Thousands of disabled children have won new protection from being unfairly excluded from school after a judge ruled that the government’s equality laws were unlawful.
The upper tribunal ruled last week that a 13-year-old pupil, known as “L” for legal reasons, should not have been excluded from his school because his behaviour was linked to his autism.
Now campaigners are calling on the education secretary to change the law to take account of the appeal victory.
L had originally been excluded from school for one-and-a-half days, when he was 11, because of his aggressive behaviour.
The way that Equality Act regulations have been interpreted has meant that children like L who were defined as having “a tendency to physical abuse” were often not treated as “disabled” and were therefore not protected by the Equality Act.
This lack of protection meant schools did not have to justify how a decision to exclude a disabled child in these circumstances was proportionate or explain how they had made reasonable adjustments to support the pupil so the behaviour could be prevented or reduced.
But Judge Rowley, sitting in the upper tribunal, has now found that this rule comes “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” and was a breach of the Human Rights Act.
He said that “aggressive behaviour is not a choice for children with autism” and that the education secretary had “failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special education provision to be made for them”.
He added: “In that context, 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.”
He said he believed that his decision was “in harmony with” both the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child.
Statistics show that almost half of all school exclusions involve children with special educational needs and disabilities (SEND), who are almost seven times more likely to be permanently excluded than other pupils.
L’s parents said in a statement: “We have always believed 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.
“School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over.
“Knowing that one of the key rules that prevented that has now been found to be unlawful is of great comfort to us, and we hope, many other families.”
Michelle Daley (pictured), interim director of The Alliance for Inclusive Education (ALLFIE), said: “ALLFIE has continuously expressed our deep concerns about the increase in the level of exclusion of disabled children and children with SEND and also the increase in the number of children in segregated provision.
“All credit to L and his parents for pursuing the case and in helping to bring about this ruling to get the state to recognise the human rights of disabled children.
“This is an encouraging move forward, ensuring that children will be protected under the law.
“We now hope that further changes will be made to properly implement article 24 of the UN Convention on the Rights of Persons with Disabilities to end segregated education.”
Polly Sweeney, human rights partner at lawyers Irwin Mitchell, who represented L’s family, said: “We are delighted with this outcome and pleased that the upper tribunal has recognised in strong terms that the profound and severe discriminatory impact that these rules have on vulnerable children such as L when accessing education is unlawful.
“As has been made clear in the judgment, 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.”
Barrister Steve Broach, who argued L’s case at the tribunal, said on Twitter that the successful appeal “shows the power of the Human Rights Act”, as rules made under the Equality Act were found to have breached L’s human rights.
Melanie Field, executive director at the Equality and Human Rights Commission, which funded the case, said: “We are delighted with this judgment which will require schools to make reasonable adjustments to try to prevent or manage challenging behaviour and justify that any exclusion in these circumstances is proportionate.
“This is a positive step towards ensuring that everyone has the opportunity to reach their potential through education and increasing the inclusion of disabled children in mainstream education.”
A DfE spokeswoman said: “The government is fully committed to protecting the rights of children with disabilities, as well as making sure schools are safe environments for all pupils.
“We will be carefully considering the judgment and its implications before deciding the next steps.”
The government launched a review of exclusions earlier this year, led by former Tory education minister Edward Timpson, which is examining how schools use exclusions and why some groups are disproportionately excluded.
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