Legal Update: Disabilities and school exclusions

Last month the Upper Tribunal held that children with special needs who have been excluded from school for behaviour which is linked to their condition were being discriminated against. The court's ruling made clear for the first time that all schools must make sure they have made appropriate adjustments for all autistic children, or those with other disabilities, before they can resort to exclusion.

The Equality Act 2010 prohibits discrimination on the grounds of nine protected characteristics, one of which is disability. Schools have a duty to avoid discriminating against children with disabilities and have a duty to make "reasonable adjustments" for said children. For example, for autistic children this can include actions like providing a quiet and safe place where a pupil can go when they feel overwhelmed, or allowing autistic pupils to avoid crowded corridors when moving between lessons. However, an "exemption" under Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 states that if a person behaves in a way that indicates they have a "tendency to physical abuse of others" it is considered to be separate to any disability they may have and they are not protected. Therefore schools did not have to make reasonable adjustments for disabled children who have a "tendency to physical abuse" - even when that behaviour was directly related to their disability and/or down to a lack of appropriate support.