SEN exclusions - still possible?

15 November 2018

In the wake of the recent ruling in the Upper Tribunal (Administrative Appeals Chamber) in C & C v Governing Body of a School and Others the government has been warned by the Equalities and Human Rights Commission that many children with Special Educational Needs (SEN) are being denied the opportunity to make the most of their education and that this runs counter to the UK’s commitment to achieve inclusive education under the UN Convention on the Rights of Persons with Disabilities.

The Equality Act 2010 (‘the Act’) contains a loophole in relation to disability discrimination whereby a school was able to exclude a child on the strength of their tendency to violent behaviour towards other children/staff, without the exclusion constituting disability discrimination and without the need to demonstrate reasonable adjustments. This by virtue of Regulation 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 which states that a ‘tendency to physical or sexual abuse of other persons’ does not amount to an ‘impairment’ for the purposes of the Act.

The recent case is a landmark development which changes this position. It is no longer possible to exclude a child in response to their violent behaviour which is connected to a condition, for example an Autistic Spectrum Condition (as in this case), without first demonstrating that any reasonable adjustments have been made and that the exclusion (or other sanction) is justified i.e. it is a proportionate means of achieving a legitimate aim.

This is a complex and technical concept. Essentially, in order to justify an exclusion of a violent child, where the behaviour is connected to a condition that could amount to a disability, the School would need to show that it has done everything it could reasonably be expected to do to avoid the exclusion.

The case does not prevent the School from ultimately excluding or requiring the parents to withdraw a child, but it does place a greater onus on the school to introduce measures and interventions and to explore suitable adjustments with the family and relevant professionals to deal with the situation, depending on the circumstances, before doing so. The decision provides clear incentive to schools to consider carefully whether an exclusion would be proportionate in all the circumstances.

By Ben Collingwood

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