| SPOTLIGHT |
The Upper Tribunal has this week (3-4 July) heard a legal challenge over regulations that campaigners argue discriminate against pupils with autism.
The appeal is being brought the parents of a 13-year-old boy with special educational needs, known as ‘L’, who was excluded from school due to behaviour which is said to have been linked to his autism.
Law firm Irwin Mitchell, which together with Monckton Chambers’ Steve Broach is advising the claimant, said: “Under current rules, L 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 like L are not treated as ‘disabled’ in relation to their physically aggressive behaviour.”
The claimant’s legal team argue this exclusion discriminates against disabled children with conditions such as autism that are more likely to result in challenging behaviour.
They said a lack of protection under the Equality Act means that schools are not required to justify that a decision to exclude disabled children in these circumstances is proportionate or that they have made reasonable adjustments to support the pupil so that the challenging behaviour might be prevented or reduced.
The appeal is supported by the National Autistic Society, which has joined the proceedings as an interested party, and has been funded by the Equality and Human Rights Commission.
The Secretary of State for Education is seeking to defend the regulations.
The appeal was heard by Judge Rowley, who has reserved judgment.
Polly Sweeney, Partner at Irwin Mitchell, said ahead of the hearing: “This appeal is about the fundamental right of access to education for disabled children whose conditions, like autism, result in behaviours which can be physically aggressive.
“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.”
Sweeney added: “It is important to make clear that this finding would not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it would ensure that all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”
