SEND school exclusion practice faces legal challenge
Tristan Donovan
Tuesday, July 3, 2018
A legal bid to give more protection from exclusion to autistic schoolchildren whose condition is linked to physical aggression got under way today.
The challenge, which is being opposed by the Department for Education, is being brought by the parents of a 13-year-old boy who was excluded from school due to behaviour linked to his autism. The parents' legal team will argue that existing regulations on exclusion discriminate against disabled children with conditions such as autism, which can result in physically aggressive behaviours.
Under current rules, the child, and other children with similar conditions, lose the protection from discrimination under equality laws because their challenging behaviour is said to be "a tendency to physically abuse", even in cases where the behaviour itself is a direct result of the child's condition.
This means children are not treated as "disabled" in relation to their physically aggressive behaviour. The legal team will argue that the resultant lack of protection under the Equality Act means that schools are not required to justify that a decision to exclude disabled children is proportionate or that they have taken reasonable steps to support the pupil so that the challenging behaviour might be prevented or reduced.
Polly Sweeney, human rights partner at the family's law firm Irwin Mitchell, said the case concerns "the fundamental right of access to education for disabled children".
"The legal definition of ‘physically abusive' has been stretched to the point that it means disabled children even as young as six or seven who may have only displayed low-level physical aggression on a handful of occasions, or even just once if the physical aggression was significant, are denied protection from discrimination under the law," she said.
"The impact of disabled children being excluded from schools, not just on the child and its family, but on wider society, is serious and far reaching. We know that children who are excluded from school are more likely to end up in the criminal justice system, and less likely to enter into employment and training."
Sweeney said the parents do not want to stop schools from excluding children when necessary but want to ensure all disabled children have the "same safeguards, protections and rights under the law" as those without disabilities.
Children with SEND account for almost half of all permanent and fixed period exclusions from school, according to DfE figures for the 2016/17 school year.
The statistics also show that SEND pupils were almost seven times more likely to be permanently excluded and six times more likely to get a fixed-term exclusion than pupils with no SEND.
In March Education Secretary Damian Hinds launched a review of school exclusions, headed by former children's minister Edward Timpson.
Hinds ordered the review in response to rising exclusion rates and evidence of significant variation in the use of permanent exclusions among different groups of children.
The parents' legal challenge, which is being heard in the Upper Tribunal, is being supported with money from the Equality and Human Rights Commission.