We won a legal point on unlawful exclusion and cleared my disabled son’s name

Adoptive parents expect their new child may deal with issues such as attachment, after living through prior traumatic circumstances, both pre and post-birth. It’s also not unusual for adopted children to have special educational needs. But what one adoptive family didn’t expect was to end making an important legal clarification ruling about school exclusion...

The family in today’s article have two adopted children. Both were soon diagnosed with ADHD, social difficulties, and sensory processing disorder. But the parents were shellshocked when their 10-year-old son was excluded for "aggressive behaviour" from the well-known private school where they had enrolled him.

They believed the school had discriminated against their son because of his disability and took their case to the First-Tier Tribunal (FTT). They won their case, with the Tribunal finding the exclusion was unlawful and disproportionate. It found the school had failed to try other measures first and the headmaster had behaved inconsistently in actions against other pupils for similar behaviour.

The school appealed to the Upper Tribunal, saying the FTT didn’t have the jurisdiction to order it to reinstate the child. It lost the appeal. The Upper Tribunal judge ruled the FTT did indeed have power to make binding orders in a disability discrimination claim against a school, including ordering that a child who had been unlawfully excluded be reinstated.

Those are the bare bones of the story. But what is the family’s side? What effect has it had on them and why did they go to such lengths? This is their story in their own words as told to Special Needs Jungle - they have used pseudonyms to maintain their anonymity.

Being told that your child has been excluded from school is something no parent wants to hear. For parents whose kids have special educational needs, the shock can be even harder to cope with. For us it was a thunderbolt. We hadn’t seen it coming and we were completely knocked sideways, particularly as our son has additional needs.

We adopted our children Bobby and Emily when one was 15-months-old and the other was two-years-old.  They are now thriving 10 and 11-year olds, who are kind to others, fun to be with and full of enthusiasm for life. They are bright sparks with huge intelligence, and we love them to pieces. 

Like many adopted kids, they’ve had a huge amount to deal with in their short lives. Their special educational needs come from the traumatic experiences and disrupted attachments of their babyhood. Neuroscience now shows that these early life traumas affect the wiring of the brain and nervous system and previously "looked after" children usually need a lot of support and scaffolding.  

Getting a diagnosis

It was when Bobby first started primary school that it became pretty clear to us that things were different and after getting him assessed, we started along the road of parenting a child with ADHD and Sensory Processing Disorder, two very common diagnoses for adopted children. It explained a lot of his difficulties and made parenting a lot easier as we understood why he did certain things.

We fought for an EHC Plan and after several years the local authority finally named a school we felt could meet his needs: the prep school, Ashdown House. The headmaster was an absolute blessing.  He really “got” Bobby and within a year, our son had progressed so much that he was scoring amazing results. We were so happy with the pastoral care that we decided to put our daughter into the school as well. We will forever be grateful to that head and his teaching staff. 

In July 2018, he sadly had to resign his position as head due to ill-health and we were told an interim head was to be appointed. The new head started fully in Sept 2018.  

A shocking turn of events

In February 2019, the week before Bobby was excluded, he revealed information to his art therapist that she felt was a safeguarding issue, something we still have no clarification on. She reported this to the relevant member at the school, who did not report it to social services.

During the same week, Bobby was stabbed in the hand with a pencil by another student on the Saturday, and then cyber-bullied by this child and another on the Sunday. On the Monday we called the SEND officer and advised her of the weekend’s incidents.  We received a call late on Monday afternoon and were asked to attend the school on the next day. We assumed we were being called in to discuss the bullying and stabbing incidents. To our horror and amazement, we then found that our son was being excluded for a headlock incident (after being provoked and having mud kicked into his eye) …oh and 37 other aggressive incidents!

