matters is the effect of the impairment on everyday functioning.

The Upper Tribunal in C & C v The Governing Body of a School, Secretary of State for Education and National Autistic Society [2019] AACR 10, [2018] UKUT 269 (AAC) illustrated this. Judge Rowley explained (para 77):

“The current application of regulation 4(1)(c) acts as what Mr. Broach described as a ‘knockout blow’ to any claim under the 2010 Act.”

This confirms that children cannot automatically be excluded from the statutory definition of disability because their condition manifests in challenging behaviour.

Please note also that I have not used the terms neurodiversity or its variants, as these do not appear in the Equality Act 2010. I am not saying this critically, but simply in an attempt to provide objective guidance based on the statutory framework.

3) Why the reason for exclusion matters (s.15 Equality Act 2010)

Under section 15 Equality Act 2010, unfavourable treatment “because of something arising in consequence of” disability must be justified as a proportionate means of achieving a legitimate aim.

The Upper Tribunal in C & C made this point (para 78):

“So long as the school could show that the exclusion, for example, was a proportionate response… the exclusion would in all likelihood be a lawful one.”

• In The Governing Body of School T v AA & RA [2023] UKUT 311 (AAC), Judge Freer recorded that disability and unfavourable treatment were accepted; the only live issue was proportionality (paras 21–23).
• In SS v Proprietor of an Independent School [2024] UKUT 29 (AAC), Judge Stout stressed that tribunals must consider whether alternatives to exclusion were available when applying the proportionality test (para 3(c)).

The EHRC Technical Guidance for Schools in England reinforces this principle:

“A school must be able to show that any unfavourable treatment which would otherwise amount to discrimination arising from disability can be objectively justified as a proportionate means of achieving a legitimate aim.” (EHRC Guidance, para 6.22, p.92)

4) Possible flaws in the process

From what you describe, potential flaws include:

• Failure to make reasonable adjustments: In KTS v Governing Body of a Community Primary School [2024] UKUT 139 (AAC), the Tribunal said (para 27):

“…the fact that some adjustments have already been made does not mean that the statutory duty does not require further or different adjustments.”

The judgment also cited the EHRC Technical Guidance (paras 6.37, 6.39) to underline that even apparently minor steps may be reasonable when combined with other measures.

• Failure to comply with statutory guidance: The DfE guidance warns:

“For the vast majority of pupils, suspensions and permanent exclusions may not be necessary, as other strategies can manage their behaviour.” (p.3)
“For disabled children, this includes a duty to make reasonable adjustments to any provision, criterion or practice which puts them at a substantial disadvantage.” (p.10)

• Procedural fairness: Excluding your son because you could not attend a meeting on the same day (despite being available the following day) raises concerns of fairness and proportionality.

5) Possible next steps

Although I cannot advise you, you may wish to consider:

• Asking the school to confirm in writing whether the exclusion is fixed-term or permanent.
• Referring in correspondence to sections 20–21 Equality Act 2010, the DfE Suspension and Permanent Exclusion Guidance (2024), and the EHRC Technical Guidance, all of which stress that exclusions must be a last resort.
• Requesting SEND Assist involvement to assess your son’s needs and recommend inclusive alternatives.
• Keeping records of how exclusions are affecting his education and wellbeing.
• Continuing to stress your willingness to work collaboratively with the school.

 

6) Support Following Exclusion (for completion)

When a child is excluded, whether for a fixed period (suspension) or permanently, there are clear requirements in the statutory guidance regarding the support that must be provided. For a suspension, the school must take responsibility for the pupil during the first five school days, including setting work for completion at home (Exclusion Guidance 2024, p.28). From the sixth school day of a suspension, the school must arrange suitable full-time education (Exclusion Guidance 2024, p.29). Schools are also required to hold a reintegration meeting with parents and the pupil to plan how best to support the child’s return and to consider what further pastoral or SEN support may be needed to prevent recurrence (Exclusion Guidance 2024, pp.27–28). The guidance makes clear that schools must take account of equality duties at all stages, including the duty to make reasonable adjustments where behaviour is connected to disability (Exclusion Guidance 2024, pp.10, 59).

In cases of permanent exclusion, responsibility for arranging suitable full-time education transfers to the local authority, and this must be in place from the sixth school day (Exclusion Guidance 2024, p.30). This duty is not only policy but is underpinned by section 19 of the Education Act 1996, which requires local authorities to arrange suitable education for children of compulsory school age who, by reason of exclusion or otherwise, may not receive it. The education must be appropriate to the child’s age, ability, aptitude, and any special educational needs (Exclusion Guidance 2024, pp.30–31). Parents also have the right to make representations to the Governing Board and, if the exclusion is upheld, to request an Independent Review Panel (Exclusion Guidance 2024, pp.34–37). In both fixed-term and permanent exclusions, the overarching principle is that exclusion should only ever be used as a last resort, and steps must be taken to ensure continuity of education and appropriate support for the child’s wider needs (Exclusion Guidance 2024, p.19).

7) Final observations

The key issues in your case appear to be:

1. Whether your son’s impairments meet the statutory definition of disability under s.6 Equality Act.
2. Whether his behaviour arose directly from that disability.
3. Whether the school properly considered reasonable adjustments and alternatives before exclusion.
4. Whether the exclusion is fixed-term or permanent, and whether the proper legal process has been followed.

If these questions have not been adequately addressed, the exclusion may not be justified.

I hope this provides some useful pointers, and I look forward to reading any contributions from others.

Once again, Christina, this is guidance only and not legal advice. You may wish to seek independent legal advice or specialist SEND support if matters do not improve.

Best wishes,

Sean.

 

Sources and Links

1. C & C v Governing Body of a School; Secretary of State for Education; National Autistic Society [2019] AACR 10, [2018] UKUT 269 (AAC).
   https://www.bailii.org/uk/cases/UKUT/AAC/2018/269.html
2. The Governing Body of School T v AA & RA [2023] UKUT 311 (AAC).
   https://assets.publishing.service.gov.uk/media/6566fddae90e0700136f9e82/UA-2022-001519-HS.pdf
3. SS v Proprietor of an Independent School [2024] UKUT 29 (AAC).
   https://www.bailii.org/uk/cases/UKUT/AAC/2024/29.html
4. KTS v Governing Body of a Community Primary School [2024] UKUT 139 (AAC).
   https://www.bailii.org/uk/cases/UKUT/AAC/2024/139.html
5. Department for Education (DfE) – Suspension and Permanent Exclusion Guidance (August 2024).
   https://www.gov.uk/government/publications/school-exclusion
6. Equality and Human Rights Commission (EHRC) – Technical Guidance for Schools in England (updated July 2024).
   https://www.equalityhumanrights.com/en/publication-download/technical-guidance-schools-england

 



Sean Kennedy

26 Aug 2025

This is helpful

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