Authored By: Alicia-Khalia Nembhard
Arden University
Introduction
For pupils diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), behaviours leading to school exclusion may be directly linked to the effects of their disability. Impulsivity, emotional dysregulation, and deficits in executive functioning frequently manifest as behaviours schools perceive as disruptive or challenging. Existing research demonstrates a significant association between ADHD and school exclusion, thereby raising a critical legal question: at what point does legitimate school discipline constitute disability discrimination?[1]
The Equality Act 2010 prohibits schools from discriminating against disabled pupils, including through exclusion, and protects against unfavourable treatment arising as a consequence of disability.[2] However, these statutory protections do not preclude schools from imposing disciplinary sanctions on disabled pupils. The central challenge is to determine whether the behaviour in question is sufficiently connected to the disability and whether the school’s response is both justified and proportionate.
This article argues that the Equality Act provides potentially strong protection for pupils with ADHD, but its effectiveness depends on schools recognising disability-related behaviour before exclusion occurs. Through analysis of the statutory framework and relevant case law, particularly C & C v The Governing Body of a School [2018] UKUT 269 (AAC), it examines the distinction between legitimate discipline and discriminatory exclusion and considers whether greater safeguards are required.
ADHD as a Disability: The Legal Framework
Protection under the Equality Act 2010 is predicated on the statutory definition of disability, which requires that an individual has a physical or mental impairment with a substantial and long-term adverse effect on their ability to perform normal day-to-day activities.[3] Consequently, an ADHD diagnosis alone does not automatically constitute a disability under the Act; the statutory criteria must be met in the context of each individual pupil.
Once this threshold is satisfied, several statutory provisions become particularly relevant in the context of school discipline. Section 15 prohibits unfavourable treatment arising from consequences of a disability unless such treatment can be justified as a proportionate means of achieving a legitimate aim.[4] This provision is especially pertinent to exclusion, as unfavourable treatment may result from behaviour linked to the disability rather than the disability itself. The Act expressly prohibits a school’s responsible body from discriminating against a pupil through exclusion.[5]
The Act also imposes a duty to make reasonable adjustments and reasonable steps to address substantial disadvantage and provides that failure to comply with the duty constitutes discrimination.[6] The relationship between reasonable adjustments and exclusion is, however, complex. In C & C v The Governing Body of a School [2018] UKUT 269 (AAC) [13]-[16], the Upper Tribunal clarified that while the duty to make reasonable adjustments does not directly apply to exclusion decisions, a failure to implement such adjustments may still be relevant in assessing whether unfavourable treatment was proportionate under section 15.[7]
When disability related behaviour leads to exclusion
The leading case on disability-related behaviour and school exclusion is C & C v The Governing Body of a School. This case involved an autistic pupil who received a fixed-term exclusion for aggressive behaviour. The First-tier Tribunal found that the Equality Act 2010 did not apply because the behaviour was considered a “tendency to physical abuse,” which is excluded under regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010.[8][9]
On appeal, the Upper Tribunal acknowledged the wider impact of this interpretation. Judge Rowley noted that some children with disabilities, such as autism and ADHD, may exhibit physically aggressive behaviour as a result of their condition rather than intentional misconduct.[10] However, the Tribunal confirmed that if a pupil’s behaviour is classified as a “tendency to physical abuse,” it may be excluded from the statutory definition of disability under regulation 4(1)(c).[11] As a result, the pupil may lose the protection of section 15 for that behaviour, even though the underlying impairment remains a disability.
While the Equality Act aims to prevent disability discrimination and requires schools to justify unfavourable treatment through a proportionality assessment, regulation 4(1)(c) excludes certain manifestations of disability from statutory protection for public policy reasons. As a result, behaviour directly linked to a recognised neurodevelopmental condition may be excluded from the Act’s protection before any assessment of justification or reasonable adjustments occurs.
