The Government must act on legal ruling against discrimination of disabled children

With Jane Harris, Director of External Affairs at National Autistic Society

The Government must act on legal ruling against discrimination of disabled children

Last year we covered a landmark legal ruling that was supposed to mean thousands of children with disabilities would be properly protected from discrimination in schools. The Upper Tribunal's judgement found the government’s equality laws are unlawful.

It followed an appeal by the family of an autistic child who was excluded from school due to behaviour which was linked to his autism. The First-Tier Tribunal decided the exclusion was for behaviour, which meant he was not considered to be disabled for the purposes of protection under the Equality Act. The appeal against this ruled that Reg 4(1) of Equality Act was against human rights law and that schools should not be excluding children on the basis of a 'tendency' if their behaviour is related to their autism - this is discrimination.

However, campaigners say the Government has done nothing to clarify what this means for schools. Today, Jane Harris, Director of External Affairs at the National Autistic Society which supported the appeal, writes for SNJ about what the Government needs to do now to protect disabled children.

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The Government must act on landmark legal ruling by Jane Harris

Last year, a landmark legal ruling gave autistic and other disabled children better protection from discrimination at school. But a year on and schools are still waiting for Government guidance on what this means for them.  

The Upper Tribunal’s judgment made clear that schools must make sure they have made adjustments for autistic children – and children with other disabilities - before they resort to excluding them from school. But at the National Autistic Society, we are concerned that too many schools don’t know about this judgment and their responsibilities.

We have written to the new Education Secretary, Gavin Williamson, urging him to write to all schools in England to spell out exactly what the judgment means for teachers, headteachers, governors and schools’ policies and practices.

Background to the landmark discrimination ruling

The case was brought by the family of an autistic child who had been excluded from their primary school on the grounds of ‘tendency to physical abuse of others’. Our charity intervened to challenge a loophole in the Equality Act 2010 that allowed schools to exclude children who they believed had this ‘tendency’, even if their actions were directly related to their disability, and even if they had not received the necessary support for that disability.

What was the loophole?

This loophole was leading to autistic pupils being unfairly excluded and holding them back from making progress at school.

The judge recognised that an autistic child’s behaviour, rather than being wilful or naughty, can be a sign that their needs are not being met. Children on the autism spectrum can become extremely anxious or overwhelmed in the school environment, and as a result, they may try to run from the source of anxiety or lash out at people who are in their way. But, this is much less likely if the child has the right understanding and support in school.

Schools have a duty under the Equality Act 2010 to avoid discrimination against children with disabilities, including children on the autism spectrum. They have a duty to make ‘reasonable adjustments’ – which could be providing a quiet and safe place where an autistic pupil can go when they feel overwhelmed, or allowing autistic pupils to avoid crowded corridors when moving between lessons. This enables autistic children to learn, and reduces the risk of situations that might lead to them being excluded.

Autistic children and school exclusions

There are around 130,000 school-aged children on the autism spectrum in England. Official figures also show that these children are three times more likely to be excluded than children who have no special educational needs.

The judge in last year’s case was struck by the number of children potentially affected by the loophole in the law - and by the large number of families who seek help from our School Exclusions Service.

Our advisers respond to more than 1,400 enquiries a year. And, since the ruling, we’ve had a 40% increase in enquiries, with 60% of these additional enquiries relating to the ‘tendency to physical abuse’ issue. While parents seem to be widely aware of the ruling, it’s not clear that schools are similarly aware of their duties, which is alarming. This opens up the prospect of more legal challenges to schools and money being spent on defending these, rather than the right support being provided to autistic children in the first place.

What needs to happen

We are urging the Government to write to all schools clarifying what the law says, and emphasising schools’ duties to make necessary reasonable adjustments for children with disabilities, including autistic children.

In the absence of Government guidance, we would urge all head teachers to read the ruling and review their practices. Schools can get training on autism and education practice from the Autism Education Trust.

Exclusions can have a devastating and lifelong impact – and must only be used as a last resort when every other possible solution has been tried. It can mean children miss out on months - even years -of school, lose faith in themselves and become extremely isolated.  We owe it to every autistic child to make sure they get the understanding and support they need.

Jane Harris, Director of External Affairs at National Autistic Society

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A student’s view

Next week we’ll have the view of what it’s like to feel the subject of discrimination at school as an autistic young person - even when your behaviour is exemplary. Siena Castellon will be back to talk about why she’s opted for self-study for her final A-Level year.

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Tania Tirraoro

Founder, CEO at Special Needs Jungle
Founder of Special Needs Jungle. Parent of two young adults with autism. Tania is a member of the Whole School SEND Expert Reference Group for SEND Leadership, the Ofsted SEND Inspections Stakeholders Group, and sits on the Advisory Board of the Royal Holloway, University of London Centre of Gene and Cell Therapy.
She is also an experienced broadcast and print journalist & author. Tania also runs a PR, web & social media consultancy, SocialOro Media. She is a Rare Disease & chronic pain patient advocate with Ehlers Danlos syndrome.
Tania Tirraoro
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