School exclusions and disability discrimination

One of the lacunae in the protection afforded to disabled children from discrimination in schools, particularly in relation to exclusions, has long been regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 and its predecessor provision. That regulation excludes from the ambit of impairments which might amount to a disability “a tendency to physical or sexual abuse of other persons”.

But as is well known to anyone who works in this field there are many children with disabilities such as autism or ADHD who subjected to stress or frustration may lash out at others around them: such behaviour is not deliberate or malicious, but a manifestation of their impairment. It can lead to their exclusion from school, on a temporary or permanent basis. But in such circumstances they will not have a remedy under the Equality Act 2010. This might be thought to be unfair, particularly if the underlying causes of the stress or frustration, could be traced back to antecedent failures to make reasonable adjustments to meet their needs.

In the case of X v The Governing Body of a School (SEN) [2015] UKUT 0007 (AAC) the Upper Tribunal gave guidance as to when a tendency to physical abuse could be said to exist, stopping any potential claim for disability discrimination against a school, in its tracks.

116. First, we note that Parliament has chosen not to use the phrase “physical violence.” We infer that there must always be an element of violent conduct. However, that on its own may not necessarily be sufficient to meet the definition. The greater the level of violence, the more readily it will fall within the meaning of “physical abuse.”

117. Secondly, there is no requirement for any knowledge on the part of the perpetrator that what they are doing is wrong. This is because the regulation is concerned with the manifestation of behaviour. We remind ourselves of the terms of paragraph 7.3 of the Explanatory Memorandum to the 2010 Regulations: The tendencies in regulation 4(1) are excluded for public policy reasons, “for example to avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity.” However, if the conduct complained of constituted something akin to a spasmodic reflex, in our judgment it would not meet the terms of the definition.

118. Thirdly, the existence of some sort of misuse of power or coercion may lead to the conclusion that a much lower degree of violence than would otherwise fall within the terms of the regulation would suffice. Conversely, a finding of physical abuse in the absence of such factors would be likely to require careful justification.

119. Fourthly, whilst children are, as a matter of law, included within the ambit of regulation 4(1)(c), nevertheless as we have already observed, the stage of a child’s development is a factor which will fall to be considered in deciding whether or not that particular child has a condition so as to bring it within the remit of the regulation at all. If the child does have such a condition, then insofar as the child’s conduct manifests a tendency to physical abuse of other persons it will fall within the terms of the regulation.

120. Finally, it is not necessary for a tendency to physical abuse to be manifested frequently or regularly. It may be that the tendency is only displayed in response to certain trigger events, but that does not mean that it is not present at other times. In principle, in some circumstances such a tendency may be revealed in a one-off incident, so long as there is evidence of a tendency to physical abuse in the form of (for example) medical evidence. The regulation is less concerned with whether a particular incident constitutes actual abuse, but rather it focusses on whether the incident is indicative of a tendency to abuse.

121. In summary, a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above. In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school. However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.”

This guidance is now as obsolete as the cutlass and the longbow, in the war of words that constitutes legal argument. In the case of C and C v The Governing Body of a School and Others [2018] UKUT 269 (AAC) the Upper Tribunal accepted an argument that had not been run in the earlier case, that regulation 4(1)(c) in the context of a child in educational provision, was contrary to article 2 of the First Protocol and article 14 of the European Convention on Human Rights. The Upper Tribunal stated that it could read down regulation 4(1)(c)-whilst, it should be noted dealing elliptically with how it could be read down. The Tribunal said:

95. It was common ground that, if I were to reach the conclusion that I have, it would be permissible for me to read and give effect to regulation 4(1)(c) in a way that makes it Convention compliant without disturbing a fundamental feature of the regulation (Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557). Whilst a number of suggestions were mooted, my preferred option is-by analogy with the approach adopted in Wandsworth LBV v Vining [2017] EWCA Civ 1092; [2018] ICR 499-for me to say that, when construed in accordance with section 3 of the Human Rights Act 1998, regulation 4(1)(c) does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.

One would have thought that this was an issue that could usefully go further. The key basis on which the appeal succeeded was the fourth limb of the test in R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 where the issue was whether bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has fair balance been struck between the rights of the individual and the interests of the community? This is an area where reasonable judges can differ.

But it may be that the Secretary of State, has no appetite for a further appeal. The issue in question is by no means clear cut. For at least 2 years, a review of regulation 4(1)(c) has been on the cards, and indeed pressure has been building ever since its malign effect on disabled children’s schooling was recognised, for its repeal. The Secretary of State may simply heave a barely concealed sigh of relief and let this decision stand, with one of the department’s knotty problems resolved by the judiciary.

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