Changing places consultation

Accessible toilets or “disabled toilets” do not necessarily meet the needs of all people with a disability.

People with profound and multiple learning disabilities, as well people with other physical disabilities such as spinal injuries, muscular dystrophy and multiple sclerosis may need the additional equipment and space afforded by a Changing Places toilet in order to be able to use the toilets safely and comfortably.  This post from the Quinns, Trains and Cerebral Palsy blog explains things much better than I can.  And this one…

It can, however, be difficult to find a Changing Places toilet.  A growing campaign, led by the Changing Places Consortium is calling for  for Changing Places toilets to be installed in all large public places.

The Scottish Government has just launched a consultation on building standards for changing places.  The proposal is

The proposal is to require Changing Places, through building standards, in certain types of larger new buildings.  Such regulations would go some way to increase the provision nationally, albeit over a period of time.

It is a welcome step, and the detail of the regulation will be important.  For example, the consultation at present only includes secondary schools, and only where community facilities are also provided by that school.  This is a missed opportunity, and consideration should be given to widening the requirement to include all secondary schools, special schools and primary schools (perhaps subject to a minimum size).

While this is not an educational piece of legislation, schools are already exempt from the second requirement of the reasonable adjustments duty under the Equality Act 2010, which might otherwise have required such changes in existing buildings, depending on the various factors which might be at play (including cost).  Most education authorities’ Accessibility Strategies are not so ambitious as to include major works on things like Changing Places toilets.  And, of course, many new build schools have opened in recent years, pre-dating these regulations.

The presumption of mainstreaming and inclusion for all pupils requires that all pupils can access safe and suitable toilet facilities at school.

The consultation runs until 13 May 2019.  Please read it, and respond – and encourage others to do so as well.

 

 

Advertisements

Motion on mainstreaming

On Wednesday 30th January 2019, the Scottish Parliament agreed the following motion (S5M-15607):

That the Parliament notes the comments made by the OECD that inclusion is one of the key strengths of the Scottish education system; believes that the presumption to mainstream pupils has laudable intentions and that it works well for the majority of young people in Scotland’s schools; recognises however the very considerable concern that has been expressed by many teachers, teaching assistants, children’s charities and parents’ groups that a growing number of young people with special educational needs are not being well served by being placed in inclusive mainstream education; believes that this is putting additional pressures on teachers and young people in classrooms across Scotland, making it more difficult to support the individual needs of each child; in light of the recent evidence presented to Parliament, calls on the Scottish Government to work with local government partners to review the presumption to mainstream policy to ensure there can be more effective uptake of the provision of places in special schools and specialist units and utilisation of specialist staff, and, agrees that this review should be founded on a continuing commitment to a presumption to mainstream and on the need to ensure that children and young people’s additional support needs are met, to enable them to reach their full potential, from within whichever learning provision best suits their learning needs, and notes the forthcoming publication of revised guidance, tools and advice for school staff, and national research, on the experiences of children and young people with additional support needs.

The motion was brought by Liz Smith MSP (Conservative) with the section from “and agrees that this review..” to the end, being added by an amendment brought by John Swinney MSP (SNP), the Cabinet Secretary for Education.

It is significant that the motion carried cross-party support, with very little disagreement except on minor points of emphasis.  While the motion itself speaks about a review of the presumption of mainstreaming, the Cabinet Secretary seemed to go further than that, referencing “a review of the implementation of additional support for learning, including where children learn”.

It is worth mentioning the solid work that the Education and Skills Committee have put into grappling with this question over a significant period. In addition, several voluntary organisations have worked effectively to keep the issue in the spotlight.

I have some slight concerns as to the length of time that a review might take, as it is not clear what form this is going to take, or over what timescale.

Indeed, as Mark McDonald MSP pointed out during the debate, the last call for a review into the presumption of mainstreaming was some three years ago.  That review has not yet concluded!  Draft revised guidance on the presumption of mainstreaming was out for consultation about a year ago.  (You can read my response to the consultation on the presumption of mainstreaming guidance here.)  The Scottish Government website still claims that updated guidance “will be published towards the end of 2018”.

