By Lucy Caulkett-
Autistic and disabled children must be protected from school exclusions, a judge has ruled.court has ruled that schools which exclude disabled children for challenging behaviour that includes a ‘tendency to physical abuse’ can no longer rely on a controversial exemption in the Equality Act’s regulations.The rules under ‘Regulation 4 of The Equality Act 2010 (Disability) Regulations 2010’ states that children with similar conditions to the autistic child in question are denied 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.
The appeal that resulted in the landmark ruling was brought by the parents of a 13 year old autistic child who was excluded because of his abusive behaviour. The
child has been granted anonymity for legal reasons, and the picture of the child featured in this article is NOT the child who was the subject of this appeal, but rather is a feature picture supplied by Australian based publication, The conversation.com – one of the publications with whom The Eye Of Media.Com sometimes liaise for pictures, research and exchange of ideas.
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The appeal received overwhelming support and funding from the National Autistic Society and the Equality and Human Rights Commission. It was however opposed by education secretary Damian Hinds, an “interested party” in the appeal who has been praised several times by The Eye Of Media.Com for his huge injection of cash he has put into the education system in the Uk to boost academic standards.
However, reputable family’s lawyers, Irwin Mitchell’s Public Law and Human Rights team and specialist barrister, Steve Broach from Monckton Chambers, opposed Hinds, and displayed a high level of legal brilliance in successfully presenting a broader interpretation of the law that has resulted in a victorious outcome for the child and his parents. He had argued:
“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.
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“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.”
BREACHED
Judge Rowley, sitting in the Upper Tribunal, indicated that the human rights of autistic or disabled children is breached if due to a condition which is no fault of theirs, they are excluded from schools. His judgement came after he was presented with a case inquiring whether the human rights of an autistic child had been breached after the unnamed child was excluded for his challenging behaviour in school. The child’s identity is being protected for legal reasons. The judge found that this rule came “nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other”. Judge Rowley stated:
‘Excluding such children often has a massive impact upon them. They may have struggled to find school placements in the first place and if excluded may struggle to find them again. They may find themselves in pupil referral units with inappropriate peer groups, exposed to significant misbehaviour. They may be out of school for long periods.’
She added: ‘I am driven to conclude that it would be hard to overstate the impact of regulation 4(1)(c) on this particularly vulnerable cohort of children.’“In my judgment the Secretary of State has failed to justify maintaining in force 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. In that context, to my mind it is repugnant to define as ‘criminal or anti-social’ the effect of the behaviour of children whose condition (through no fault of their own) manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations.”
The appeal to the Upper Tribunal related to an excluded child who suffers from autism, anxiety and Pathological Demand Avoidance. Prior to the landmark ruling, schools excluding pupils with disabilities like autism had relied on the Equality Act regulation 4(1)(c), which states that where there is ‘tendency to physical abuse’ their disability is not a protected characteristic under the Act.
A First Tier SEND Tribunal had originally ruled that the child was not ‘disabled’ insofar as his ‘tendency to physical abuse’ was concerned. The education secretary Damian Hinds (pictured) intervened in the case, as did the National Autistic Society (NAS).
SAFEGUARDS
Irwin Mitchell partner Polly Sweeney, who acted for the family, said the judgment ‘will ensure all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour’.
Jane Harris, director of external affairs at NAS, said: ‘We intervened in this case to try to close a legal loophole, which saw far too many children excluded from school. Before this judgment, schools were able to exclude pupils who have a “tendency to physical abuse”, even if the school had made no adjustments to meet their needs… the loophole meant that there was not enough incentive for schools to make necessary reasonable adjustments. And some schools resort far too quickly to exclusions.’
Melanie Field, executive director at the Equality and Human Rights Commission, added: ‘The level of exclusions of pupils with a special educational need or disability has risen dramatically in the last few years and they are now almost seven times more likely to be permanently excluded than other pupils. We funded this case as we were concerned that children whose disability can result in them being more likely to be aggressive were being unfairly denied access to education.’
A Department for Education spokesperson said: ‘The government is fully committed to protecting the rights of children with disabilities, as well as making sure schools are safe environments for all pupils. We will be carefully considering the judgment and its implications before deciding the next steps.’
The spokesperson added: ‘Early this year the government launched a review of exclusions, externally-led by [former children’s minister] Edward Timpson CBE, which is looking at how schools are using exclusions and why some groups are disproportionately excluded.’ The judgement will now make it difficult for schools to exclude pupils who display abuse, leaving teachers in schools with such pupils weakened, or forced to seek alternative measures to handle such pupils.
Pic Credit:The Conversation.Com
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