DfE court loss gives SEND pupils exclusion protection

Campaigners herald test case that 'could transform' rights for children on the autism spectrum

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Thousands of pupils with disabilities have been given extra protection from exclusion from school, after a landmark ruling found that government equality laws are unlawful.

Schools’ right to exclude pupils over behaviour linked to their disability was challenged in the courts by the parents of a 13-year-old boy known as ‘L’ who was excluded from school owing to behaviour linked to his autism.

Lawyers for the parents and for the National Autistic Society challenged a loophole in the Equality Act, which meant that schools did not have to make reasonable adjustments for disabled children when they have “a tendency to physically abuse”.

Lawyers from Irwin Mitchell, which represented the family at an Upper Tribunal hearing, argued that this exemption discriminated against disabled children with conditions such as autism that were more likely to result in challenging behaviour.

It 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.

Judge Rowley, sitting in the Upper Tribunal, said that “aggressive behaviour is not a choice for children with autism” and added: “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, a partner at Irwin Mitchell, 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.” 

Children with special educational needs are four times as likely to be excluded than other pupils and earlier this year the government has launched a review into exclusions.

L’s parents added: "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.”

Melanie Field, executive director at the Equality and Human Rights Commission, said: “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.”

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.”

A Department for Education spokesperson said: "The government is fully committed to protecting the rights of children with disabilities, as well as making sure schools are safe environments for all pupils. We will be carefully considering the judgment and its implications before deciding the next steps.”

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