It is to be hoped that the substantial work which has already been undertaken here means that the review process will not be a lengthy one.

As the motion is keen to point out, there is no intention here to depart from the principle of the presumption of mainstreaming, rather to consider how it is being implemented in practice.  In my view this is the correct approach.  It has always been accepted that mainstreaming would be more expensive than a system of special schools (cf. “Moving to Mainstream” report by Audit Scotland, 2003) – but it has been adopted as a principle because it is the right thing to do.  The policy must be properly resourced as a matter of urgency.  It is not a quick fix, but a long-term commitment which is required.  The resources must also be spent on the right things. For example, simply throwing Pupil Support Assistants at the problem will not help, and may make things worse.

The motion also mentions the “more effective uptake of the provision of places in special schools and specialist units”.  The Doran Review was commissioned by the Scottish Government and published in November 2012.  In the six years which have passed since then little progress has been made in terms of the recommendations it made certainly insofar as they related to Scotland’s grant-aided special schools.  A draft ten year strategy on the learning provision for children and young people with complex additional support needs was published in June 2017.  My response to that consultation can be found here.  The strategy has not yet been finalised, much less implemented (and it was supposed to cover the period 2017-2026).  Meanwhile, the Scottish Government are paying millions of pounds a year to the grant-aided special schools, some of which are woefully under capacity, catering to just a handful of children.  These national resources should be fully funded by Scottish Government and able to select their own pupils, just like the only mainstream grant-aided school is (Jordanhill School).  This would mean that pupils would be accepted to these schools on the basis of need, rather than by who manages to negotiate the local authority / Tribunal system the best – a process that inevitably benefits children of more affluent parents.  There should also be much more emphasis on outreach services to mainstream schools from these national centres of excellence, but this does not currently happen to any great extent.  I advanced these arguments in my consultation response, but I am not holding my breath.

We also need to be careful that the review is not hijacked by those who oppose the principle of mainstreaming altogether.  Some of the language used in the Scotsman coverage for example, is less than helpful – “extra burden on overstretched teachers”; “some ASN pupils could be disruptive”; “a daily struggle to control classes”.

Overall, the review offers an opportunity to press for a system which delivers the right support in the right place at the right time for pupils with additional support needs – we should take it, with enthusiasm and energy.

Too many children with autism are let down by schools and end up in prison

By Chrissie Rogers, Professor of Sociology, University of Bradford

 

For many young people, school can be a difficult place. And for some, it can be just about impossible. Negative experiences in school can have harmful long-term effects on pupils with autism spectrum conditions.

Official figures show that children, are increasingly being suspended or expelled from school because of “behavioural problems” – many of which include children on the autism spectrum. Some regions in the UK have experienced a 100% increase in these types of exclusions since 2011.

So despite policy rhetoric on “inclusive education” – where children ought to be educated in mainstream schools – recent figures show school exclusions are increasing: from 6,685 pupils to 7,720 between 2015-2016 and 2016-2017.

In my current research I interviewed mothers of adult children with autism and other social, emotional and mental health problems. They told me how their young sons had been a challenge in school. And how despite their requests for help, their sons received little support and ended up in the criminal justice system.

Estimates suggest that 30% of prisoners have a learning difficulty or disability and 60% have problems with communication – though this is arguably a conservative estimate, as many inmates choose to hide their disabling condition.

No help or support

Mothers in my research talked to me about how their sons were “different”. They were violent to other children and teachers as well as their own families.

All the mothers told me they felt something was “not quite right” with their child. And because the support was not forthcoming at school, this negative behaviour escalated and then as these boys got older, they ended up in prison.

One mum, Sorcha, told me her son “was made out to be the demon child of the school. He had his first exclusion in September 2004, so he was about 10 then”. Another mum, Elaine, spoke of her son Harry: “He was a difficult child for school, he’s disruptive [and] was getting into so much trouble.”

Many schools are failing to meet the needs of autistic children.
Shutterstock

Udele, explained how she had received a call from the headmistress, to fetch her son after he assaulted a teacher. “I went, you’d better call the police then. He was 10”.

