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.

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Excluded from school – what next?

The research evidence on exclusions from school make for grim reading.

The 2013 Edinburgh Study on Youth Transition and Crime found that pupils who were excluded from school at age twelve were four times more likely to be jailed as adults.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

Additionally, Scottish Government statistics from December 2015 reveal that pupils with additional support needs are more than four times more likely to be excluded than pupils with no additional support needs.

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.