In this issue we examine a crucial 2018 decision of the Upper Tribunal which concerned an 11 year-old boy who has autism whose parents appealed against his fixed period exclusion from school for what the school described as ‘aggressive behaviour’. The Upper Tribunal found that, in the context of education, the Equality Act 2010 (Disability) Regulations 2010, which remove Equality Act 2010 protections from disabled people who have ‘a tendency to physical abuse’, are incompatible with the European Convention on Human Rights.
This decision will be important for anyone advocating on behalf of disabled children whose behaviour within an education setting is judged to be abusive, and they are facing exclusion and/or other sanctions.
Upper Tribunal finds decision to exclude boy with autism from school incompatible with the European Convention on Human Rights
This case concerns L who has autism, anxiety and pathological demand avoidance. In 2016, when L was 11, he was excluded from school for a fixed period of a day and a half for ‘aggressive behaviour’. L’s parents appealed against the exclusion to the First-tier Tribunal (Special Educational Needs and Disability) claiming discrimination and breach by the school of its duties under the Equality Act 2010. The First-tier Tribunal found that while, generally speaking, L’s condition/s meant he met the definition of disability, it dismissed the discrimination claim because of regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 – which states that “a tendency to physical or sexual abuse of other persons” is not an impairment.
The First-tier Tribunal rejected L’s parents argument that regulation 4(1)(c) should be re-interpreted in light of prohibition of discrimination under the European Convention on Human Rights.
L’s parents then appealed to the Upper Tribunal (Administrative Appeals Chamber). The appeal was supported by the Equality and Human Rights Commission and the Secretary of State for Education and the National Autistic Society joined the proceedings as interested parties.
Paragraph 3 of the decision is very helpful for context:
“Evidence in this case suggests that some children with disabilities such as autism or attention deficit hyperactivity disorder (“ADHD”) may lash out at others around them in school. In the case of children with autism this may be simply because of difficulties arising from being in the school environment. Challenging behaviour or ‘meltdowns’ may be caused by the child being overwhelmed with frustration arising from an inability to express their wants and needs, a reaction to unexpected changes to fixed daily routines and/or sensory overload. The particular child may have no intention to hurt others and their aggressive behaviour may be intrinsic to their underlying disability. […] If they are excluded from school because of that behaviour, any claim against the school for discrimination arising out of a disability in relation to it would, under the current interpretation of the domestic law, [fail]. There would be no requirement for the school to explain why the exclusion was justified and proportionate or to address whether it had made reasonable adjustments which may have reduced the risk of the physically aggressive behaviour. The justification put forward is that the Equality Act should not provide protection for people where the effect of their condition involves ‘criminal or anti-social activity’ which has an impact on others, and decision-makers such as schools should not have to be called upon to justify the proportionality of their decisions”.
The matters before the Tribunal
The task before the Upper Tribunal was to determine two issues:
- Whether the First-tier Tribunal made an error of law when it concluded that L was not ‘disabled’ insofar as his ‘tendency to physical abuse’ was concerned.
- Whether the existing interpretation of regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 was compatible with the European Convention on Human Rights (ECHR) (specifically Article 14, prohibition of discrimination, read with Article 2 of the First Protocol, right to education).
The legal framework
- Primary legislation: Equality Act 2010
Section 4 of the Equality Act 2010 lists disability as one of nine protected characteristics and section 6(1) defines disability as: A person has a disability if — (a) a person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Section 15(1) of the Equality Act 2010 defines ‘discrimination arising from disability’: A person (A) discriminates against a disabled person (B) if — (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 20 of the Equality Act 2010 sets out and defines the ‘duty to make adjustments’. This duty comprises three requirements, each of which applies where a disabled person is placed at a substantial disadvantage in relation to a particular issue in comparison with non-disabled people. The requirements are: 1. Taking reasonable steps to change practice, rules or conditions. This requirement includes providing information in an accessible format. 2. Making changes to buildings (such as providing access), including removing and altering parts of buildings, where such changes are considered reasonable. 3. Providing auxiliary aids and services (such as computer software), which includes providing information in an accessible format. Failure to comply with the duty to make adjustments amounts to discrimination (section 21(2) of the Equality Act 2010). Chapter 1 of Part 6 of the Equality Act 2010 concerns schools. L’s parents appealed against his exclusion based on section 85, which states: The responsible body of … a school must not discriminate against a pupil (a) in the way it provides education for the pupil; (b) in the way it affords the pupil access to a benefit, facility or service; (c) by not providing education for the pupil; (d) by not affording the pupil access to a benefit, facility or service; (e) by excluding the pupil from the school; (f) by subjecting the pupil to any other detriment.
Schedule 13 contains additional provisions about the duty to make adjustments within education settings, but excluding a student is not contained within these provisions.
Importantly, a claim of discrimination can still be made if the unfavourable treatment of a disabled person was not a proportionate means of achieving a legitimate aim and a failure to comply with the duty to make reasonable adjustments can be used in these circumstances to strengthen the argument about discrimination. This has been confirmed in UK case law (see  UKUT 217 (AAC) (04 April 2015)).
- Secondary/subordinate legislation: the Equality Act 2010 (Disability) Regulations 2010
The Equality Act 2010 (Disability) Regulations 2010 supplement the specific provisions of the Equality Act 2010 which protect disabled people from discrimination. The Regulations “support the definition of disability in the Act by helping to define who is, and who is not, a disabled person for the purposes of gaining the protection of the Act” (see para 2 of the explanatory memorandum).
Regulation 4(1) contains a list of exclusions - ‘Other conditions not to be treated as impairments’ – for the purpose of defining the protected characteristic of disability. It says: For the purposes of the (Equality) Act the following conditions are to be treated as not amounting to impairments: — (a) a tendency to set fires, (b) a tendency to steal, (c) a tendency to physical or sexual abuse of other persons, (d) exhibitionism, and (e) voyeurism.