Failed by the system

But a lack of support was not just isolated to the families. One senior teacher who works in a “special school” explained how hard it is to help. She said that the combination of puberty and autism can make things very difficult:

At the age of 14 there’s so much going on for them. One boy got bad grades and didn’t know what to do. He got involved with another pupil who had been excluded and was waving a knife – he got arrested.

The mothers also spoke to me about their experiences of the criminal justice system. Trudy explained how, when her son was on remand, she “felt squeezed from both sides”. She said:

My instincts were telling me that my son was getting worse and that we needed help and the professionals were telling me he was fine.

Another mother, Elaine, told me how she was “totally broken”:

I just feel like I’m standing on the edge of the cliff and I don’t know if I’m going to fall. It’s scary.

The mothers in my research all spoke of the overwhelming challenges of dealing with their child’s disability while moving through the bureaucracy and barriers if the school and criminal justice systems.

They spoke of a lack of support, lack of access to professional help and an overwhelming lack of understanding about their son’s disability, and the impact this had on their lives.

The problem with education

Under the current UK education system – where everything is based on grades and targets – there is little room for children who disrupt the smooth running of the school. These children are all-too often excluded and made to feel that they are worthless – as one teacher explained:

One kid wanted to go back into mainstream [school], but by the time he was 15, he realised this wasn’t going to happen – he ended up in prison.

For as long as education focuses solely on academic achievement and continues to demand results rather than learning, children and their families will continue to be failed by the system. And, as my research shows, once a criminal pathway is trodden, it is incredibly difficult to find a way out.




Read more:
Britain’s criminal justice system doesn’t know what to do about autism


This means those who need support the most often end up incarcerated. Both Elaine and Udele’s sons (still now only in their 20s), were in “special schools” and continue to be in and out of the criminal justice system. I interviewed Elaine three times and her son Harry, once. Between her interviews, Harry returned to prison.

Rethinking learning

If more support and intervention in the education system was to occur before the police got involved, then these young people would be less likely to end up incarcerated and at the bottom of a human hierarchy.

But for this to happen, there needs to be a rethink of what education is actually about. Because it is clear that the restrictive and damaging nature of the current system just doesn’t work for some pupils.

If instead, schools could help children to learn creatively and open up their minds to new possibilities outside of tests and league tables, then it is likely that more children would stand a better chance of staying out of the criminal justice system and reaching their full potential.The Conversation

Chrissie Rogers, Professor of Sociology, University of Bradford

This article is republished from The Conversation under a Creative Commons license. Read the original article.

In Safe Hands?

Section 7 of the Commissioner for Children and Young People (Scotland) Act 2003, as amended, allows the Commissioner to conduct investigations into:

whether, by what means and to what extent a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (such an investigation being called a “general investigation”)

The first such investigation undertaken was on the issue of restraint and seclusion in Scotland’s schools (“No Safe Place”). The investigation focused on two main issues:

  • The existence and adequacy of policies and guidance.
  • The extent to which incidents are recorded and reported at local authority level.

The investigation was undertaken from an international law perspective – primarily the UN Convention on the Rights of the Child.  But what does Scots law have to say on these thorny issues?

Crime and Punishment

We start with a history lesson.  Following the Scottish case of Campbell and Cosans v. The United Kingdom, the European Court of Human Rights determined that the use of corporal punishment in public schools was a breach of the parents’ rights to ensure that their children’s education was in accordance with their own religious and philosophical convictions.  That’s right, the case to prevent children from being physically chastised at school was decided on a parents’ rights basis, not a children’s rights one!  Obviously.

The UK and Scottish Governments have subsequently taken various steps to eliminate the use of corporal punishment from schools.  Section 16 of the Standards in Scotland’s Schools etc. Act 2000 imposes a ban on the use of corporal punishment, by removing any such defence in relation to the crime of assault.

So far, so good.  The legislation then goes on to say that anything done for reasons which include averting:

  1. an immediate danger of personal injury to; or
  2. an immediate danger to the property of any person (including the pupil themselves).

… does not count as corporal punishment.

And, that’s it.  That is basically all the law has to say about physical intervention in schools, which is to say almost nothing.  Note that the law does not say that it is okay to do these things, just that they are not corporal punishment (in case anyone was confused).  So what?

