New rules about school exclusions

Following the ruling of the Upper Tribunal in August, schools will have to make sure they have made appropriate adjustments for autistic children, or those with other disabilities, before they can resort to exclusion. The case highlighted the need for better understanding of autism and wider reaching autism training for education professionals and practitioners. Previously, a loophole in the Equality Act meant that schools didn’t have to make reasonable adjustments for disabled children when they have a ’tendency to physical abuse’ – even when that behaviour is down to a lack of appropriate support. The judge found that this “violates the [European Convention on Human Rights] right of children with a recognised condition that is more likely to result in a ‘tendency to physical abuse’ not to be discriminated against.” This means that children cannot be excluded for behaviour that is linked to their autism, if no steps had been taken to put the right support in place.

The Autism Education Trust’s training programmes and resources are designed to help all education settings 0-25 support their autistic pupils, prepare for the consequences of this ruling and meet their wider responsibilities.

The case

The case, which was funded by the Equality and Human Rights Commission, centred on the fact that children with disabilities that mean they have “a tendency to physically abuse” are not protected by the Equality Act 2010. This means that children like 13 year old L (who cannot be named for legal reasons) are not treated as “disabled” in relation to their physically aggressive behaviour and so cannot challenge decisions to exclude them from school.

Judge Rowley, who examined whether this rule was in breach of L and other children’s human rights, found that this rule 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 said that “aggressive behaviour is not a choice for children with autism”.

“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.”

For more information about AET’s programmes please click here. For more information and support about exclusions please click here.