Legal challenge Over Regulations Which Campaigners Argue Discriminate Against Pupils With Autism

The Upper Tribunal will hear this week an appeal 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 current rules, L and other children with similar conditions, lose the protection from discrimination under equality laws because their challenging behaviour is said to be ‘a tendency to physically abuse’– even in cases where the behaviour itself is a direct result of the child’s condition. This means children like L are not treated as ‘disabled’ in relation to their physically aggressive behaviour.

Irwin Mitchell’s Public Law and Human Rights team which is acting for the family alongside specialist barrister, Steve Broach from Monckton Chambers, will argue this exclusion discriminates against disabled children with conditions such as autism that are 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 means that schools are not required to justify that a decision to exclude disabled children in these circumstances is proportionate or that they have made reasonable adjustments to support the pupil so that the challenging behaviour might be prevented or reduced. 

Expert Opinion

This appeal is about the fundamental right of access to education for disabled children whose conditions, like autism, result in behaviours which can be physically aggressive.

“The legal definition of ‘physically abusive’ has 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 do not believe this was Parliament or even the Government’s intention when the current rule was introduced and we will be asking the Tribunal to find that the way the rule has been interpreted so far breaches our client’s human rights.

“It is important to make clear that this finding would not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it would 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 - Partner

The appeal is supported by the National Autistic Society, which has been joined as an interested party because of the particularly negative impact of the way in which the rule has been interpreted on children with autism.  It comes after a parliamentary committee recommended in 2016 that the rule be amended so as not to apply to children with autism and other recognised impairments.

L’s parents added: ‘We believe passionately that our son and other children in his position should have equal rights to be able to go to school and receive the support they need to achieve the best possible outcomes.

“L’s autism means that he will grow up in a world where he will face challenges and adversity throughout his life. School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over. These rules currently prevent that and we hope the Tribunal will do what is needed to correct this inequality.”

The appeal is being brought with assistance of funding from the Equality and Human Rights Commission. It will be heard in the Upper Tribunal in London on 3 and 4 July, 2018. The Secretary of State for Education has been joined as an interested party and is opposing the appeal.

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