Well, corporal punishment is no longer a legal defence to charges of assault against a child (at least insofar as teachers are concerned – the defence of “reasonable chastisement” still exists in some circumstances for parents).  But actions taken to prevent injury to people or damage to property are not corporal punishment.  Which is relevant because they can amount to a defence to a charge of assault.  The law here is essentially a reminder that there is a defence of self-defence (or defence of other people – or property) in some circumstances.  This is subject to all of the usual criminal law rules about taking an opportunity to retreat where available, and ensuring that the level of force used was proportionate.

NB. Massive caveat – I have never done so much as a single day’s criminal law in my life, so my pronouncements on this should be treated with even more caution than usual!

And of course criminal law approaches to this issue mean that a criminal standard of proof applies to any prosecution (i.e. beyond reasonable doubt) – which may be problematic if relying on the evidence of younger children or children with additional support needs.

The use of restraint or seclusion in schools, perhaps as a result, is not often considered by the courts or other legal fora.

Administrative and Policy

One example relatively recently determined by the Scottish Public Services Ombudsman was Case 201607679 (The Moray Council) which is a bit of mixed bag in terms of outcome.  The SPSO determined that the act of restraint itself “was appropriate given the Council’s policy”.  However, the policy had a clear emphasis on avoiding or de-escalating a potential incident – and that staff did not act reasonably in line with their policy to stop the incident taking place.  There is a mixed message here.  The Council could have prevented the need for restraint, but as they did not do so, it was appropriate for them to use restraint against the complainer’s daughter?!

The Ombudsman also found that there had been a failure to document whether the child had sustained any injury following the incident, even though this was required by their own policy.  The Council were asked to provide evidence of the further training for staff which had taken place, and to apologise to the child and her mother.

There have also been a few (unreported) cases on this subject by the Additional Support Needs Tribunals in cases brought in terms of the Equality Act 2010.  The use of restraint or seclusion for a disabled child may amount to discrimination arising from disability (Section 15) where the education authority are unable to show that the treatment was a “proportionate means of achieving a legitimate goal”.

Again, in this context the use (or failure to use) of the correct paperwork has been of significance.  One Tribunal concluded:

There was no proper record of the use of these seclusions kept at any time by the school. Whilst the [education authority] has since devised a new policy which requires that seclusion is a risk-assessed, personalised, reported, recorded and reviewed strategy this policy was not in place when the child was secluded.  The Tribunal were unable to conclude upon what basis the seclusion was used as there are no records of its use, purpose or outcome in respect of it being used for the Child.  In the absence of these safeguards the [education authority] were unable to demonstrate to the Tribunal that the use of seclusion could be justified as proportionate to a legitimate aim in these circumstances.

That is all quite legalese, but what it is basically saying is that without the proper planning, policy and records, it will be difficult to persuade a Tribunal that the use of seclusion on disabled children has been lawful.

Overall, there are some small encouraging signs, but this is set against the backdrop of a system (educational, legal and political) which gives every appearance of valuing teachers above children.

Employees and Employments

For example, the case of Porter v. Oakbank School in 2004 which remains, to my knowledge, the only time that the issue of physical restraint in schools has been considered by the appeal courts in Scotland in terms.  This case involved a teacher at the school who fractured a pupil’s arm while trying to escort him to the “quiet room”, as he had been out of class without permission.

While accepting that an appeal decision is not going to be the best medium for getting a full sense of the facts of the case, it does seem that there was, perhaps, an incomplete understanding of the nuances involved, even allowing for the fact that this was over 15 years ago.

The judgement summarises the context as follows: “The .. school [is] for children with special educational needs. .. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in ‘crisis and aggression limitation and management’ (CALM), a technique for controlling violent or disorderly persons.”  This is a description with which CALM Training may take some issue!

The Court found that there was not sufficient evidence of unnecessary force in this case, and cast doubt on “whether textbook solutions were practicable in the emergency that pupil A had himself created.”  The Court upheld the earlier decision that the teacher had been unfairly dismissed by the school.

