Exclusion of an autistic pupil illegal

The Upper Tribunal has determined that schools can no longer rely upon an exemption under The Equality Act 2010 (Disability) Regulations 2010 (‘the Regulations’) to exclude disabled pupils with challenging behaviour which include a ‘tendency to physical abuse of other persons’. Disability is a protected characteristic under the Equality Act 2010. Schools must ensure that their policies and procedures do not discriminate against those pupils with disabilities, including in the application of their behaviour policy. They must also make reasonable adjustments to support pupils in managing their disabilities in school.

The case involved a pupil referred to as ‘L’ who had been diagnosed with autism, pathological demand avoidance and who suffered from anxiety. After an incident in February 2016 in which the pupil punched a teaching assistant, hit her with a ruler and pulled her hair, the headteacher proceeded to exclude the pupil for one and a half days. This decision was challenged in the First-tier Tribunal, with the determination being that the school had not discriminated against the pupil in view of the exemption under Reg. 4(1)(c) of the Regulations which states that when an impairment involves a tendency to physical abuse of another person it will not come within the protected characteristic of disability under the Equality Act 2010. 

The matter was appealed to the Upper Tribunal with the Secretary of State for Education intervening, alongside the Equality and Human Rights Commission and National Autistic Society. The Upper Tribunal determined that the exemption could not be relied upon by schools excluding pupils with disabilities. Considering the regulation against section 3 of the Human Rights Act 1998 the judge determined that it did not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse. The judge went further to comment that, ‘aggressive behaviour is not a choice for children with autism.’

To be clear, the decision does not prevent schools from excluding pupils who have a disability or special educational need, particularly when the impairment is associated with physical violence. The judgment requires schools to ensure that any decision to exclude a disabled pupil is only taken as a last resort, applying polices and following procedures which do not discriminate against them, whether directly or indirectly, and only once all reasonable adjustments have been considered in order to manage the behaviour arising out of the disability. Governors and trustees must consider whether the headteacher’s decision has complied with the schools duties under the Equality Act 2010 when undertaking their review.