Guest Blog by Polly Sweeney
Thousands of children with disabilities will now be properly protected from discrimination in schools after a landmark ruling has found the government’s equality laws are unlawful.
The Upper Tribunal has held that regulations under the Equality Act 2010 excluding children who have a ‘tendency to physical abuse’ from the protection of the Act give rise to unlawful discrimination under Article 14 ECHR insofar as they apply to children with impairments which give rise to an enhanced risk of physical aggression.
Judge Rowley held that in accordance with section 3 of the Human Rights Act 1998, regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 ‘does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse’.
The appeal was brought by the parents of a 13-year-old boy with special educational needs, known as ‘L’, who was excluded from school due to behaviour which was linked to his autism.
Under the government’s equality laws, which have now been found by the Tribunal to be unlawful, L and other children with similar conditions, did not have the protection from discrimination because their challenging behaviour was said to be ‘a tendency to physically abuse’– even in cases where the behaviour itself was a direct result of the child’s condition. This meant children like L were not treated as ‘disabled’ in relation to their physically aggressive behaviour and they were left with no practical or effective way of challenging decisions to exclude them from school.
The legal definition of ‘physically abusive’ had 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. The impact of disabled children being excluded from schools, not just on the child and its family, but on the wider society, is serious and far reaching. We know that children who are excluded from school are more likely to end up in the criminal justice system, and less likely to enter into employment and training.
We didn’t believe this was Parliament or even the Government’s intention when the current rule was introduced and so we asked the Tribunal to find that the way the rule has been interpreted so far breaches our client’s human rights, arguing this exemption discriminated against disabled children with conditions such as autism that were more likely to result in challenging behaviour.
Statistics show that children with special educational needs account for almost half of all exclusions in schools. However, the lack of protection under the Equality Act meant that until this court ruling, schools were not required to justify that a decision to exclude disabled children in these circumstances was proportionate.
Judge Rowley, who was tasked with examining whether this rule was in breach of L and other children’s human rights found that this rule came “nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other”.
Recognising that “aggressive behaviour is not a choice for children with autism” she held: “In my judgment the Secretary of State has failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them. In that context, to my mind it is repugnant to define as ‘criminal or anti-social’ the effect 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.”
This finding does not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it will 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.
Polly Sweeney is a Partner in the Public Law and Human Rights Department at Irwin Mitchell and head up the national Education Law team. She specialises in education law, community care and healthcare (including medical treatment) and Court of Protection. She has a particular interest in cases involving the rights of children and young people with disabilities.