Reporting and Responding

It will therefore be interesting to see what response there is to the Commissioner’s report.

The Commissioner found that while children’s rights are referenced in many policies, they are not given meaningful expression in terms of how they should impact on practice.

There was also criticism of the Scottish Government for failing to produce a national policy to ensure consistent and lawful practice, something which groups like Positive and Active Behaviour Support Scotland (PABSS) have been calling for for years.

Several recommendations were made, including:

  1. Local authorities should, as a matter of urgency, ensure that no restraint or seclusion takes place in the absence of clear consistent policies and procedures at local authority level to govern its use.
  2. The Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.

All those who are subject to recommendations are required to respond to the Commissioner in writing by 31 January 2019.

Exclusion and disadvantage – a warning from London

An interesting and disturbing article I cam across recently in the Guardian: “Inner London students placed in excluded pupils’ schools almost double national rate” – which reveals statistics on exclusion from within London.

London’s schools are some of the highest performing in England and Wales, following the innovative London Challenge programme – which has in turn inspired the Scottish Government’s attainment challenge.

Research in London’s schools shows that the rates of exclusion rise significantly in some London boroughs – particularly in Inner City boroughs associated with high levels of poverty and other social disadvantage.  In one area 1 in every 54 pupils were in pupil referral units for excluded children.

Kiran Gill, from the IPPR who carried out the research argues that the most vulnerable children with the most complex needs are disproportionately affected by exclusion, and London has no shortage of them.

Exclusion is correlated with multiple and overlapping layers of disadvantage.

Kiran Gill, IPPR

One of the factors identified in the article as driving the exclusions was the pressure schools feel to perform in league tables.  Is there a danger that the Scottish Government’s national standardised testing (which was this week disowned by international educational experts)could lead to similar pressures – and a similar increase in exclusions?

In reading this article, I was reminded of the presentation from Linda O’Neill and Lizzie Morton from CELCIS, speaking at the Differabled Scotland seminar on exclusions last October – highlighting the much greater rate of exclusion for looked after children, and the prevalence of informal exclusions.  A report of that seminar should be available soon, if you missed it.

You can also find out more about school exclusions in Scotland and the legal position specifically in my third newsletter, which has a focus on exclusion from school.  You can access the newsletter using mailchimp and subscribe for future editions.

Notes from the end of the year

Today was my first day back at work, which is always a bit of a difficult gear change.  It was also the first day back at school for many pupils and teachers.

I am not one for New Year’s Resolutions in general, but I do want to post to the main blog more often in 2019, so I will start as I mean to go on …

This post is a bit of a round up of a few things that I wanted to write about towards the end of last year, but didn’t get around to.  So, I will just summarise them here, with the relevant links for you.  It is possible that I will return to some of these in due course, but then again, who knows?

  • The Scottish Commission for Learning Disability released their 2018 report.  The 2018 Learning Disability Statistics Scotland provides data on adults with learning disabilities from local authorities across Scotland.  The report is provisional, as Glasgow City Council’s returns were late.
  • The Children and Young People’s Commissioner Scotland published the report “No Safe Space” following a national investigation into the use of restraint and seclusion in Scotland’s schools.  It recommended (among other things) that the Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development.
  • On a similar theme, a pupil in Yorkshire has brought legal action against his school over the use of “consequence rooms” containing booths in which children sit in silence for hours as punishment for breaking school rules.  The article in the Guardian gives the details of the case, including the Dept. for Education’s response.
  • It was reported in TESS in December that due to a variety of terms being used for support staff, there is no way of monitoring levels of staffing for pupils with additional support needs.  The article: “Have support-staff numbers dropped? Who knows?” quotes Green MSP Ross Greer as describing the term pupil support assistant as “comically generalised”.  This seemed to me to be a bit of a non-story as the idea that you can quantify number of ASN staff within a mainstream school context is counter-intuitive.  The better additional support needs are understood and supported by all staff, the fewer dedicated ASN staff will be required – so a drop in these numbers should be a good thing, right?
  • The campaign for funded nursery places for deferred pupils, Give Them Time, had a useful blog piece outlining the right to defer in Scotland: “To Defer or not to Defer?
  • The UK Supreme Court delivered a judgement about Section 15 of the Equality Act 2010 (Discrimination arising from disability) in the case of Williams v. Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65. Though not an education case, the principles apply – helpfully, the Court confirmed “the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.”
  • The Herald carried an article on Boxing Day which reported on the “Demand for radical overhaul of controversial policy on vulnerable pupils.” which quoted several sources questioning the implementation of the presumption of mainstreaming and some of the consequences thereof.  The Cabinet Secretary for Education reiterated the Government’s support for the presumption of mainstreaming.  I think most are agreed that it is not the policy which requires to be overhauled, but its funding and implementation.  (I also think the legal drafting could do with some work, but that’s another story)
  • My third newsletter hit the digital presses just before the end of term, with a focus on exclusion from school.  You can access the newsletter using mailchimp and subscribe for future editions.