We were then advised that we would have the outcome of the headmaster’s investigation by the Saturday.   We duly arrived at the school for the outcome, and our world fell away when we heard the words “permanently excluded” 

Schooling at home

I cannot describe the pain, the anguish, the shame and the horror of the situation. This all turned to a burning desire to clear his name, as we knew our child and family had been wronged by the headmaster’s decision. 

I had to hand my notice in at work, as I worked with adults with learning difficulties and the local educational authority wanted to place Bobby in a secure unit until another school could be found.  I had to resign as we felt that homeschooling was the best option as sending him to another school, especially to a secure placement, would have been to extremely detrimental and disruptive to Bobby.

We took the decision that I would stay at home and home educate Bobby. I take my hat off to parents who home educate as it is so hard!

The road to clear his name

We first went through the internal appeal system of the school but the decision was the Cothill Trust upheld the headmaster's decision. This was very frustrating as they did not look at the legal aspect of their decision, only that they had followed their own policies and procedures.

After the appeal, we decided the only option we had was to pursue the matter in court, based on the school discriminating against Bobby for his disability. We won the First-Tier Tribunal (FTT) and we were delighted, and the judgement stated Bobby was to be reinstated and given a letter of apology. That was so important for our adopted child to know this wasn’t his “fault".

The Cothill Trust refused to adhere to the court order. They then appealed to the Upper Tier Tribunal.  We felt very let down; the FTT was unable to enforce its decision and this left us feeling utterly helpless in the eyes of the law. 

At this stage, things were very difficult for us as family. We were in the middle of court battle while also trying to secure a placement for Bobby to start school in the new academic year. We also had to continue going to Ashdown House as our daughter was still attending school there. We were very lucky, as we were well-supported by our post-adoption social worker.

Off to the Upper Tribunal, with a helping hand

The Cothill Trust were told a second time after their appeal, that they must adhere to the judgement and still they refused!

The Trust then appealed to the Upper Tier Tribunal.  At this point, we were thinking this is a joke, they have been proven to have broken the law, but nothing can be done.  The real issue was cost because each time you attend court the legal fees are substantial

At this stage, our legal team (Sinclairs) approached the Human Rights and Equality Commission who were appalled by the behaviour of the school. They agreed to fund the appeal to the Upper Tier Tribunal (UTT) as this affected all children within education in the UK

The UTT ruled in favour of Bobby on all four grounds.  The court ordered Bobby to be reinstated, a letter of apology and a redacted copy of court proceedings to be given to the Equality Human Rights & Equality Commission.

The aftermath

Bobby has now started at his new school and they understand his needs. I just wish there were more schools like this. There are so many different kids in this world with such varying degrees of needs who all deserve a suitable education tailored towards their individual needs.

It’s been very hard both emotionally and financially for our family, and you know what: “money you can make but a childhood you can’t take.”  It is not fair how the powers that be make decisions that are detrimental to our children’s mental health. I know this has scarred Bobby and no one has apologised to our ten-year-old son on an emotional level.

We need to make it better from a legal standpoint for us parents to have the ability to say this is what our child NEEDS and not on what the budget can afford.

Every child regardless of disability has the right to the same level of education.

Read the judgement in full here (PDF)

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Also read

• The Exclusions Review tries hard but falls short of a fix
• Is there meaningful accountability for illegal exclusions?
• Ten top tips to get a ‘good’ Education, Health and Care Plan for your child
• The Government must act on legal ruling against discrimination of disabled children
• Scrap league tables and boost SEND training to beat off-rolling
• The struggle in SEND hurts us all. It’s a sign of society gone wrong
• SEND children are being “traumatised” by not getting the help they need in schools

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Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder of Special Needs Jungle. (She/Her) Parent of two young adults with autism. New grandma. Tania, who is autistic, is a leading SEND advisor, working with the Special Education Consortium, Ofsted, and Whole School SEND. She is also an Advisory Board member of the Royal Holloway, University of London Centre of Gene and Cell Therapy and an Editorial Board member of Springer Nature Gene Therapy journal.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.

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