The right of schools to exclude autistic pupils who exhibit bad or aggressive behaviour faces a legal challenge this week, on the grounds that it is discriminatory.
The upper tribunal, the court that deals with appeals against school exclusions, is expected to hear the case of a 13-year-old boy with special needs who was expelled from school. His parents claim his behaviour is linked to his autism, and want the decision overturned.
If upheld, the appeal is expected to have wide-ranging repercussions for schools.
According to equalities law, schools must make “reasonable adjustments” to ensure disabled students get the right support.
However, a “legal loophole” means schools can exclude pupils who have a “tendency to physical abuse”, even if they have not made adjustments for their disability.
This means if an autistic pupil acts aggressively, schools do not have to show the decision to exclude was proportionate, or that they have made the right adjustments to support the pupil to prevent or reduce challenging behaviour, even if that behaviour was a result of their autism.
However, the right of schools to do this is being challenged in court this week. Lawyers acting for the boy’s parents argue the current system discriminates against disabled children with conditions like autism which are more likely to result in challenging behaviour.
The appeal is supported by the National Autistic Society, which warned that autistic children are three times more likely to be excluded than children who do not have special needs, but is opposed by the education secretary Damian Hinds, who is an “interested party” in the appeal.
Tim Nicholls, policy manager at the NAS, said the appeal was being brought because autistic children “can essentially end up being excluded when that’s not the fairest solution” because of a lack of specialist support.
“We need to make sure the child has enough support from people who understand autism and can communicate slightly differently and recognise what might trigger anxious responses to something and work out how to avoid them.”
The NAS is also concerned about the “constraints on funding for SEND support”.
“As well as needing support from a staff member who understands SEND, you also need to have that staff member. If one to one support in the classroom isn’t available, and other services aren’t available, then that’s really concerning,” said Nicholls.
“If this appeal goes forward there will need to be some changing of the law to tackle this, and we would hope the government will make sure the system is properly resourced to meet all those needs.”
Mark Lever, chief executive of the NAS, warned schools resort too quickly to exclusion, which can have a “devastating impact” on autistic children.
Noisy classrooms, unclear instructions and a lack of time to process information can leave some children overwhelmed and lead to behaviour which can be “perceived incorrectly by others as naughty or disruptive”, he said.
“It’s important that schools are encouraged to understand and support their autistic pupils, rather than resorting too quickly to exclusion,” he said.
Polly Sweeney, human rights partner at Irwin Mitchell, who is representing the family in the case, said the appeal is “about the fundamental right of access to education for disabled children whose conditions, like autism, result in behaviours which can be physically aggressive”.
“This finding would not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it would ensure that all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”
A spokesperson for the DfE said it would be inappropriate to comment on the case while it is ongoing, but reiterated that schools “have a legal duty not to discriminate against disabled pupils”.