Education Update February 2015

Discrimination – tendency to physical abuse

In the recent case of X v GB of a School [2015] UKUT 0007 (AAC), the Upper Tribunal considered the appeal of an autistic student (S) following her exclusion based on a tendency to physical abuse. The student had had six fixed term exclusions due to incidents where she was violent to other children and staff.

Parents brought a disability discrimination claim in the First-tier Tribunal that was unsuccessful. The Tribunal found that whilst her autism was a disability, and that her tendency to physically abuse others arose from her autism, the exemption at regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 applied. The exemption provides that a tendency to physical abuse of other persons is not to be treated as an impairment for the purpose of the Equality Act 2010, and therefore she had not been treated less favourably because of her disability.

Case law in this area has mainly arisen from exclusions with courts looking closely at the facts to try to establish the 'real' reason for the exclusion, and then that the behaviour amounted to a tendency to physical abuse. Where the exemption applies, there is no duty to make reasonable adjustments to prevent the tendency, something which has not found favour in all Tribunal decisions. For example one case noted "it appears to have the effect that a school could avoid the need to provide reasonable adjustments for a child with say dyslexia or attachment disorder, known to cause frustration and likely loss of self-control knowing this would avoid discrimination claims. That appears to defeat an important objective of the legislation."

The parents appeal was dismissed. Considered meaning of 'tendency to physical abuse' and whether this went beyond 'violence'. Some key findings were:

• A 'tendency to physical abuse' would be considered in all the particular circumstances, as ordinary terms. 
• There must always be an element of violent conduct, but that on its own may not necessarily be sufficient to meet the definition. The greater the level of violence the more easily it fits the definition. 
• It is not necessary for a tendency to be manifested frequently or regularly, and in some circumstances a tendency may be revealed in a one-off incident so long as there is evidence of a tendency to physical abuse in the form of, say, medical evidence. 
• The regulation is less concerned with whether a particular incident itself constitutes actual abuse, rather whether it is indicative of a tendency to abuse.

In this case, the Tribunal into took account that the child was 6 at the time, and that there was no power abuse or coercion, and therefore a finding of physical abuse would require careful justification. Whilst it was accepted that the behaviours were likely to have been triggered by particular stresses, the conduct constituted evidence of a tendency to physically abuse other persons.

The significant factors were the repeated use of relatively serious violence against other people on a number of occasions. It was found that the degree of sustained violence significantly outweighed the other factors.

Importantly, even though the tendency arose as a consequence of S's autism, the exemption in regulation 4(1) applied, and so in respect of the behaviour for which S received the exclusions, S was not to be treated as having an impairment under the Equality Act.

From this, it appears schools will not breach the Equality Act if they treat a child less favourably because of the child’s tendency to physical abuse of others, even if that tendency arises as a result of a disability.

Updated academy / free school complaints guidance

The DFE have released new guidance for academies and free schools, designed to ensure complaints procedures are compliant:

https://www.gov.uk/government/publications/setting-up-an-academies-complaints-procedure

Exclusions guidance has been withdrawn

As anticipated in our last update, the DfE exclusions guidance that had come into force on 5 January 2015 has been withdrawn. The DfE have explained that "The School Reform Minister Nick Gibb has removed the current guidance to address some issues with process and we will be issuing updated guidance in due course." Independent review panels, schools and local authorities should therefore have regard to the 2012 guidance until further guidance is issued.

Special Educational Needs and Disability (Detained Persons) Regulations 2015 (SI 2015/62) - in force 1 April 2015

These are new SEN regulations (and an Explanatory Memorandum) requiring local authorities to facilitate the development of detained children under the age of 19 with SEN, to help them to achieve their best outcomes.

The regulations require local authorities to work together with other bodies to assess the education, health and care needs of children and young people with SEN, to develop EHC Plans where necessary, and set out the roles, responsibilities and required timeframes for local authorities and other responsible bodies. In particular, they require authorities to work with bodies such as Youth Offender Teams, NHS England, and the person in charge of relevant youth accommodation, to assess the needs of detained children and young people who have SEN. Where necessary, those needs must be met continuously in custody and on release. DfE says that this is a new entitlement for detained children and young people, who previously had to wait until they were released for any SEN, identified during their detention, to be addressed.