A tendency to physical abuse: Upper Tribunal clarifies scope of Equality Act in education context

This article was first published on UK Human Rights Blog, on 26th November 2018.

The Upper Tribunal decision in of C&C v Governing Body [2018] UKUT 269 (AAC) has provided important clarification to the scope of the Equality Act 2010 in an education context.

A 13-year-old boy, L, was excluded for physical violence at school. L suffered from autism, anxiety and Pathological Demand Avoidance; it was common ground that the episodes of violence were as a result of these conditions.

It was also common ground that, but for the effect of Reg. 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (‘the 2010 Regulations’), L would meet the definition of having a ‘disability’ found at section 6 of the Equality Act 2010 (‘EA 2010’), as he had physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

But section 6 of the EA 2010 must be read in conjunction with the 2010 Regulations. The effect of Reg.4(1)(c) of the 2010 Regulations is to carve out from the definition of ‘disability’ those ‘impairments’ which manifest themselves in:

(a) a tendency to set fires,

(b) a tendency to steal,

(c) a tendency to physical or sexual abuse of other persons,

(d) exhibitionism, and

(e) voyeurism.

In C&C the school argued that L’s violent behaviour amounted to ‘a tendency to physical…abuse of other persons’ for the purposes of the 2010 Regulations, thereby removing the protection from discrimination that he would otherwise be afforded by the EA 2010.

The Law

Previous cases had decided that behaviour which amounted to a ‘tendency to physical…abuse’ was not protected under the Equality Act 2010 in the case of children with behavioural difficulties.

However, C&C reversed this line of authority.

The First Tier Tribunal had found, in line with the established case law, that L did not fulfil the definition of ‘disability’ under section 6 EA 2010 by virtue of the operation of Reg. 4(1)(c).

On appeal, Tribunal Judge Rowley was tasked with deciding whether the current interpretation of Reg. 4(1)(c) of the 2010 Regulations was compatible with Article 14 read with Article 2 of Protocol 1 (A2P1).

C&C: The Upper Tribunal Decision

The Upper Tribunal found that an appropriate comparator group for the purposes of Article 14 was disabled children whose condition or impairment does not give rise to a tendency to physical abuse.

Having decided this, the Judge found that there was a clear difference in treatment between the two groups, due to the comparator group having the benefit of protection under the EA 2010, whereas children like L did not.

The question then became one purely of justification: i.e. did the difference in treatment have an objective and reasonable justification? The Upper Tribunal concluded with great force that:

89. It is for me to weigh all of the above factors in determining whether a fair balance has been struck between the competing rights and interests. I am firmly of the view that regulation 4(1)(c) comes 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. The profound severity of the consequences of the measure on the status group weigh extremely heavily and the arguments put in favour of the countervailing public interest by no means counterbalance them. Indeed, in my judgment, this is not a case in which the issues are finely poised. Rather, the requirements for the protection of the status group’s fundamental rights comprehensively outweigh the arguments put forward for the protection of the interests of others.

 Judge Rowley, in an even more strident tone, found it,

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.

As a result of that finding it was inevitable that

in the context of education, regulation 4(1)(c) of the 2010 Regulations violates the Convention right of children with a recognised condition that is more likely to result in a ‘tendency to physical abuse’ not to be discriminated against under Article 14 read in conjunction with A2P1.

The Upper Tribunal concluded that it was possible to read down Reg.4(1)(c) under s.3 of the HRA 1998, or to disapply Reg.4(1)(c). The effect this was that the Tribunal found that L met the definition of a disabled person for the purposes of s.6 of the EA 2010.

Looking Forwards

It will now no longer be possible to reject these types of claim on the basis that the definition of disability is not met for children who display violent outbursts as a result of their condition. The ambit of the decision is limited to children in school but it surely opens the door to cases which fall within any of the other exclusions in Reg.4(1)(c).

The way in which these types of case must now be defended is by the school making out a justification argument i.e. that the decision taken was proportionate to a legitimate aim (sections 15(1)(b) and 19(2)(d) EA 2010).

The battleground going forwards is likely to be the proportionality of the decision which will require consideration of the reasonable adjustments made in the run up to an exclusion.  In C&C the Upper Tribunal emphasised that:

78. […] So long as the school could show that the exclusion of a pupil who had been violent as a result of his/her disability was a proportionate response, taking into account the legitimate aim of protecting the needs, well-being and interests of the other pupils and staff, and any reasonable adjustments that have been made, the exclusion would in all likelihood be a lawful one. The emphasis is on ‘reasonable’ adjustments. There is no need to show that all possible adjustments have been made, irrespective of cost or practicalities. Further, naturally, the more serious the behaviour the easier it would be to justify the exclusion under the terms of the Equality Act.

 Unfortunately there is little useful guidance that can be provided on what will and what will not be considered reasonable as this will vary infinitely from case to case and is acutely fact sensitive. It is suggested that the following questions ought to be asked by the school prior to any exclusion of this nature:

• Have all relevant external agencies (Educational Psychologist, Occupational Therapist, Local Authority) been contacted to assist with or recommend de-escalation strategies for the child involved (such as having a ‘safe space’, access to fiddle toys or snacks, having access to a lunchtime or classroom teaching assistant, emotion coaching, or having the opportunity to speak at any time to a designated adult with whom she has a bond)?
• Have less drastic measures been explored (fixed term exclusions, time outs, flexible schooling, flexible timetable, a managed move etc.)?
• Have relevant reasonable adjustments been made to the Behaviour and/or Exclusion Policies? For example, have the child’s ‘triggers’ been assessed and catered for in tailoring the disciplinary procedures to mitigate the likelihood of a behavioural crisis? Has the Exclusion Policy itself been adjusted to take account of the child’s behavioural difficulties?
• Has the SEN Policy been followed? Regardless of whether a child has formally diagnosed SEN it is always prudent to follow the policy where it is recognised that the child has a condition (for example, an Attachment Disorder) which calls for reasonable adjustments.
• Is there an Education and Health Care Plan in place (and has it been fully complied with) or is it appropriate to apply for one (which, if successful, would provide more funding)?
• Has there been constructive and open dialogue with the parents about any previous incidents and their experience of the best way to manage the child when in crisis?
• If new measures have been implemented recently, has there been enough time for these strategies to ‘bed-in’ and actually make a difference to the child’s behaviour?
• Is there an explanation for the deterioration of a child’s behaviour that needs to be taken into account?
• What exactly is the risk of harm to other pupils and staff and have methods to alleviate that risk been explored?
• Has the impact on the child herself been considered in detail? Often the effects of an exclusion are all the more devastating to a child suffering with autism or other similar conditions.
• Although not an exhaustive list, the above should provide schools and Governing Bodies with some guidance about the thought process that needs to be undertaken when taking these tough decisions. Importantly, however, the school does not need to make “all possible adjustments…irrespective of cost or practicalities”; reasonableness is enough.

By Katie Ayres