This distinction is especially important for pupils with ADHD, as the condition often affects impulse control, emotional regulation, and executive functioning, which can contribute to behaviour seen as disruptive or aggressive.[12] While this does not excuse harmful behaviour, it raises a key legal question: should disability-related conduct be excluded from Equality Act protection before a tribunal considers whether reasonable adjustments could have prevented the behaviour or whether exclusion was proportionate? This question remains central to the ongoing debate about disability discrimination and school exclusion.
The protection gap
Despite the comprehensive framework established by the Equality Act 2010, recent litigation suggests that major challenges continue in protecting disabled pupils from discriminatory exclusion. In The Governing body of a school v M (on behalf of C) (SEN) [2026] UKUT 161 (AAC) [1]-[2],[13] the Upper Tribunal considered whether a disability discrimination claim concerning a permanently excluded autistic pupil could proceed despite being brought outside the statutory time limit. Although the appeal concerned a procedural issue rather than the merits of the exclusion itself, the underlying First-tier Tribunal decision had found that the school discriminated against the pupil contrary to sections 15 and 85(2)(e) of the Equality Act 2010.[14] The Upper Tribunal also noted that the First-tier Tribunal had criticised the school’s decision-making process as showing a “fundamental misunderstanding” of its responsibilities under the Equality Act 2010.[15]
The decision proves that the existence of statutory protection alone does not guarantee lawful decision-making in practice. Schools are required to balance the rights of disabled pupils with the safety, welfare and education of the wider school community. The Department for Education’s statutory guidance further emphasises that exclusion should be lawful, reasonable, fair and proportionate, and that headteachers must consider their obligations under the Equality Act 2010 when making decisions involving disabled pupils.[16] In many cases, exclusions will remain legal and necessary; however, in instances where behaviour arises from a recognised disability, such as ADHD, schools must ensure that the disciplinary decisions are informed by proper understanding and referral of the Equality Act, including the duty to consider reasonable adjustments and whether exclusion represents a proportionate means of achieving a legitimate aim.
Official Department for Education statistics demonstrate that suspensions and permanent exclusions are extraordinarily prevalent in the English education system, with the 2024-2025 data reporting exclusion by pupil characteristics, including special educational needs.[17] Empirical research further demonstrates that pupils with ADHD experience disproportionately high rates of school exclusion.[18] While exclusion may sometimes be justified, repeated reliance upon disciplinary sanctions without adequate consideration of disability-related needs threatens the purpose of equality legislation. The law therefore faces an ongoing challenge of ensuring that schools retain appropriate disciplinary powers while preventing disability-related behaviour from being treated as misconduct without sufficient legal scrutiny.
Creating transparency in the decision-making process could help to reduce this, however. Before excluding a disabled pupil, schools should ensure that there is clear, written documentation as to whether the behaviour arose in consequence of disability, what reasonable adjustments were considered or implemented, and why exclusion remained a proportionate response. By utilising this approach, it would strengthen compliance with the Equality Act 2010 while improving accountability in exclusion decisions.
Conclusion
The Equality Act 2010 establishes a full-bodied legal framework to protect disabled pupils from discriminatory exclusion. However, its effectiveness depends on how schools identify and address disability-related behaviour in practice. Where behaviours associated with ADHD are viewed solely as misconduct, without proper consideration of causation, reasonable adjustments, and proportionality, the protections intended by Parliament may be significantly weakened.
As demonstrated in C & C v The Governing Body of a School and The Governing Body of a School v M (on behalf of C), disability discrimination in the context of school exclusion is a developing area of law and remains significant. When analysed together, the cases highlight the necessity of lawful decision-making that acknowledges the relationship between disability, behaviour, and proportionality, rather than being exclusively reliant upon disciplinary sanctions.