And that’s it for now.  Let me know in the comments any topics you’d like to see covered here or in the newsletter.

Additional Support Needs Update (Issue 3)

The latest newsletter is now available to download. Do please read it, share it and subscribe for future editions.

This edition looks in detail at exclusions from school, with a particular focus on autism and disability and a list of reminders for exclusion appeals.  The support spotlight this edition is on Children in the Highlands Information Point (CHIP+).

Do let me know what you think about the newsletter in the comments.

Additional Support Needs Update (issue 3)

 

Braille

A Vision for Equal Education

80% of learning in schools is through vision – which means that traditional education models exclude children with visual impairments. The number of
children with a visual impairment (VI) has more than doubled in the last seven years which, when coupled with a reduction in specialist VI teachers, makes the issue of how VI children are supported in their learning journey a critical one.

Attainment, measured by the number of pupils moving onto a ‘positive destination’ after school, is 5% lower for children and young people with a visual impairment than for those without additional support needs (although it is currently on an upwards trajectory). More worryingly, progression to higher education for VI students is on the downturn.

With Scotland’s education system presuming that a child will be educated in a mainstream environment (Section 15, Standards in Scotland’s Schools etc Act 2000), it is likely that visually impaired pupils will attend a mainstream school. The fall in numbers of specialist teachers and support staff, however, can mean that VI children are left to cope with a visual learning environment without adequate adaptation or support.

The Royal Blind, the charity which runs the Royal Blind School, has recently launched a campaign to highlight the difficulties faced by pupils with a visual impairment. ‘Our Vision for Equal Education’ furthers their commitment to a future where all vision impaired children and young people receive the specialist support they need.  The campaign includes four key actions:

  1. A Scottish Government Action Plan to recruit and retain the specialist teachers needed for the increased numbers of vision impaired pupils.
  2. A new SQA training qualification in vision impairment for education support staff and others, including those providing care and therapy.
  3. Effective transitions for vision impaired young people post-school education.
  4. A fair and pupil centred placement system for vision impaired young people.

These campaign aims, if realised, would support education authorities and others in fulfilling their duties to make adequate provision for the additional support needs of pupils with a visual impairment, and to make reasonable adjustments to avoid substantial disadvantage to such pupils as a result of their disability.

For more information about the campaign, please go to: https://www.royalblind.org/royal-blind/campaigns/reports-and-consultation-responses/our-vision-for-equal-education

Photo credit: https://www.flickr.com/photos/rolanddme/4944962234

Additional Support Needs Update (Issue 2)

The second newsletter is now available to download. Do please read it, share it and subscribe for future editions.

This editions covers: notes on the news; the attainment challenge; meeting children’s healthcare needs in school; school clothing grants; and a spotlight on Enquire.

You can also let me know what you think about the newsletter or its contents in the comments.

The Additional Support Needs Update, Issue 2

Autism, Disability and School Exclusions

Regular readers of this blog and my Additional Support Needs Update newsletter may recall a case in which a mother successfully claimed against Glasgow City Council for discriminating against her son, who has an Autistic Spectrum Disorder. The nub of that case was that he had been excluded, to the detriment of his mental health, for behaviour related to his disability. The behaviour in question included occasions when he was distressed, and when feeling cornered, he could lash out.

