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Greater protection for children with disabilities

Thousands of children with disabilities will now have more legal protection against schools excluding them. This follows a landmark case involving the parents of a teenager with autism. Solicitor Polly Sweeney: the decision will give disabled children the “same safeguards, protections and rights” as other pupils.

The case focused on preventing schools excluding pupils over challenging behaviour linked to their condition.

Legal protection from discrimination The Upper Tribunal in London found the UK government‘s equality regulations were in breach of human rights laws. The decision means that thousands of children with disabilities will now have legal protection from schools discriminating against them.

Statistics show that, in fact, children with special educational needs account for almost half of all exclusions in schools. Behaviour relating to autism: the parents of a 13-year-old boy with special educational needs, known as ‘L’, brought the appeal. His school had excluded him because of behaviour relating to his autism. The unlawful equality regulations had categorised L’s behaviour as ‘a tendency to physically abuse’. The same definition applied to other children with similar conditions. This categorisation applied even when the behaviour itself was a direct result of the child’s condition.

It meant that the law did not treat children such as L as ‘disabled’ in relation to their physically aggressive behaviour. It left them 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. They worked with specialist barrister Steve Broach, from Monckton Chambers.

Regulations ‘discriminated against disabled children’: the team argued that the regulations discriminated against disabled children with conditions such as autism that were more likely to result in challenging behaviour. Until the new court ruling, schools did not need to justify that a decision to exclude disabled children in these circumstances was proportionate.

Judge Alison Rowley found that the regulations 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 recognised that “aggressive behaviour is not a choice for children with autism”.

‘Repugnant’ to define behaviour as criminal or anti-social, she said: “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, Human Rights Partner at Irwin Mitchell, represented the family. She said: “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.”

18 Sep 2018
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