If you think your child’s exclusion from school amounts to disability discrimination, this guide will help you appeal to the First-tier Tribunal (special educational needs and disabilities), also known as the First-tier Tribunal (SEND). You need to do this within six months of the exclusion.

The tribunal deals with claims against all types of schools and local authority nurseries, but not private nurseries, further education colleges or higher education institutions. For information on further and higher education, please read our guide to Disability discrimination in further and higher education (Great Britain).

What’s the legal definition of a 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.’ Autism is generally accepted to be a mental impairment 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’s important to explain within your claim how their disability 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.

What types of disability discrimination are there?

Before you lodge a claim, you’ll need to have a clear understanding of what type of disability discrimination has occurred. There are three main types relevant to exclusion:

• indirect discrimination
• discrimination arising from disability
• a failure (of the school) to make reasonable adjustments

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 occasions 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 is when a disabled person is treated unfavourably because of something related to 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.

A failure to make reasonable adjustments

Both types of discrimination above usually occur alongside a school’s failure to make reasonable adjustments. These are changes a school must make so your child can participate in their education and enjoy the other school facilities the school offers. Schools have a duty to make reasonable adjustments so that your child isn’t put 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 accounted for the pupil being autistic. By applying a generic policy or plan, the school may has 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).

However, best practice in this example would have been to prepare the child for the change in seating arrangements before 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’s reasonable to take these steps.

The term ‘reasonable’ is not dened in the Equality Act, but things that are likely to be considered are the:

• extent to which such adjustments would overcome the disadvantage
• 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 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, a school doesn’t have to alter or remove physical features of its building, but it does 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 guide to Disability discrimination in schools.

Not all discrimination is unlawful

Indirect discrimination and discrimination arising from disability are not automatically unlawful. The school has a valid defence if it can show that its decision to exclude was ‘a proportionate response to a legitimate aim’. Examples of legitimate aims may be:

• the school 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 disruptive.

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

What can I expect from the tribunal?

The First-tier Tribunal (SEND) is a legal body, independent from the school and local authority. They’ll examine your claim and evidence, along with the school’s response and evidence, and then decide whether the exclusion is unlawful disability discrimination. If the tribunal finds in your favour, 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 rewrite its policy and/or issue an apology to you and your child.

These remedies can apply to both state and independent schools, as was confirmed in recent caselaw.

The tribunal cannot offer any financial compensation. You’ll be asked on the claim form what your preferred remedies are. You may be able to access legal aid to help you prepare your disability discrimination claim.

To see if you’re eligible, you can check the criteria and availability of legal aid funding on the gov.uk website.

How do I make a claim?

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

• lodge your claim
• submit evidence
• register the appeal
• the responsible body's response
• responding to the responsible body’s response
• choose witnesses
• the hearing
• the outcome

Lodge your claim

The first and most important step in the claim process is filling out the claim form. You must do this within six months of the exclusion, or latest exclusion.

If you’re asking the headteacher to reinstate your child following permanent exclusion, you’ll need to use the SEND 26A form. If you’re challenging a temporary or permanent exclusion, but do not want your child reinstated, you’ll need to use the SEND 4A form.

The claim form is your chance to explain, in clear and concise detail, the events that led to your child’s exclusion and why you think the exclusion is discriminatory.

If your child has been excluded more than once in the last six months, you can mention these on the claim form, but it’s important not to merge different exclusions together.

For each individual exclusion you should 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 your child has an education, health and care (EHC) plan, highlight any provisions that, if not implemented, may have contributed to your child’s behaviour.

5. If the reason for exclusion was to maintain a high standard of behaviour in the school or to maintain health and safety, what other action could the school have taken instead of excluding your child? For example, contacting Child and Adolescent Mental Health Services (CAHMS) or another outside agency for advice.

In order to present a strong and persuasive argument, you should aim to cover all the above points on your claim form. Don’t feel limited by the amount of space on the form. You’re allowed to attach separate sheets or documents and it may help your claim.

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

• properly consider your child’s autism in relation to their behaviour
• explore whether alternative strategies could have been tried to prevent the distressed behaviour that led to permanent exclusion
• explain to you that your child was at risk of permanent exclusion
• call an emergency annual review of your child’s EHC plan (if they have one)?

Submit evidence

To strengthen your claim, try to provide evidence to support your points. For example, if you’re stating that your child’s distressed behaviour is linked to being autistic and having unmet needs, reference evidence from professionals that clearly illustrates this, such as:

• your child’s EHC 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. It should show how being autistic impacts on your child as an individual. If you feel your child’s exclusion could’ve been prevented by the school making reasonable adjustments, try to include evidence of this. For example, that the school were aware of the triggers for your child’s distressed behaviour, but hadn’t 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 local authority, or think there may be information you haven’t received, you can make a subject access request. The school has one month to respond to your request. If you need information sooner you can submit a SEND 7 form to the tribunal. This requests that they order the school to release a particular document, such as a risk assessment, that could include information that helps your claim.

Register the appeal

If your claim is within the tribunal’s jurisdiction and timescales, it’ll be registered and a hearing date set. You must name any witnesses you’d like to call by this date. You’ll also be given a date by which the governing board of the school (referred to as the responsible body or RB) must provide a full response to your claim.

If you want to amend any dates, or you need further time to get documents to the tribunal, you’ll need to request this on the SEND 7 form.

The responsible body’s response

It’s not unusual for schools to instruct a solicitor to represent them in a disability discrimination claim. Their response may include technical legal jargon that you’re unfamiliar with. In practice though, most disability discrimination claims will be based around one of two main defences:

1. They may state that while 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 EHC plan. The school may summarise this by stating that the exclusion was ‘a proportionate means of achieving a legitimate aim’, meaning that although your child was treated unfavourably, this was justied 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 consider 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 it had tried all strategies available to it 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 don’t have to provide a counter-response to the school’s response, but it’s a good idea to correct any signicant factual errors that are directly relevant to the appeal.

It’s also important to address the school’s justication for the exclusion. This could be by linking your child’s behaviour to being autistic and/or by showing how the school’s response was not proportionate because it 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.

Choose witnesses

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

The hearing

The hearing will be held in a local tribunal venue, usually within two hours travel of your home.

The tribunal is made up of a judge and two ‘lay members’. The judge is legally qualied 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 ask both you and the school questions. At the beginning of the hearing you’ll be asked to explain why you’ve brought the claim and at the end you’ll 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 you’re not disadvantaged by not having legal representation.

The judge’s role is to try to establish exactly what happened and they’ll be very familiar with the legal denitions of disability discrimination. As long as you explain clearly what happened, and how it’s 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’ll write to you and the school with details of their decision. This is usually 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. This must be within 28 days of the decision. The school can also make a further appeal if they disagree with the tribunal's decision. We strongly advise that you seek legal advice before appealing.

A recent change in the law worth noting

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 loophole has been closed and the tribunal will be following this judgement when deciding all future cases.

Further help

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

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

The First-tier Tribunal (Special Educational Needs and Disability) handles 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