Human rights lawyers say that children with special educational needs account for almost half of all exclusions in schools.
Thousands of children with disabilities stand to be properly protected from discrimination in schools after a landmark tribunal ruling found the government’s equality laws are unlawful.
The appeal was brought by the parents of a 13-year-old boy with special educational needs, known as ‘L’, who was excluded from school due to behaviour which was linked to his autism.
Under the government’s equality laws, L and other children with similar conditions, did not have the protection from discrimination because their challenging behaviour was said to be ‘a tendency to physically abuse’– even in cases where the behaviour itself was a direct result of the child’s condition.
This meant children like L were not treated as ‘disabled’ in relation to their physically aggressive behaviour and they were left with no practical or effective way of challenging decisions to exclude them from school.
Irwin Mitchell’s Public Law and Human Rights team represented the family at a two day hearing in the Upper Tribunal in London in July alongside specialist barrister, Steve Broach from Monckton Chambers.
They argued this exemption discriminated against disabled children with conditions such as autism that were more likely to result in challenging behaviour.
Statistics show that children with special educational needs account for almost half of all exclusions in schools. However, the lack of protection under the Equality Act meant that until this court ruling, schools were not required to justify that a decision to exclude disabled children in these circumstances was proportionate.
However, Judge Rowley, sitting in the Upper Tribunal, who was tasked with examining whether this rule was in breach of L and other children’s human rights found that this rule 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".
Judge Rowley, recognising that "aggressive behaviour is not a choice for children with autism" held: "In my judgment the Secretary of State has 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 educational provision to be made for them."
"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.”
Polly Sweeney (pictured), the lawyer who led the appeal, 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."
"L’s parents’ strength and determination in pursuing this appeal on behalf of so many children is admirable and were it not for their tenacity and courage, we would not have the decision we have today."
"We also wish to take the opportunity to thank both the National Autistic Society who provided important evidence to the Tribunal as an interested party and the Equality and Human Rights Commission, without whose funding this appeal could not have been brought."
L’s parents said: "We are both delighted by this ruling. 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.
"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."
"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.”
Human rights precedent
Melanie Field, Executive Director at the Equality and Human Rights Commission, said: "The level of exclusions of pupils with a special educational need or disability has risen dramatically in the last few years and they are now almost seven times more likely to be permanently excluded than other pupils."
"We funded this case as we were concerned that children whose disability can result in them being more likely to be aggressive were being unfairly denied access to education."
"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."
L was suspended after hitting a teaching assistant with a ruler, punching her and pulled her hair.
Jane Harris, Director of External Affairs at the National Autistic Society, said: "This is a landmark verdict which could transform the prospects of future generations of children on the autism spectrum, by helping them get the education they deserve. The government should recognise this decision and act immediately to make sure that autistic children are no longer unfairly excluded from school."
"We intervened in this case to try to close a legal loophole, which saw far too many children excluded from school. Before this judgment, schools were able to exclude pupils who have a ‘tendency to physical abuse’, even if the school had made no adjustments to meet their needs.
"There are around 120,000 school aged children on the autism spectrum in England. Being autistic means someone sees, hears and feels the world in a different, often more intense way than other people, which can make school an overwhelming place.
"Without the right support, things like having a quiet place to retreat to when it gets too much or adapting communication strategies to their needs, autistic children can become highly anxious."
"In some cases, children can become so overwhelmed that they can’t control their behaviour, which others can misinterpret as them being naughty or disruptive, when in fact they're extremely distressed."
"Exclusions should only happen as a last resort, when schools have tried every other practical solution. But the loophole meant that there was not enough incentive for schools to make necessary reasonable adjustments. And some schools resort far too quickly to exclusions. This contributes to children on the autism spectrum being three times more likely to be excluded than children without special educational needs. "
"Exclusions can have a devastating and life-long impact on an autistic child, holding back their learning and emotional development, as well as their long-term prospects. We hope the government will respect the court’s well-considered judgement, make any further changes to the law if needed and give hope to thousands of autistic children and their families."