In an important decision, the Upper Tribunal has held that children with special needs who have been excluded from schools for aggressive behaviour which is linked to their condition are being discriminated against.

An appeal was brought by the parents of a child (known only as ‘L’) who has autism, anxiety and Pathological Demand Avoidance.  L was excluded from school after an incident in which he hit a teaching assistant.  This decision was challenged on the basis that children with disabilities that mean they have “a tendency to physically abuse” are not protected by the Equality Act 2010.

Why did this raise a human rights issue?

The Equality Act 2010 prohibits discrimination on the ground of nine protected characteristics.  Under section 6 of the Act, disability is one of those protected characteristics.  However, in L’s case, the first-tier tribunal decided that L did not meet the definition of a disabled person for the purposes of the Equality Act because, under regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010, people with disabilities that mean they have “a tendency to physical abuse” were not protected by the Equality Act 2010.  

In L’s appeal, questions were raised over how compatible this regulation was with human rights law. In particular, the Human Rights Act protects people’s right to education (Article 2, Protocol 1) and prohibits people from being discriminated against in relation to their human rights (Article 14), including this right to education. Furthermore, the human rights protection against discrimination is not limited to the same 9 characteristics as the Equality Act.

The effect of discrimination

Under the HRA not all differences in treatment amounts to unlawful discrimination.  For example, sometimes people may need different approaches to make sure they are treated equally, such as providing access to sign language interpreters for members of the deaf community. However, negative differences of treatment based on grounds such as race, gender or disability would require strong reasons in order to be considered justified.  The justification from the Secretary of State for excluding children like L from the protection of the Equality Act 2010 was that the Act should not provide protection for people where the effect of their condition involved criminal or anti-social activity which had an impact on others.  In reality this meant that decision makers, such as schools, did not have to show that the discriminatory effects of their decisions were justified and proportionate.

In deciding whether there was a fair balance between the rights of an individual like L and the interests of the community, judge Rowley held that the effect of regulation 4(1)(c) was that even if behaviour like the one complained of in this case was caused by a school’s failure to make reasonable adjustments, a school’s decision to exclude a child L could not be challenged as discriminatory under the Equality Act.  Considering regulation 4(1)(c) from a human rights perspective, she said that “it would be hard to overstate the impact of Regulation 4(1)(c) on this particularly vulnerable cohort of children”.  She was very critical of its application to children like L, stating that “it is repugnant to define as ‘criminal or anti-social’ the effects of the behaviour of children whose condition – through no fault of their own – manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations”, and she considered that regulation 4(1)(c) came “nowhere near striking a fair balance between the rights of children on one hand and the interests of the community on the other”.

Using section 3(1) of the HRA – which requires judges to scrutinise legislation from a human rights perspective, wherever possible, – judge Rowley decided that “section 4(1)(c) does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.”  This human rights compliant interpretation of the law therefore means that L met the definition of a disabled person under the Equality Act, and should be protected from discriminatory decisions, including those relating to school exclusion.

Impact of this judgment

Prior to this judgment, schools were allowed to exclude children like L without needing to meet their needs or make reasonable adjustments.  The gap in protection for children like L which was caused by regulation 4(1)(c) had worrying consequences.  Statistics released by the showed that in the academic year 2016/17, pupils with special educational needs accounted for around half of all permanent exclusions.

Considering this issue through the lens of the Human Rights Act brought to light the profound impact that regulation 4(1)(c) had on children with disabilities like L’s, for whom such behaviour was no fault of their own.  This judgment is positive step for many children with similar conditions; it clearly places the onus on schools to endeavour to make reasonable adjustments.   The decision does not prevent schools from excluding pupils, but this must be provided that it is necessary and proportionate to do so, taking into account the need to protect other pupils and staff, and any attempts to make reasonable adjustments.  However, importantly, children with similar special educational needs will now be afforded the same protection and rights under the law regardless of whether their disability causes a tendency for challenging behaviour. This is the point of human rights law, and why they matter for all of us. When equality law had failed, the Human Rights Act provided a safety-net to remedy a gap in protection, ensuring that those with public power did not lose sight of the person, in this case a child seeking an education.

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