The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
I bring news of an interesting disability discrimination case involving an independent school in England. The case was determined by the Upper Tribunal, which is basically the appeal route as exists in Scotland from the Health and Education Chamber (previously known as the Additional Support Needs Tribunals).
The case is that of Ashdown House School v. JKL & MNP (not their real names!) and involved a pupil who was referred to for the purposes of the case as “Bobby”.
The facts of the case
Bobby was ten years old and a pupil at Ashdown House School, who has ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb. He is a disabled person in terms of Section 6 of the Equality Act 2010.
He was permanently excluded from the School on 9 February 2019. He was excluded for aggressive behaviour, including placing another pupil in a headlock and what the school describes as “37 incidents of unprovoked aggression”. The school admitted that the exclusion amounted to unfavourable treatment, but maintained that the exclusion was a proportionate means of achieving a legitimate aim. The aim in this case was to ensure the health and safety of staff and pupils at the school. For their part, the parents accepted that this was a legitimate aim, but not that the school had acted proportionately.
The Tribunal (at first instance) found that the exclusion was not proportionate, and was therefore unlawful discrimination. This was for a number of reasons. The Tribunal found that while the school had made a number of reasonable adjustments, there were other reasonable adjustments which could have been made (including anger management sessions, consulting with the local authority, and allowing parents to seek a review of Bobby’s Education, Health and Care Plan (EHCP), or seeking advice from CAMHS regarding his medication). The Tribunal also found that the exclusion came “like a bolt out of the blue” in that neither pupil nor parents had been warned it was a possible consequence of the incidents. There was also evidence that other violent incidents within the school (involving other, non-disabled pupils) had been dealt with less severely.
The Tribunal ordered Bobby’s immediate readmission, and that the school formally apologise to Bobby.
The school appealed to the Upper Tribunal.
Legal questions arising on appeal
In considering the appeal, the Upper Tribunal had to consider four discrete points:
- Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
- How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
- In the light of the courts’ traditional reluctance to order specific performance of contracts involving personal service/contact or supervision, is an order to reinstate a pupil at an independent school (in terms of a contract between the parents and the school) appropriate?
- Is it appropriate to order an apology in special educational needs and disability (SEND) cases?
The Upper Tribunal’s decision
The Upper Tribunal dismissed the appeal, and Bobby was – ultimately – allowed to return to school. I understand that he also received his apology.
The school argued, that in the case of an independent school, the Tribunal would be restricted to making a declaration of discrimination, and making recommendations for the school to consider. The Upper Tribunal rejected this argument. The wording of the Act permits Tribunal to make such order as it thinks fit (excluding an order for payment of compensation). This wording obviously includes a power to order reinstatement.
At some considerable length, the Upper Tribunal considers how one of its decisions might be enforced, if not complied with.
Although the Tribunal itself does not have the power to enforce its own decisions in that regard, one of the parties to the action can rely on the inherent power of the High Court to commit for contempt of court in the event of non-compliance with the order or the [Equality and Human Rights Commission] may itself take proceeding under s.24 of the 2006 Act to achieve the same end. The School, however, is not amenable to judicial review because it is not a public body and in expelling the pupil it was not exercising public law functions.
Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.
Edit – while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President under Rule 12 of the Tribunal’s Procedure Rules do seem to be limited to decisions affecting education authorities. They would not be available where the responsible body was the proprietor of an independent school. Apologies. In such cases, a parent or pupil might approach the Scottish Ministers directly (or the Registrar of Independent Schools) to progress their complaint.
The Upper Tribunal determined that while the Tribunals should have regard to the historic reluctance of the courts to impose specific performance of a contract which involves personal service and supervision, and the reasons for that reluctance, this did not preclude the Tribunal from making such an order in appropriate circumstances.
The Upper Tribunal suggested that it would be “sensible for a Tribunal considering a disability discrimination claim in the future to consider matters such as whether it is practicable to make an order for reinstatement and, in cases where the applicant has caused or contributed to the expulsion, whether it would be just to order reinstatement.”
In finding that an order for an apology was appropriate in these circumstances, the Upper Tribunal set out the following guidance for future cases (likely to be relevant in Scottish cases, too) repeated largely verbatim below:
- The Tribunal does have the power to make an order for an apology.
- An apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination.
- There can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant.
- A tribunal should consider whether the apology should more appropriately be made to the child or to their parents. In the case of very young children the latter may be more appropriate for obvious reasons.
- An order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct.
- However, the fact that there has been a contested hearing and that the respondent has strenuously disputed that there has been any discrimination or unlawful conduct is not decisive against ordering an apology.
- Nevertheless, particularly where there has been a dispute or a contested hearing, the tribunal should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
- Before ordering an apology, a tribunal should always satisfy itself that it will be of some true value.
- A tribunal should always be aware that there may be problems of supervision if it accepts responsibility for overseeing the terms of the apology which can result in drawn out arguments over wording.
The decision of the Upper Tribunal in this case is likely to be of interest and use in a number of Scottish cases, especially those involving questions of admission and exclusion to an independent school. However, the points of guidance on the question of an apology are of broader application and I anticipate will be widely cited within the Health and Education Chamber.
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.”
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.
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.
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.
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.
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.
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)  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.
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.