A legal case being heard this week highlights how disabled children who can be physically aggressive because of their impairment are currently being failed by equality laws, say inclusive education campaigners.
The upper tribunal this week heard the appeal brought by the parents of a 13-year-old disabled boy, known as L, who was excluded from school because of behaviour linked to his autism.
The way that Equality Act regulations are currently interpreted means children like L who are defined as having “a tendency to physical abuse” are often not treated as “disabled” and are therefore not protected by the Equality Act.
The lack of protection under the Equality Act means schools do not have to justify how a decision to exclude a disabled child in these circumstances is proportionate or explain how they have made reasonable adjustments to support the pupil so the behaviour can be prevented or reduced.
Statistics show that almost half of all school exclusions involve a child with special educational needs.
Two years ago, a report by a House of Lords committee on the impact of the Equality Act on disabled people said the regulations had “unintentionally, discouraged schools from paying sufficient attention to their duties” under the act.
It called for the regulations to be amended “so that a tendency to physical abuse of other persons ceases to be treated as not amounting to an impairment for the purposes of the definition of ‘disability’”.
Simone Aspis (pictured), campaigns and policy coordinator for The Alliance for Inclusive Education (ALLFIE), pointed to the committee’s recommendation, and said: “If the law was amended to remove this regulation then we will find that education providers will be required to follow the law and make reasonable adjustments for disabled pupils and students.
“Too often schools hide behind this regulation so that they can exclude disabled pupils without good reason, which is totally unacceptable.”
Navin Kikabhai, ALLFIE’s chair, said the case demonstrated that the law was “fundamentally flawed” and “highlights the increasing erosion of disabled children’s rights, and an increasing indifference to children who require multi-disciplinary support”.
He said this support was “disappearing in increasing numbers from local schooling due to the depletion of local authority support and engagement”.
Polly Sweeney, a human rights partner at solicitors Irwin Mitchell, who is representing the family in its appeal against a ruling that found in favour of L’s school, said: “This appeal is about the fundamental right of access to education for disabled children whose conditions, like autism, result in behaviours which can be physically aggressive.
“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.”
Barrister Steve Broach was set to ask the tribunal to find that the way the rule has been interpreted so far breaches L’s human rights.
The appeal has received funding from the Equality and Human Rights Commission, and is supported by the National Autistic Society, but is being opposed by the education secretary, Damian Hinds.
L’s parents said: “We believe passionately that our son and other children in his position should have equal rights to be able to go to school and receive the support they need to achieve the best possible outcomes.
“L’s autism means that he will grow up in a world where he will face challenges and adversity throughout his life.
“School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over.
“These rules currently prevent that and we hope the tribunal will do what is needed to correct this inequality.”
The Department for Education (DfE) has said it will examine whether a change in the law is needed.
A DfE spokeswoman said: “All schools have a legal duty not to discriminate against disabled pupils, which includes not excluding them from school because of their disability.
“While this case continues, it would be inappropriate to comment on the details.”