Exclusion decisions must comply with the Equality Act 2010. Unlawful discrimination may occur if a pupil is excluded because of a protected characteristic, if a policy or practice indirectly disadvantages pupils with such characteristics, or if reasonable adjustments are not made for a disabled pupil. This page outlines how discrimination claims can be made and where they are heard.
Please see Vulnerable pupils for more guidance on discrimination.
Claims of disability discrimination
Where is the claim made to?
A claim of disability discrimination is made to the First-tier Tribunal (Special Educational Needs and Disability).
What’s the time limit to make a claim?
The claim must be received by the tribunal within six months of the alleged discrimination.
Who is the claim made against?
A claim will need to be made against the responsible body. The “responsible body” is the governing body or the local authority for maintained schools and the proprietor in the case of independent schools, academies or non-maintained special schools
What needs to be shown?
If a claim is made, it will be necessary to establish the following:
- that the alleged discrimination was connected to a disability; and
- the specific outcome being sought from the tribunal.
What are the claim forms?
- Permanently excluded child, requesting reinstatement: Form SEND26A
- Permanently excluded child, not requesting reinstatement: Form SEND4A
- Suspended child, or disability discrimination claim not involving exclusion: Form SEND4A
Remedies
The person making the claim will be asked what they want to happen if the tribunal finds unlawful discrimination. The tribunal can require the responsible body to take reasonable steps to fix the effects of the discrimination. For a child who has been permanently excluded, this could include reinstatement. The law does not allow compensation to be paid.
Dual routes: Tribunal and exclusion appeal
A parent is entitled to apply for a review of the exclusion by an Independent Review Panel (IRP) as well as make a claim of discrimination to the tribunal. If an application is made to the IRP, the tribunal will stay (put on hold) any claim relating to the permanent exclusion until the outcome of the review is known.
If a tribunal claim is made regarding a permanently excluded pupil, it is important that any claim which could result in an order for reinstatement is heard quickly. The tribunal will follow an expedited timetable in such cases, so a decision can be reached within six weeks.
Claims involving other protected characteristics
Where is the claim made to?
A claim is made to the County Court.
What’s the time limit to make a claim?
The claim must be received by the County Court within six months of the alleged discrimination.
Who is the claim made against?
A claim will need to be made against the responsible body. The “responsible body” is the governing body or the local authority for maintained schools and the proprietor in the case of independent schools, academies or non-maintained special schools.
What is the claim form?
The claim form is Form N1, and guidance notes are provided in Form N1A.
Remedies
Examples of potential remedies are listed below:
- Quashing order;
- for example, in the case of exclusion, a decision to quash the governing body’s decision to uphold the decision to exclude.
- Damages for injury to feelings;
- Any other damages (where appropriate) sustained as a result of the discrimination,
- for example, the cost of home tutoring.
Is legal aid available in discrimination claims?
Discrimination remains within the scope of legal aid, in both claims to the SEND Tribunal and to the County Court.
To find out if you might be able to get legal aid, visit the GOV.UK website or call Civil Legal Advice on 0345 345 4345.
Can the Local Government Ombudsman consider a complaint?
Where a pupil has been permanently excluded from a school maintained by the local authority, and the exclusion has been considered by an Independent Review Panel (IRP), there is the option of making a complaint to the Local Government and Social Care Ombudsman (LGSCO) about the way in which the IRP carried out its review. The LGSCO cannot overturn the exclusion itself, but can investigate whether the panel followed the correct process and acted fairly.
A complaint should usually be made within 12 months of the IRP decision.
What will the LGSCO look for?
If a family makes a complaint about an IRP hearing, the LGSCO can consider whether the panel acted wrongly in the way it dealt with the review and whether this caused disadvantage to the family. Issues that may be examined include:
- The way in which the panel carried out the review
- The procedures the panel followed
- Whether the family was given a fair hearing
- Whether the family was offered the opportunity to have a special educational needs (SEN) expert present if they believed SEN was a factor in the exclusion
- Whether the panel properly considered all the evidence
- Whether the panel reached a lawful decision
What happens if the LGSCO finds that the council was at fault?
The LGSCO cannot overturn the decision of the IRP. However, if it is found that there was something wrong in the way the panel dealt with the review that may have affected the outcome, the LGSCO may ask the council to arrange a fresh panel to hear the review again in a fair way. The LGSCO may also ask the council to review its procedures or the training it provides to members of the panel.