On the 8th August 2018 the Upper Tribunal handed down its decision in C&C v Governing Body of a School which is likely to be of assistance to many disabled children facing exclusion. The decision is somewhat dense but our summary will focus on what it means on a practical basis for schools and children.
The definition of disability is found (HERE) in the Equality Act 2010 and this provides protection for children in school who satisfy this definition of disability. However, when it came to exclusions from school because of physically challenging behaviour, Governing Bodies often said that the behaviour for which the child was excluded falls within Regulation 4(1)(c) The Equality Act 2010 (Disability) Regulations 2010 (the Regulations’):
4.—(1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—
(c)a tendency to physical ….. of other persons,
Hence, the protection afforded to the child by the Equality Act 2010 was lifted. In practical terms, children with an ASD, ADHD, Sensory Processing Disorders etc who were excluded because of behaviour which arose as a consequence of their disability (referred to in the decision as ‘Meltdowns’) were often left with no redress.
This matter was considered by the Upper Tribunal on more than one occasion but, for whatever reason, the Regulations (known as secondary legislation) were seen to apply in schools.
So, what has changed?
Upper Tribunal Judge Rowley looked at the European Convention on Human Rights specifically
Article 2 of the First Protocol
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions
And, ARTICLE 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
His conclusion was that Regulation 4(1) (c ) was incompatible and should be disapplied, something that had not really been considered previously.
So, what does this mean for disabled children who have ‘meltdowns’ and are at risk of exclusion? It doesn’t mean that exclusion is not possible if a Governing Body can successfully make the argument that exclusion is a ‘treatment’ that is ‘a proportionate means of achieving a legitimate aim’. The legitimate aim put forward often relates to ‘health and safety’ and the need to maintain good discipline within the school, but they would also have to show that the punitive sanction of exclusion was the only thing that can be done in the circumstances. It is also worth noting that, in our opinion, this would be a difficult argument to make if all reasonable adjustments had not been made for the child. What it does mean is that the shield provided to a Governing Body by the Regulations has gone.
Anna Kennedy OBE of Annakennedyonline commented “For far too long we have been seeing children and young people across the UK, being excluded officially and unofficially because of their autism and overlapping conditions. Many of these young people also have a diagnosis of significant sensory processing condition which impacts on their daily lives and causes anxieties which can arise in challenging behavior . This in my opinion is why training is key and needs to be consistent.”
She added “As a charity we are in collaboration with Autism Reality Experience. Many school staff across the country should experience this innovative and immersive training experience designed to give participants an experience of what it is like to have a sensory overload.”