Can A Pupil With Autism Be Excluded For Aggression?

Disabled children with a tendency to abuse others physically should not fall outside the protection of discrimination legislation

The Upper Tribunal of the Health, Education and Social Care Chamber (Special Educational Needs and Disability) has ruled that a pupil with autism who has a tendency to physically abuse others arising from that condition should be protected by the Equality Act 2010.

Case details

The case of C & C v Governing Body of a School and others concerns L, an 11 year old child who suffers from autism, anxiety and Pathological Demand Avoidance. Over a ten month period a number of incidents of physical aggression by L had been recorded by the school, including pulling, pushing and grabbing others and pulling the hair of and punching a teaching assistant. L received a fixed term exclusion of 1.5 days for aggressive behaviour.

L's parents brought a disability discrimination claim against the school in the First Tier tribunal, citing unfavourable treatment including the fixed term exclusion. The tribunal decided that L was not protected from discrimination in relation to this exclusion because it sprang from L's tendency to physically abuse others.

The law

Under Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 (the Regulations), a tendency to physically or sexually abuse others is to be treated as not amounting to an impairment coming under the definition of disability with the Equality Act.

The effect of this Regulation is that children with certain conditions which give rise to a tendency to physically abuse others and who are, for example, excluded from school because of physical aggression, are not protected against disability discrimination which is related to that aggressive tendency.

The appeal

On appeal to the Upper Tribunal, Judge Rowley overturned this decision. She determined that the Regulations (only in their application to children under the age of 18 in the education context) contravene the European Convention on Human Rights. This was on the basis that the Regulations discriminate against children with particular conditions, such as autism and ADHD, in terms of their right to education.

Judge Rowley concluded that the Secretary of State had not carried out a proper balancing exercise of the impact of the Regulations on certain children with special educational needs against the impact on others such as other pupils and staff in a school. On carrying out that exercise herself, Judge...