Human rights duties – European Convention on Human Rights (ECHR) / Human Rights Act 1998
The right to education Article 2 of the First Protocol ECHR protects the right to education: “No person shall be denied the right to education. […]”. Protection from discrimination Article 14 ECHR prohibits discrimination in the context of all the other rights and freedoms protected by in Convention: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 14 is not ‘freestanding’ in that it must be attached to another Convention right to function. In other words, prohibition of discrimination enshrined in Article 14 ECHR applies only in the context of individual rights and freedoms within the Convention. In L’s circumstances, prohibition of discrimination was considered in conjunction with Article 2 of the First Protocol, the right to education. To determine if Article 14 ECHR applies in a given situation, a series of questions has to be answered. These questions were defined in a landmark Supreme Court judgment, Mathieson v Secretary of State for Work and Pensions  UKSC 47. They are: 1. Is the issue within the scope or ambit of another Convention right? 2. Does the person have a relevant ‘status’? 3. Is there differential treatment? 4. Can the differential treatment be justified? (The Tribunals consideration of these questions is summarised lower down, in the ‘decision’ portion of the legal digest). Duties on public authorities Section 3(1) of the Human Rights Act 1998 requires that, so far as possible, all domestic legislation – both primary and secondary – be interpreted and implemented in a way which is compatible with the Convention rights. Section 6(1) places a duty on UK public authorities, including courts and tribunals, to act compatibly with the Convention rights.
The Upper Tribunal’s decision
The Tribunal considered the four questions defined in Mathieson v Secretary of State for Work and Pensions to determine if Article 14 ECHR applied in L’s circumstances:
1. Is the issue within the scope or ambit of another Convention right? The answer was yes. L’s exclusion from school fell within the scope of Article 2 of the First Protocol, the right to education.
2. Does L’s have a relevant ‘status’? The Tribunal confirmed that L’s status, namely ‘a child with a recognised condition that is more likely to result in a tendency to physical abuse’ fell within ‘other status’ within Article 14 ECHR.
3. Is there differential treatment of L? The Tribunal compared two groups – children with a recognised condition which is more likely to result in a tendency to physical abuse (such as L) and other disabled children whose condition or impairment does not give rise to an enhanced tendency to physical abuse. The Tribunal agreed with L’s lawyer that the experiences of these two groups were analogous and could be compared.
4. Can the differential treatment of L be justified? The Tribunal judge said:
“It is well established that a difference in treatment is discriminatory if it has no objective and reasonable justification. It is equally well established that the onus is on the Secretary of State to justify the differential treatment”. (Paragraph 38)
The Secretary of State for Education submitted that the exclusion of ‘tendency to physical abuse’ from the protections granted by the Equality Act 2010 was justified in order to avoid protecting people in situations where the effect of their condition involves ‘anti-social or criminal activity’ which harms others. Within a school setting, it was argued on the Secretary of State’s behalf that such an approach strikes the right balance between the rights of children like L on the one hand, and those of the wider community (students and staff) on the other.
Having examined all material, the Tribunal disagreed:
“…there is nothing … to suggest …that there has been a proper evaluation of the competing interests or that the appropriate scrutiny has been given …. It is accepted, for example, that there has been no proper consultation, there has been no scrutiny or endorsement by Parliament on the issue relating to the fair balance, there was no impact assessment of the Regulations when they were passed…”. (Paragraph 74)
The Tribunal also considered evidence presented by L’s lawyers and by the National Autistic Society relating to the impact of regulation 4(1)(c) on children like L, including difficulties finding a school place and missing out on education for long periods.
The Tribunal acknowledged that:
“… a particularly weighty factor to be put in the balance is that aggressive behaviour is not a choice for autistic children…It is not ‘bad’ or ‘naughty’ behaviour and should not be considered as such. Rather, such challenging behaviour is increasingly being described as ‘distressed behaviour’”. (Paragraph 81).
The Secretary of State for Education stated that children in L’s position had various safeguards and means of redress. Options suggested included making a representation to the school’s governing body, seeking a review of an exclusion from an Independent Review Panel (under section 51A of the Education Act 2002 and the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012) or making a claim for judicial review. The Tribunal dismissed all as insufficient to reduce the very serious impact on children like L.
The Tribunal judge said:
“I am firmly of the view that regulation 4(1)(c) 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. The profound severity of the consequences of the measure on [this group of children] weigh extremely heavily and the arguments put in favour of the countervailing public interest by no means counterbalance them”. (Paragraph 89)
“…in the context of human rights law …, 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”. (Paragraph 90)
The Upper Tribunal concluded that, in the context of education, regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 violates the ECHR right of children whose recognised condition is more likely to result in a ‘tendency to physical abuse’ not to be discriminated against under Article 14 ECHR – prohibition of discrimination – read in conjunction with Article 2 of the First Protocol (A2P1) – right to education.
The Upper Tribunal concluded that when read and given effect in a way which is compatible with the European Convention on Human Rights, regulation 4(1)(c) of the 2010 Equality Act Regulations does not apply to children in education who have a recognised condition (such as autism) that is more likely to result in a ‘tendency to physical abuse’.
The Upper Tribunal concluded that when the First-Tier Tribunal decided that L ‘fell within’ the exclusions listed in regulation 4(1)(c), meaning he was not treated as a person with a protected characteristic of disability, it made an error in law. The Upper Tribunal therefore set aside the decision of the First-tier Tribunal.
You can read the full decision here: C & C v The Governing Body of a School, The Secretary of State for Education (First Interested Party) and The National Autistic Society (Second Interested Party) (SEN) (Disability discrimination in schools)  UKUT 269 (AAC) (8 August 2018)