DfE loses landmark legal challenge on exclusions of pupils with autism

Schools must prove it was “proportionate” to exclude an autistic pupil on the grounds of challenging behaviour, after the Department for Education lost a landmark legal challenge.

The upper tribunal, the court that deals with appeals against school exclusions, has ruled the government’s equality laws are unlawful and discriminate against pupils with autism and similar conditions, and described their impact as “repugnant”.

Schools must make “reasonable adjustments” to ensure disabled pupils get the right support. However, a “legal loophole” means they can exclude pupils who have a “tendency to physical abuse”, even if they have not made adjustments for their disability.

Until now, this meant that schools could exclude an autistic pupil for acting aggressively, without demonstrating that the decision to exclude them was proportionate, or that they had made the right adjustments to support the pupil or reduce challenging behaviour, even if their behaviour was a result of their autism.

The appeal was brought by the parents of a 13-year-old boy with special needs, known only as ‘L’, who was excluded due to behaviour linked to his autism. Lawyers acting for the family argued the system discriminated against children with conditions like autism that are more likely to result in challenging behaviour.

The appeal received support and funding from the National Autistic Society and the Equality and Human Rights Commission, but was opposed by education secretary Damian Hinds, who was an “interested party” in the appeal.

Judge Rowley, sitting in the upper tribunal, found the law 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”, and accepted that “aggressive behaviour is not a choice for children with autism”.

She said Hinds had “failed to justify maintaining in force a provision” which removes protection under the equality act from 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 effects 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.”

Polly Sweeney, human rights partner at Irwin Mitchell, who is representing the family in the case,  said the decision will not prevent schools from excluding pupils “where it is necessary and proportionate to do so.”

“However, it will ensure all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”

Figures released last month showed pupils with special needs accounted for around half of all permanent exclusions in 2016-17.

Jane Harris, director of external affairs at the National Autistic Society, described the ruling as “a landmark verdict which could transform the prospects of future generations of children on the autism spectrum, by helping them get the education they deserve.

“The government should recognise this decision and act immediately to make sure that autistic children are no longer unfairly excluded from school.”

A spokesperson for the DfE said it would be “carefully considering the judgement and its implications before deciding the next steps.”

She added: “The government is fully committed to protecting the rights of children with disabilities, as well as making sure schools are safe environments for all pupils.”

Melanie Field, executive director at the Equality and Human Rights Commission, said the ruling is “a positive step towards ensuring that everyone has the opportunity to reach their potential through education and increasing the inclusion of disabled children in mainstream education.”