Will a pupil's behavioural problems amount to a disability under Equality Act?

Not necessarily, said the Scottish Court of Session (Inner House).

Case Details
M was a boarder at Gordonstoun School. She was diagnosed with ADHD. She was caught having sexual intercourse with another student.  This was not an isolated incident and was found to have been pre-arranged. M's mother appealed against expulsion claiming that M was disabled for the purposes of the Equality Act 2010 because of her ADHD. A discrimination claim was brought to the Additional Support Needs Tribunal for Scotland, equivalent to the SEND Tribunal in England and Wales.

Both the Tribunal and the Court of Session agreed that ADHD did not mean M was disabled for Equality Act purposes because the condition did not have a substantial and long term adverse effect on her ability to carry out normal day to day activities. Evidence suggested that the condition was likely to improve with time and that M went about day to day activities in a "normal fashion". While it was acknowledged that ADHD affected M's social skills, these were found to be in the "normal range".

There was also found to be no causal link between the sexual act and the ADHD meaning that the claim of discrimination because of something arising from disability would not have succeeded if M had been found to be disabled. The Court of Session commented that the claim for indirect discrimination was also unlikely to have succeeded because there was no evidence that all pupils with ADHD would have been disadvantaged by the rule against sexual relationships and expulsion was not an automatic sanction under the code of conduct.

Powers of the Tribunal 
The SEND Tribunal cannot make an award of financial compensation; remedies which can be sought include:

• a written apology;
• training and guidance for school staff;
• changes to school policies;
• extra tuition, to make up for lost learning;
• changing the location of lessons or activities (but not changing physical premises);
• admission to an independent school if the school has previously refused;
• trips or other opportunities to make up for activities that have been missed;
• in cases of permanent exclusion, an order for reinstatement at the school; and
• withdrawal of an exclusion from the school records.

Comment
This is a case which highlights the need to look at the particular circumstances of the claimant and the effect which their condition has upon their ability to carry out normal day to day activities. While schools may take a cautious approach, they should not always assume that a diagnosed condition will be a disability for Equality Act purposes.

Whilst the Tribunal does not have power to make a financial award, it can order reinstatement.  Further, a Tribunal finding that unlawful discrimination has occurred will strengthen any separate claim for damages for breach of the school's duty of care. In the case of a fee paying school there may be an additional claim for re-imbursement of fees. However, as with any tribunal, or court claim, consideration should be given to the possible reputational damage, including the reputation of any young person involved.

June 2016