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• 28 Jan 2026

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Dear Ms Bullen,

The answer to you questions is Yes - but!

Thank you for your message, and I am sorry you and your family are having to manage this alongside everything else. From what you describe, this is a demanding situation for any parent, and it is entirely reasonable to want clarity about what the school can do, and what steps you can take to protect your son’s education and wellbeing.

Please note at the outset that the following is general guidance only, based on the information you have shared. It is not legal advice, and I have not seen the school’s records or correspondence.

1) Suspensions: what a school is (and is not) allowed to do

A school can suspend a pupil only on disciplinary grounds, and the decision must be taken by the headteacher (Education Act 2002, s.51A; and the Education (Pupil Exclusions and Exclusion Reviews) (England) Regulations 2012). Suspensions must be properly recorded and confirmed to parents in writing, with reasons (2012 Regulations; and Department for Education statutory guidance on suspensions and permanent exclusions). A school must not use informal or unofficial “send home” arrangements in place of the formal suspension process.

A child can be suspended for a fixed period (or multiple fixed periods), but there is an annual legal limit on the total number of days a pupil can be suspended within an academic year (Education Act 2002, s.51A).

Where a child has special educational needs and/or a disability, the school (or, more specifically, the responsible body) is expected to take those needs into account when making decisions about sanctions, including suspension (Equality Act 2010, Part 6; and the DfE statutory guidance referred to above). Decisions should be rational, fair, proportionate, and based on the facts (DfE statutory guidance).

2) How this applies to your situation (trusted adult / 1:1 support)

On the facts you describe, a key issue is that the incident leading to the most recent suspension occurred because the agreed supervision arrangement was not in place — i.e., your son’s “trusted adult” was not with him and, as you put it, no adult was.

Where a school has agreed a plan that requires a trusted adult (or 1:1 support) at all times due to safety risk, flight risk and/or risk to others, and the school then fails to implement that plan, that is highly relevant to whether a suspension is fair and proportionate in the circumstances (DfE statutory guidance; and Equality Act 2010 duties noted below).

In practical terms, the school should be able to explain clearly:
(a) why the agreed supervision arrangement was not followed on that occasion;
(b) what steps it has taken to prevent this happening again (for example: rota arrangements, handovers, staff briefings, and contingency cover); and
(c) whether it has identified new triggers and updated its approach, rather than repeating reactive sanctions.

3) Equality Act: possible disability discrimination issues

You asked whether the school can “really” suspend him when it is not sticking to what has been agreed. It can suspend in principle, but the Equality Act may be relevant depending on the circumstances.

A formal diagnosis is not always the decisive factor. What matters is whether your son is likely to meet the legal definition of disability (Equality Act 2010, s.6), and whether the school/responsible body knew (or should reasonably have known) about the disability-related difficulties (Equality Act 2010, ss.20–21 and associated case-law principles). From what you have described — longstanding paperwork from age 3, current SEN Support, a behaviour plan, and continuous 1:1 support — it is likely the school would be treated as having sufficient knowledge of his needs for Equality Act purposes.

Two legal concepts are often most relevant in cases like this:

(a) Discrimination arising from disability** (Equality Act 2010, s.15)
This can arise where a child is treated unfavourably because of something connected to their disability (for example, a behaviour that is a manifestation of unmet needs), unless the responsible body can show the sanction was a proportionate means of achieving a legitimate aim. In practice, it may be difficult for the responsible body to establish this justification where reasonable adjustments have not been made, or where agreed adjustments have not been implemented reliably.

(b) Failure to make reasonable adjustments** (Equality Act 2010, ss.20–21)
Schools have a duty to take reasonable steps to avoid disabled pupils being placed at a substantial disadvantage. This can include adjustments to behavioural expectations, supervision arrangements, and how sanctions are applied. These duties sit alongside the public sector equality duty (Equality Act 2010, s.149).

Where a school has agreed an adjustment (such as trusted-adult supervision) but does not implement it reliably, and then sanctions the child for behaviour that occurs in the absence of that adjustment, that sequence can raise obvious questions. It does not automatically mean the school has acted unlawfully, but it is an issue the school should be required to address directly and transparently.

4) Practical next steps you may wish to take now

You may find it helpful to write to the headteacher (and copy the SENCO) to request clarity and a reset. For example, you could ask for:
(a) the written confirmation of each suspension and the reasons given (Education Act 2002, s.51A; 2012 Regulations; DfE statutory guidance);
(b) the school’s account of what supervision was in place at the time of the incident;
(c) how the school is operationalising the “trusted adult at all times” requirement (including cover arrangements);
(d) what steps it has taken to identify triggers and reduce risk (rather than relying on repeated suspensions); and
(e) an urgent review meeting to update the support plan/behaviour plan, including a clear, workable supervision protocol.

Keeping the tone calm and factual tends to be most effective, and it also helps create a clear paper trail.

If those steps do not lead to meaningful change, you may also wish to consider (as a separate option) whether to pursue a disability discrimination claim in the First-tier Tribunal (Special Educational Needs and Disability), which is the usual forum for disability discrimination complaints against schools (Equality Act 2010, Part 6, s.85). That is not a step to take lightly, and it is not always necessary; however, it can be an appropriate route where informal resolution and the school’s internal processes do not address the underlying Equality Act issues. Given the procedural and evidential requirements, you would usually be well advised to seek specialist support with any claim unless you are already confident in this area.

 5) Whether to consider an Education, Health and Care (EHC) needs assessment

Separately (and importantly), you may wish to consider whether your son now needs an EHCP.

Repeated suspensions in Year 1, combined with an assessed need for 1:1 “at all times” support for safety and regulation, are indicators that SEN Support may not be sufficient or secure. In that context, it is often appropriate to consider an EHC needs assessment (Children and Families Act 2014 (“CFA 2014”), ss.36–38).

The test for requesting (and deciding to carry out) an EHC needs assessment is deliberately low.** If a child **has or may have** special educational needs, and it **may be necessary** for special educational provision to be made via an EHCP, a parent can request an assessment (CFA 2014, s.36(8)).

If an assessment is carried out, **the test for issuing an EHCP is higher**: whether it is **necessary** for special educational provision to be made in accordance with a plan (CFA 2014, s.37).

A further potential benefit of an EHCP is that it can address more than education**, including health and social care needs and provision (CFA 2014, ss.21–22).

Timescales. The statutory timetable is set out in the Special Educational Needs and Disability Regulations 2014 and explained in the SEND Code of Practice. Subject to limited exceptions, the overall process from request to final plan should be completed within a fixed maximum timeframe (commonly referenced as 20 weeks).

If you choose to request an EHC needs assessment, the request is made directly to the local authority (CFA 2014, s.36). It is usually helpful to include:
(a) the long-standing history of needs and impact (including evidence from age 3 onwards);
(b) the current SEN Support plan and behaviour plan;
(c) a short chronology of the suspensions (dates, duration, reasons, and immediate context);
(d) the rationale for the “trusted adult/1:1 at all times” provision, and evidence of the consequences when it is not delivered; and
(e) any information showing that existing support is not consistently preventing loss of education or deterioration in regulation or safety.

Finally, it may be useful to look at the SSK material (the Noddy Guide and the disability guidance), Department for Education guidance on suspensions and exclusions, relevant disability discrimination guidance, the SEND Code of Practice, and the technical guidance issued by the Equality and Human Rights Commission. All of these resources are available to download.

Best wishes,

Sean Kennedy


 



Sean Kennedy

28 Jan 2026

This is helpful

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