It is therefore submitted that greater consistency may be achieved by requiring schools to explicitly document how disability, reasonable adjustments, and proportionality have been considered prior to excluding a disabled pupil. By using this approach, compliance with the Equality Act 2010 would strengthen, there would be a marked increase in transparency regarding disciplinary decision-making, and it would provide stronger assurance that pupils with ADHD receive the legal protection intended by Parliament.
Reference(S):
Legislation:
Equality Act 2010
Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128
Cases:
C & C v The Governing Body of a School [2018] UKUT 269 (AAC)
The Governing Body of School v M (on behalf of C) (SEN) [2026] UKUT 1616 (AAC)
Government Guidance
Department for Education, “School Suspensions and Permanent Exclusions” (GOV.UK, 26 July, 2026) <https://www.gov.uk/government/publications/school-suspensions-and-permanent-exclusions> accessed 1 August, 2026
Department for Education, “Release Home – Suspensions and Permanent Exclusions in England” (GOV.UK, 9 July, 2026) <https://explore-education-statistics.service.gov.uk/find-statistics/suspensions-and-permanent-exclusions-in-england/2024-25> accessed 1 August 2026
Journal articles
John A and others, “Association of School Absence and Exclusion with Recorded Neurodevelopmental Disorders, Mental Disorders, or Self-Harm: A Nationwide, Retrospective, Electronic Cohort Study of Children and Young People in Wales, UK” (2022) 9 The Lancet Psychiatry 23
Parker C and others, “Are Children with Unrecognised Psychiatric Disorders Being Excluded from School? A Secondary Analysis of the British Child and Adolescent Mental Health Surveys 2004 and 2007” (2018) 49 Psychological Medicine 2561
[1] Claire Parker and others, “Are Children with Unrecognised Psychiatric Disorders Being Excluded from School? A Secondary Analysis of the British Child and Adolescent Mental Health Surveys 2004 and 2007” (2018) 49 Psychological Medicine 2561.
[2] Equality Act 2010, s 15, 85(2)(e).
[3] Equality Act 2010, s 6.
[4] Equality Act 1010, s 15.
[5] Equality Act 2010, 85(2)(e).
[6] Equality Act 2010, s 20-21.
[7] C & C v The Governing Body of a School [2018] UKUT 269 (AAC) [13]-[16].
[8] C & C v The Governing Body of a School [2018] UKUT 269 (AAC) [5]-[6].
[9] Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128.
[10] C & C v The Governing Body of a School [2018] UKUT 269 (AAC) [3].
[11] C & C v The Governing Body of a School [2018] UKUT 269 (AAC) [21]-[28].
[12] Claire Parker and others, “Are Children with Unrecognised Psychiatric Disorders Being Excluded from School? A Secondary Analysis of the British Child and Adolescent Mental Health Surveys 2004 and 2007” (2018) 49 Psychological Medicine 2561.
[13] The Governing body of a school v M (on behalf of C) (SEN) [2026] UKUT 161 (AAC) [1]-[2].
[14] The Governing body of a school v M (on behalf of C) (SEN) [2026] UKUT 161 (AAC) [15].
[15] The Governing body of a school v M (on behalf of C) (SEN) [2026] UKUT 161 (AAC) [7].
[16] Department for Education, “School Suspensions and Permanent Exclusions” (GOV.UK, 26 July, 2026) <https://www.gov.uk/government/publications/school-suspensions-and-permanent-exclusions> accessed 1 August, 2026.
[17] Department for Education, “Release Home – Suspensions and Permanent Exclusions in England” (GOV.UK, 9 July, 2026) <https://explore-education-statistics.service.gov.uk/find-statistics/suspensions-and-permanent-exclusions-in-england/2024-25> accessed 1 August 2026.
[18] Ann John and others, “Association of School Absence and Exclusion with Recorded Neurodevelopmental Disorders, Mental Disorders, or Self-Harm: A Nationwide, Retrospective, Electronic Cohort Study of Children and Young People in Wales, UK” (2022) 9 The Lancet Psychiatry 23.
