Landmark ruling finds equality regulations to be in breach of human rights

An appeal to the Upper Tribunal has found that it was unlawful for a 13 year old boy with autism to be excluded from school.

This case could have significant repercussions for pupils with disabilities and for schools. The parents of L, a 13 year old boy with autism, challenged his exclusion from school for challenging behaviour due to him having a 'tendency to physically abuse'. This loophole in the law has meant that some pupils with disabilities have been excluded because they were not treated as 'disabled' in relation to their physically agressive behaviour. The boy's lawyers argued that this exemption discriminated against pupils with disabilities such as autism which are more likely to result in challenging behaviour, particularly if their needs are not being met.

The judge in the case said  that "aggressive behaviour is not a choice for children with autism" and that "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."

This will not mean that schools are no longer able to exclude pupils with SEND when it is necesary and proportionate to do so; however, they will have to be very confident that they have made the required reasonable adjustments to meet their needs. This may mean that some schools need to re-think their behaviour policy and the support that is made available for pupils with SEND.

The ruling is timely, given the current review into exclusions being carried out by Edward Timpson for the DfE, which is due to report in December.

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