The recent case of C&C v The Governing Body of a School has reversed a regulation made under the Equality Act which meant that disabled children were not entitled make a claim of disability discrimination regarding their exclusion by a school if their behaviour causing the exclusion demonstrated a ‘tendency to physical abuse.’
The regulation was put in place to protect society from disability discrimination claims by individuals involved in various forms of antisocial behaviour including violence. This exemption included children in schools.
The case was brought by the parents of a child with autism – referred to in the case as ‘L ’– who was excluded for one-and-a-half days after hitting a teaching assistant and pulling her hair. The First Tier Tribunal judge ruled that L’s exclusion was not discriminatory, due to the exemption. An appeal was brought to the Upper Tribunal; which also heard evidence from the Secretary of State for Education (SSE) and the National Autistic Society (‘NAS’).
The NAS’ evidenced the numbers of children with autism who are excluded from school for violent behaviour (40% of such exclusions), the impact on them, and how the aggressive behaviour of some children with autism may be intrinsic to their underlying disability and out of their control. Tellingly, the SSE’s evidence acknowledged that a House of Lords Select Committee recommended in 2016 that the law be changed to disapply the exemption for children in schools, and also revealed that the SSE’s own officials had pressed for this change to be implemented. The SSE had failed to progress it. There had not yet been appropriate consultation.
On 8 August 2018, Judge Alison Rowley overturned the first tribunal’s decision. She found that the ‘tendency to physical abuse’ exemption was incompatible with disabled pupils’ right to education under the European Convention on Human Rights and consequently the regulation allowing the exemption was unlawful and no longer to be used. The exemption did not strike a fair balance between the rights of disabled children to access education and the public interest: as required under the Convention.
The consequence is that the law will now treat any child with a tendency to physically abuse others exactly the same as any other child who is subject to exclusion by a school. If a disabled child with that tendency claims disability discrimination, the school will have to show in the usual way that the exclusion was proportionate and justified. For that to be shown, the school will have to provide evidence that all reasonable adjustments had been made for the disabled pupil and alternative actions considered prior to the exclusion being imposed. This is already good practice followed by the vast majority of schools but will now be essential and school leaders are advised to review carefully how they make reasonable adjustments for children at risk of perpetrating violent behaviour, make sure they document those adjustments and review them regularly for effectiveness.