A three-judge Upper Tribunal panel X v GB of a school has considered the exclusion of a tendency to physical abuse from the definition of disability under the Equality Act 2010.

The child, S, was given six fixed term exclusions of up to four days because of incidents when S was violent to other children. She brought a disability discrimination claim in the First-tier Tribunal, including a claim that the fixed term exclusions constituted discrimination arising from her disability. Her claim was unsuccessful. The Tribunal found that she was a disabled (by reason of autism) and that she had a tendency to physically abuse others that was a result of her autism. Regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 provides that a tendency to physical abuse of other persons is to be treated as not amounting to an impairment for the purpose of the Equality Act 2010. The Tribunal concluded that it followed that she had not been treated less favourably because of something arising in consequence of her disability.

S appealed to the Upper Tribunal. The UT found that regulation 4(1) applied to children as well as to adults. It went on to agree with the approach of Lloyd Jones J in Governing Body of X Endowed Primary  School v SENDIST  [2009] EWHC 1842 (Admin) (and of the EAT in Edmund Nuttall Ltd v Butterfield [2006] ICR 77) that “having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment.” It follows that a school will not breach section 15 of the Equality Act 2010 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 (such as, in this case, an autistic spectrum disorder).

Note that the guidance at [114-121] on what a “tendency to physical abuse” means suggests a higher threshold than merely physical violence. This is worth reading in full, but the UT found that there must always be an element of violent conduct (but that this alone is not sufficient), there is no requirement for knowledge on the part of the perpetrator that what they are doing is wrong, the existence of some sort of misuse of power or coercion makes it more likely that the test is met, the stage of a child’s development is relevant, and it is not necessary for the tendency to physical abuse to manifest itself regularly or frequently. The UT’s concluding summary was that “a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has  found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above. In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school. However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.””

Applying its conclusions on the law to the facts of S’s case, the UT found that the First-tier Tribunal had erred in law in failing to make sufficiently specific findings of fact about any tendency to physical abuse. The UT concluded that S’s behaviour manifested a condition of a tendency to physical abuse of other persons. Therefore S’s appeal did not succeed.

Clive Sheldon QC and James Cornwell of 11KBW represented the Governing Body.

Rachel Kamm 

The Government has published new statutory guidance: Exclusion from maintained schools, academies and pupil referral units in England. It applies to exclusions that occur after 5 January 2015, replacing the previous 2012 guidance.

One reason for the amended guidance is that there has been a change to the regulations governing exclusions. The Education (Provision of Full-Time Education for Excluded Pupils) (England) (Amendment) Regulations 2014 were laid before Parliament on 5 December 2014 and came into force on 5 January 2015. The explanatory note explains that  these regulations amend the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 so  that consecutive periods of exclusion are considered as one continuous period for the purposes of making arrangements for the provision of suitable full-time education for a pupil of compulsory school age who is excluded for a fixed period on disciplinary grounds.

The statutory guidance summarises the other main points as follows:

• Statutory guidance has been updated in a small number of areas, in particular to provide greater confidence to headteachers on their use of exclusion and greater clarity to independent review panels and governing bodies on their consideration of exclusion decisions.
• Good discipline in schools is essential to ensure that all pupils can benefit from the opportunities provided by education. The government supports the decisions of headteachers and they should be confident in using exclusion where they consider it to be a lawful, reasonable and fair action.
• In considering whether to exclude a pupil, headteachers should weigh up the seriousness, or persistence, of the pupil’s behaviour, together with the impact of not excluding the pupil on the school as a whole and the integrity of its behaviour policy. Whilst every effort should be made to identify pupils at risk of exclusion, and to put in place strategies to address problematic behaviour, adopting a blanket approach of never excluding pupils may undermine the school’s ability to maintain discipline.
• Where a school has concerns about a pupil’s behaviour it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion. In this situation schools should consider requesting a multi-agency assessment that goes beyond the pupil’s educational needs. They should also consider whether alternative provision would help improve the pupil’s behaviour.
• Schools must not discriminate against pupils on the basis of protected characteristics, such as gender, sexual orientation, disability or race. All pupils must be treated fairly and lawfully.
• All children have a right to an education. Schools should take reasonable steps to set and mark work for pupils during the first five school days of an exclusion, and alternative provision must be arranged from the sixth day. There are benefits in arranging alternative provision to begin as soon as possible after an exclusion. Schools should have a strategy for reintegrating pupils that return to school following a fixed period exclusion, and for managing their future behaviour.
• Where parents (or the excluded pupil, if aged 18 or over) dispute the decision not to reinstate a permanently excluded pupil, they can ask for it to be reviewed by an independent review panel. Where there is an allegation of discrimination (under the Equality Act 2010) in relation to a fixed-period or permanent exclusion, parents can also make a claim to the First-tier Tribunal (for disability discrimination) or  a County Court (for other forms of discrimination).
• Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.

One of the changes in the new statutory guidance is to the test for an exclusion. First,the reference in the 2012 guidance to exclusion being a last resort has vanished. Secondly, the key paragraph in the guidance for Headteachers on the minimum conditions for exclusion has been amended. The 2012 guidance included the following:

“A decision to exclude a pupil permanently should only be taken:

• in response to a serious breach, or persistent breaches, of the school’s behaviour policy; and
• where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.“

The equivalent paragraph in the new 2015 guidance s as follows:

“It is for the headteacher to decide whether a child’s behaviour warrants permanent exclusion, though this is a serious decision and should be reserved for:

• a serious breach, or persistent breaches, of the school’s behaviour policy; or
• where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.“

There are two changes here. In 2012, the two conditions both had to be satisfied, whereas in the 2015 guidance it is sufficient for just one condition to be met (subject to compliance with the other paragraphs in the guidance). Further, the second condition is now the lower threshold of detriment, instead of serious harm, to the education/welfare of the pupil of others in the school.

The Guardian  and the Telegraph report that Just for Kids Law is preparing to issue judicial review proceedings to challenge the failure to consult on the new statutory guidance and that the new guidance has a lower threshold for exclusion.

Rachel Kamm, 11KBW Chambers