The Equality Act 2010 (“the Act”) protects disabled pupils from discrimination and sets out the duty on schools to make reasonable adjustments. Until very recently, disabled pupils with a condition which included a tendency to “physical or sexual abuse of other persons” (commonly referred to as a tendency to violence) did not have such protection. However, a recent case has fundamentally changed that position.
In the case of C&C v The Governing Body of a School, the Upper Tribunal (the court that hears appeals of decisions taken by the First-tier Tribunal) looked at whether it was lawful for a child with autism who had been suspended from school for aggressive behaviour to be excluded from the protections of the Act. It concluded that it was not.
Figures from the Department for Education have shown that, nationally, just over four in 10 of the reasons given by headteachers for excluding pupils with autism were physical assault against an adult or pupil. In addition, figures from the National Autistic Society show that 30% of the 260 enquiries made to their dedicated School Exclusions Service in February and March 2018 involved a tendency to physical abuse. This case clearly has wide-reaching implications.
Facts of the case
An 11-year-old child with autism, anxiety and Pathological Demand Avoidance was suspended from his school for 1.5 days. The reason given for this temporary exclusion was his aggressive behaviour. The parents brought a claim in the First-tier Tribunal under the Equality Act. The First-tier Tribunal found that he had been involved in a number of incidents over a 10 -month period, largely involving pulling, pushing and grabbing others. There had been one occasion when he had hit a teaching assistant with a ruler, pulled her hair and punched her, and another occasion when he hit her with a book.
The First-tier Tribunal rejected a claim that the child should be afforded the protection of the Act: he had a “tendency to physical abuse” and so, in accordance with the Act, he was not to be treated as disabled. This decision was appealed to the Upper Tribunal.
Under the Act, the definition of disability is “a physical or mental impairment” that has “a substantial and long-term adverse effect” on the individual’s “ability to carry out normal day-to-day activities”. The Act provides that regulations may be made to set out what is, or is not, to be considered an impairment. In this instance the relevant regulations are the Equality Act 2010 (Disability) Regulations 2010 (“the Regulations”). These provide, amongst other things, that for the purposes of the Act “a tendency to physical abuse” of other persons is not to be treated as amounting to an “impairment”. The exception applied both to circumstances in which such a tendency constituted an “impairment” itself and where the tendency arises as a consequence or manifestation of an impairment that otherwise constitutes a disability.
The rationale for the exception is to do with public policy: that where someone’s condition results in or involves anti-social or criminal activity that has an impact on others, that person should not enjoy the protection of the equality legislation in relation to such activity.
The judge in this case was asked to consider whether this exception was compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms (principally the right to education and the right to benefit from that right without discrimination). She concluded, in no uncertain terms, that it was not.
In a very thorough and lengthy judgment she noted a number of things, including that the tendency to physical abuse exception put certain disabled children at a disadvantage to other disabled children (whose condition did not involve a tendency to physical abuse of others); that that disadvantage resulted in a detriment to children like L, because it effectively allowed schools to exclude children like him without necessarily trying to meet their needs; that the exception affected a significant number of children, and that if the exception were not to apply, it would not mean that schools had to tolerate violent behaviour at all costs – a school could still argue for example that exclusion in a particular case was justified, and a school would only be required to make reasonable adjustments (not all adjustments). Of particular importance to the judge was the fact that aggressive behaviour is often not a choice for autistic children.
Accordingly, the exception for those with a tendency to physical abuse of others will not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.
Impact on schools
The judgment does not mean that schools must tolerate violent behaviour at all costs - not at all – but it does mean that when dealing with disabled pupils with a tendency to physical abuse of others, schools can no longer disregard the provisions of the Equality Act when dealing with such behaviour. Schools that find themselves in such situations should therefore consider whether or not they have complied with the requirements of the Equality Act, including the need to make reasonable adjustments, before and when dealing with aggressive behaviour by a child whose condition is more likely to result in a tendency to physical abuse. It should be emphasised, however, that schools are only required to make “reasonable” adjustments: there is no need to show that all possible adjustments have been made, irrespective of cost or practicalities. It will also be open to schools who are alleged to have discriminated against a disabled pupil because of conduct arising from the disability to show that the treatment complained of (eg exclusion or some other disciplinary sanction) was justified, provided the school can convince a Tribunal that the treatment was a proportionate means of achieving a legitimate aim.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2018