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Can a Pupil with Autism be Excluded for Aggression?

September 2018

Disabled children with a tendency to abuse others physically should not fall outside the protection of discrimination legislation

The Upper Tribunal of the Health, Education and Social Care Chamber (Special Educational Needs and Disability) has ruled that a pupil with autism who has a tendency to physically abuse others arising from that condition should be protected by the Equality Act 2010.

Case details

The case of C & C v Governing Body of a School and others concerns L, an 11 year old child who suffers from autism, anxiety and Pathological Demand Avoidance. Over a ten month period a number of incidents of physical aggression by L had been recorded by the school, including pulling, pushing and grabbing others and pulling the hair of and punching a teaching assistant. L received a fixed term exclusion of 1.5 days for aggressive behaviour.

L's parents brought a disability discrimination claim against the school in the First Tier tribunal, citing unfavourable treatment including the fixed term exclusion. The tribunal decided that L was not protected from discrimination in relation to this exclusion because it sprang from L's tendency to physically abuse others.

The law

Under Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 (the Regulations), a tendency to physically or sexually abuse others is to be treated as not amounting to an impairment coming under the definition of disability with the Equality Act.

The effect of this Regulation is that children with certain conditions which give rise to a tendency to physically abuse others and who are, for example, excluded from school because of physical aggression, are not protected against disability discrimination which is related to that aggressive tendency.

The appeal

On appeal to the Upper Tribunal, Judge Rowley overturned this decision. She determined that the Regulations (only in their application to children under the age of 18 in the education context) contravene the European Convention on Human Rights. This was on the basis that the Regulations discriminate against children with particular conditions, such as autism and ADHD, in terms of their right to education.

Judge Rowley concluded that the Secretary of State had not carried out a proper balancing exercise of the impact of the Regulations on certain children with special educational needs against the impact on others such as other pupils and staff in a school. On carrying out that exercise herself, Judge Rowley concluded that the impact of the Regulations on children with special educational needs whose condition led to a tendency to physically abuse significantly outweighed the impact on others in the community. She was particularly influenced in this decision by the fact that excluding such a pupil does not remove the tendency to physically abuse, but simply moves it to another setting.

Judge Rowley determined that words should be read into the Regulations which meant they would not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse or should be disapplied in L's case.

Judge Rowley considered in her judgment the March 2016 report of the House of Lords Select Committee on the Equality Act 2010 and Disability which concluded that the Regulations undermine the need to support and encourage schools to make adjustments for those children whose conditions lead to challenging behaviour. Judge Rowley commented that schools will still be able to justify exclusion on the basis of aggressive behaviour in circumstances where the exclusion was a proportionate means of achieving a legitimate aim.

Comment

It has always been important for schools to give careful consideration to whether an exclusion of a disabled child is a proportionate means of achieving a legitimate aim. This involves weighing up the impact on the child, the impact of the behaviour on others and considering whether there is a less discriminatory way to achieve the school's aims, such as maintaining discipline and keeping children safe during their education. In the light of this ruling, schools should carry out this balancing exercise in the same way when dealing with a disabled child whose condition leads to a tendency to physically abuse and who is being excluded (or sanctioned in some other way) for aggressive behaviour. Equally, schools should be mindful of their duty to make reasonable adjustments for such children where they are disadvantaged by their disability, for example by school policies and practices.

This judgment does not mean that schools can never exclude or sanction for aggressive behaviour a child whose disability gives rise to a tendency to aggressive behaviour. However, the exclusion of such a child for such behaviour where insufficient reasonable adjustments have been put in place to support the child is unlikely to be found to be proportionate by a tribunal. Indeed, a tribunal may find that a child's condition means that they are not in control of their aggressive behaviour and/or that a lack of reasonable adjustments in school has increased the risk of the child reacting aggressively. If this is the case, simply adjusting the behaviour policy to allow the child more chances to comply before being sanctioned may not be sufficient to avoid discrimination.

Chris Billington, Head of the Education Team at Wrigleys adds that "It is important for schools to evidence strategies that have sought to ameliorate the underlying unacceptable behaviour rather than be seen to simply punish such behaviour."

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