Schools can no longer rely on an Equality Act exemption to exclude children with disabilities who have ‘a tendency to physically abuse’, following an Upper Tribunal decision.
The ruling, C&C v Governing Body [2018] UKUT 269 (AAC), could potentially affect thousands of schoolchildren with special educational needs.
A 13-year-old boy, L, was excluded for ‘a tendency to physically abuse’ even though his behaviour was linked to his autism. Pupils that fall under this category are usually considered exempt from the protection of the Equality Act 2010 under reg 4(1)(c), which means schools do not need to justify the exclusion.
Allowing L’s parents’ appeal, however, Judge Rowley said the use of the exemption 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’.
‘Aggressive behaviour is not a choice for children with autism,’ she said. ‘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.’
Polly Sweeney, partner at Irwin Mitchell, which acted for the parents, said: ‘This decision does not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it 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.’
A spokesperson for the Department for Education said: ‘We will be carefully considering the judgment and its implications before deciding the next steps.’
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