What happened
On 25 February 2016 a school excluded a pupil for one and a half days, per the published decision. L was a child with autism, anxiety and pathological demand avoidance, excluded for aggressive behaviour including incidents with other pupils and a teaching assistant.
The family’s disability discrimination claim failed in the First-tier Tribunal on a definition, not on the facts: regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 treats a person with a “tendency to physical abuse” as outside the definition of disability. L, excluded for behaviour classed that way, was not a disabled person, so nobody examined whether the exclusion was justified. The tribunal declined to read the regulation down to avoid breaching Article 14.
The outcome
The family appealed to the Upper Tribunal, funded by the Equality and Human Rights Commission, with the National Autistic Society intervening.
Judge Rowley allowed the appeal on 8 August 2018, reported as [2018] UKUT 269 (AAC) and later [2019] AACR 10. Regulation 4(1)(c) was incompatible with Article 14 read with Article 2 of Protocol 1, the right to education: children with L’s condition were treated differently from children in an analogous position, with no justification offered for it. “Aggressive behaviour is not a choice for autistic children,” the judge wrote.
The First-tier Tribunal’s decision was set aside and re-made by a confidential consent order, whose terms are not public.
What went wrong
The failure was not in a classroom but in the gateway to the claim. If the behaviour that prompted an exclusion counts as proof the child is not disabled, the school’s conduct is never examined, and the family cannot argue the exclusion was disproportionate.
The National Autistic Society told the BBC on 14 August 2018 that the loophole gave schools too little incentive to make the reasonable adjustments that would have prevented the exclusion.
What it teaches
Where behaviour is a manifestation of a condition, it cannot be used to take the protection away. The judgment accepts that an autism meltdown is not a temper tantrum: it is distressed behaviour. A school that reads an incident as evidence the pupil is “just badly behaved” makes the regulation’s error.
The case does not stop exclusion. Schools keep the section 15(1)(b) justification defence: an exclusion can be proportionate, and the more serious the behaviour the easier that is to justify.
For a school, proportionality turns on records: what was tried, when, and what the behaviour was understood to communicate.
Protecting other pupils and staff is a legitimate aim, and teaching assistants carry the risk; the answer is adjustments and support, not removing a child’s protection.
Questions for the room
- A pupil with autism hits a teaching assistant. Before anyone drafts an exclusion letter, what must be recorded about the function of that behaviour?
- You are the head. What would make this exclusion proportionate, and what would make it indefensible?
- The claim died before any question about the school was reached. What in your records would help a family test proportionality tomorrow?
Evidence and limits
Both sources were read live on 7 November 2026, including the determination in full.
L is referred to by an initial and is not named here; nor is the school, since naming it would identify the child. Judge Rowley is named as the judge in a published determination. The BBC’s account adds incident detail not repeated here.
The consent order is confidential, so the fate of the exclusion itself is not public. The finding is that the regulation was incompatible with the Convention, not that this exclusion was unlawful.
Our physical intervention training covers the planning and recording that shows an exclusion was a last resort.
Sources
- HM Courts & Tribunals Service / Upper Tribunal (AAC), 21 August 2018 · https://www.gov.uk/administrative-appeals-tribunal-decisions/2018-ukut-269-aac-c-c-v-the-governing-body-of-a-school-the-secretary-of-state-for-education-first-interested-party-and-the-national-autistic-society-second-interested-party-sen
- BBC News, 14 August 2018 · https://www.bbc.com/news/education-45182213
Reviewed 7 November 2026.