| SPOTLIGHT |
Mark Blois reports on an Upper Tribunal ruling that a ‘tendency to physical abuse’ should no longer be considered an automatic defence to disability discrimination claims arising out of the exclusion of school pupils.
Since the Equality Act 2010 (Disability) Regulations 2010 (S.I. 2010/2028) and the leading case of X v The Governing Body of a School (SEN) [2015] UKUT 0007 (AAC) schools have been able to rely on Regulation 4(1)(c) Equality Act 2010 as a defence to any alleged discrimination towards pupils arising out of a decision to exclude, if it could be shown that the reason for this was a result of the pupil’s ‘tendency to physical abuse’.
The effect of those measures meant schools were not required to show a reasonable adjustment before excluding a disabled child on grounds of their behaviour if this had resulted in physical abuse towards other staff or students – even if such behaviour manifested as a result of their disability and was outside their ability to control.
However, the judgment in C&C v The Governing Body of a School [2018] UKUT 269 (AAC) has ruled the Regulation 4(1)(c) defence incompatible with human rights law and the need to ensure that disabled children are not discriminated against in their access to education.
The case
The appeal was brought by parents of a child who was diagnosed with autism, anxiety and pathological demand avoidance. The first tier tribunal applied Regulation 4(1)(c) and held that a fixed term exclusion was a result of a ‘tendency to physical abuse’ and so the parents were prevented in law from claiming that the school had discriminated against the child on disability grounds.
The appeal did not challenge the first tribunal’s factual finding that the child did behave in a physically abusive manner, but on the legal basis that the interpretation of Regulation 4(1)(c) was incompatible with Article 14 (read with Article 2 of Protocol 1) (A2P1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Evidence at the appeal suggested that some children with disabilities such as autism or attention deficit disorder (ADHD) may lash out at others around them in school and these ‘meltdowns’ may be caused by children being overwhelmed or frustrated; this behaviour may be intrinsic to their underlying disability and out of their control.
Judge Rowley considered first whether there is a difference in treatment under the law between children whose disability manifests in physically abusive behaviour, and other children whose disability did not. Having identified that children who required protection under the law were being treated differently, the judge questioned whether the difference in treatment could be justified. Ultimately the judge found that it could not, and so dis-applied the Regulation 4(1)(c) provision in relation to education exclusions.
What effect will this have on schools?
A significant proportion of children with disabilities who are excluded from schools follow reports of physically abusive behaviour. In practice, the pastoral ethos of many schools is that such exclusions are always and only ever considered only as a last resort, and much greater tolerance given towards children whom are less able to control their behaviour.
However, it will now be necessary to demonstrate in relation to a child whose disability is recognised to manifest itself in a physically abusive way that reasonable adjustments and alternatives have been actively considered, explored, and ruled out, before deciding to exclude a child whose disability may have caused their behaviour.
We think the need to properly justify any such exclusions does ultimately give better protection for children, and is already the policy of many of the schools and academies we advise nationally. This development in the law is likely to be welcomed by parents of autistic children, and recognised as an appropriate refinement by education providers.
Mark Blois is a partner and Head of Education at Browne Jacobson. He can be reached on 0115 976 6087 or by email.