The Tribunal, in that case, was satisfied that the child met the definition of a disabled person for the purposes of Section 6 of the Equality Act 2010. This meant that the protection against discrimination afforded by the Equality Act came into play, and the education authority had an obligation to make reasonable adjustments for him in school.

The reasoning of the Tribunal seems straightforward. The child had a disability, and the behaviours linked with it were protected by the Act. However, as often is the case, the law is not as straightforward as it could be. There are situations where being a disabled person in terms of the Act may not offer universal protection. Although all disabilities should be treated equally, some are more equal than others.

The Regulation 4 exception

Reg 4 of the Equality Act 2010 (Disability) Regulations 2010 sets out conditions that are not to be treated as impairments or disabilities – including things like voyeurism and a tendency to set fires. One such exception at Reg 4(1)(c) is “a tendency to physical .. abuse of other people”. Guidance issued in May 2011 makes it clear that this exclusion applies not only where such behaviour constitutes an impairment in itself, but where it “arises as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act”. In the latter circumstance, the behaviour that falls within the exception will be excluded from protection, but the rest of the effects of the disability will be covered.

Put simply, where your child has a condition which manifests itself in a number of ways, including physical outbursts, they will be protected by the Act except where any discrimination they may experience is as a result of the physical outbursts (if the outbursts amount to a tendency to physical abuse). Those are an excluded condition under the Act.

Even if your child, like the child in the Glasgow City Council case, is excluded because the school environment leads to a violent response, you may find that there is a barrier to challenging that exclusion.

Human Rights for all

You may be thinking that that does not seem in the spirit of the Act – and you would, in my view, be right. Although it was not an argument that ultimately required to be decided in the Glasgow City Council case, it was one I made in front of the Tribunal – in that case and in others.

Now, however, the matter has been put determined in a recent Upper Tribunal decision in England: C & C v The Governing Body of a School (SEN) [2018] UKUT 269.

The child, in this case, had autism, anxiety and Pathological Demand Avoidance (PDA). The appeal concerned a fixed term exclusion from the school for 1.5 days. The reason given for the exclusion was ‘aggressive behaviour’. The First Tier Tribunal dismissed the claim as although it considered that the child generally met the definition of a disabled person, he had been given the exclusion as a result of his ‘tendency to physical abuse’.

The family appealed on the basis that Reg 4(1)(c) should be disapplied to avoid a breach of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 14 provides that the enjoyment of the rights conferred by the Convention should be secured without discrimination. One of the rights covered by the Convention is the right to education (in Article 2 of the First Protocol).

The Upper Tribunal agreed that Reg 4(1)(c) applied to both freestanding conditions as well as conditions arising in consequence of protected impairments. While there may be good social policy reasons to exclude free standing conditions ‘that are not generally recognised as disabilities’, the Secretary of State failed to justify, in the context of education, maintaining 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.”

The decision making process was fortified by the belief of officials, set out in a discussion paper in October 2017 and produced to the Tribunal, ‘that there would be fewer exclusions of disabled children from school if regulation 4(1)(c) applied only to free-standing conditions’

For those reasons, the Tribunal found that, in the context of education, regulation 4(1)(c) of the 2010 Regulations violates the Convention, and should not be applied in the circumstances of this particular case.

So, what now?

This is a decision of great significance across Great Britain. In Scotland, exclusion rates for children with additional support needs are twice those of children who don’t require support. In England and Wales, a child with a disability is seven times more likely to be permanently excluded. It is hoped that this judgement will lead to schools thinking twice before resorting to exclusion, and to more appropriate supports being put in place by budget holders at authority and government levels.

The decision does not mean that disabled children cannot be excluded for violent behaviour, simply that the school must be able to justify in law any such exclusions. Education authorities in Scotland should also consider their exclusion practices more generally, as higher rates of exclusion for disabled pupils may leave them vulnerable to indirect discrimination claims as well.

It is encouraging that the Westminister Government seem to be considering an amendment to the Regulation. Hopefully, this judgement will speed that up. With Brexit putting the UK’s commitment to the Convention in doubt, having this concession enshrined in statute would offer some peace of mind to families with disabled children.