Legal Question – Inclusion Now 51

Question:

“My son Martin has undiagnosed ADHD and tends to fight with other children when bored during lessons and break times. The school say they have to consider other children’s safety and have decided to exclude him as he will not stop fighting despite requests to do so. They have provided him with some SEN provision because he is in receipt of SEN support (with an EHCP) and have tried various disciplinary methods, including detention and internal exclusions, with no success. I understand a recent court case says schools have to make reasonable adjustments for my son with behavioural issues. Are the school allowed to exclude Martin on health and safety grounds? What are their duties around making reasonable adjustments for him in school?”

Answer:

The Equality Act 2010

In addition to following specified procedural rules when deciding whether to exclude a child, it is also important that schools comply with the requirements of the Equality Act which prohibits discrimination against those with ‘protected characteristics’ including disability. Disability discrimination can take many forms. In order to be protected under the Equality Act 2010, a pupil would have to satisfy the statutory definition of disability set out in S6 Equality Act. A diagnosis is not required in order to be afforded protection under the Act.

Case Law

A recent case has clarified the law relating to pupils who exhibit challenging behaviour. Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 provides that a condition amounting to “a tendency to physical abuse of other persons” does not amount to an impairment in accordance with section 6 of the Equality Act 2010. Previous case law held that children exhibiting challenging behaviour in schools could be excluded from protection of the Equality Act by virtue of this regulation. The recent case of C and C v The Governing Body of a School [2018] UKUT 269 (AAC) held that this regulation did not apply “to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse”. This is an important decision for children with difficulties like Martin’s. It does not mean that children with challenging behaviour can never be excluded but ensures that the Act affords the same level of protection to disabled pupils with challenging behaviour as it does to other disabled pupils. This means the school is not able to discriminate against them and is under a duty to make reasonable adjustment in the same way they would for another child’s disabilities.

Reasonable Adjustments

In law, there is no set list of reasonable adjustments which must be made. It is a question of fact depending on what a child requires and what would be considered reasonable for a school to provide. To determine whether the school had failed to make reasonable adjustments, a court would consider what adjustments could have theoretically been made in the circumstances. In Martin’s case, this could include securing advice from the local authority on ADHD or putting 1:1 support in place.

Challenges

Should Martin ultimately be excluded, you will have a right to challenge this through an Independent Appeal Panel and/or to the special Educational Needs and Disability Tribunal on the basis of disability discrimination. These cases are often complex and sometimes legal advice can be beneficial on the specifics of such a case.

Partner with Simpson Millar specialising in education and community care law.

www.simpsonmillar.co.uk

Sarah Woosey