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.
Autism and special educational needs
The case was brought by the parents of a child (known as "L") who has autism, anxiety and pathological demand avoidance. L was excluded from school after an incident in which he hit a teaching assistant. For children on the autism spectrum, receiving the right support can make a significant difference to their education. However, poor understanding of autism can result in them being punished for what is seen as naughty or disruptive behaviour, rather than an expression of how anxious or overwhelmed they are, or an indication that their needs are not being met. The National Autistic Society intervened in the case, raising concerns that poor behaviour should often be seen as a form of communication, or a sign of unmet need, but the law does not encourage schools to make every possible reasonable adjustment before resorting to exclusion. As a result "too many children are missing out on months and years of education".
The Department for Education's own figures show that children and young people on the autism spectrum are three times more likely to be excluded from school than pupils who have no special educational needs.
Compatibility with human rights law
The Human Rights Act 1998 protects a child's right to education (under Article 2, Protocol 1), while Article 14 requires that all of the rights and freedoms set out in the act must be protected and applied without discrimination. Discrimination occurs when an individual is treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified. It can also occur when someone is disadvantaged by being treated the same as another person when their circumstances are different (for example if they are disabled or pregnant).
The Secretary of State argued that the Equality Act 2010 should not provide protection for people where the effect of their condition involved "criminal or antisocial activity" which had an impact on others. Therefore decision makers, such as schools, did not have to show that the discriminatory effects of their decisions were justified and proportionate.
The judge criticised the application of regulation 4(1)(c), stating that "it is repugnant to define as ‘criminal or antisocial' the effects of the behaviour of children whose condition - through no fault of their own - manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations". She found that regulation 4(1)(c) came "nowhere near striking a fair balance between the rights of children on one hand and the interests of the community on the other" and "does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse". Therefore L met the definition of a disabled person under the Equality Act, and all children should be protected from discriminatory decisions, including those relating to school exclusion.
POINTS FOR PRACTICE
- The tribunal's decision does not prevent schools from excluding pupils, but all decisions to exclude must be necessary and proportionate, taking into account the need to protect other pupils and staff, and any attempts to make reasonable adjustments.
- All children with special educational needs should now be afforded the same protection and rights under the law regardless of whether their disability causes a "tendency for challenging behaviour".
- For more information on school exclusions, visit https://childlawadvice.org.uk/education/
- Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com