Excluding children with a tendency towards physical abuse and the EA 2010
Catherine Casserley
Catherine Casserley discusses C & C v the Governing Body of a School, The Secretary of State for Education (First Interested Part) and the National Autistic Society (Second Interested Party) (SEN) [2018] UKUT 269, a judgment of the Upper Tribunal in which it was held that the exclusion of those with a tendency to physical abuse from the definition of disability in the Equality Act 2010, insofar as it applied to children whose condition resulted in such a tendency (for example, those with Autistic Spectrum Disorder) should be dis-applied as being contrary to the Human Rights Act 1998.
Background
As those practising in disability discrimination law will be aware, there are a number of exclusions from the definition of disability, contained in the Equality Act (Disability) Regulations 2010/2128 (“the Regulations”). These in effect replicate previous regulations under the Disability Discrimination Act 1995 and at Regulation 4 (“the Regulation”) exclude from the protection of the Equality Act 2010 those with a tendency towards physical abuse of other persons. It is clear that this exclusion was not limited to a freestanding condition, but also applies to anything arising from an impairment which would otherwise fall within the definition (see, for example, in the context of education C v the Governing Body of I School [2015] UKUT 0217 AAC).The exclusion regarding physical abuse has come to be applied most commonly in school education cases, particularly involving children with Autistic Spectrum Disorder (“ASD”) who have been excluded from school as a result of a violent incident, such as hitting out at a teacher as a result of their autism. Whilst reasonable adjustments claims might succeed for conduct in the run up to any exclusion i.e. that adjustments should be made to prevent such an incident occurring nevertheless such claims could not succeed in respect of the exclusion itself, and thus the Regulation left a child excluded as a result of aggressive conduct without a remedy under the Equality Act 2010 in respect of that exclusion.
In this case, L, the appellant (by his mother) has autism anxiety and pathological demand avoidance. The Tribunal found that he had been involved in a number of incidents over a ten month period, involving pulling, pushing and grabbing. He had also hit a teaching assistant with a ruler, pulled her hair, punched her and hit her with a book. He was subjected to a 1.5 day fixed term exclusion on 26 February 2016 for 1.5 days, with the reason being given as his aggressive behaviour. He brought a claim before the First Tier Tribunal in respect of three incidents, though the appeal concerned a determination in respect of only one, the fixed term exclusion. The Tribunal found that L generally met the definition in section 6 of the Equality Act 2016; it found however that he had a tendency to physical abuse and as a result of the Regulation he was not to be treated as a disabled person because of that tendency. It rejected L’s contentions that the Regulation should be dis-applied or read down to avoid a breach of Article 14. It therefore did not continue to determine whether the treatment was a proportionate means of achieving a legitimate aim in accordance with s.15 of the Equality Act 2010. L appealed against that determination on the basis that the Regulation is in breach of Article 2 Protocol 1 (right to education) in conjunction with Article 14 of the European Convention. At the appeal stage, the Secretary of State (“SoS”) intervened as did the National Autistic Society.
The Appeal
The Court had to consider for the purpose of Article 14 (as set out in Mathieson v Secretary of State from Work and Pensions [2015] UKSC 47) the following:
Is the issue within the scope of another convention right?
Does L have a relevant status?
Is there differential treatment?
Is the differential treatment justified?
As to (1) there was no dispute as to the issue falling within the ambit of Article 2 Protocol 1.As to (2), the Court adopted the description of status as being a child with a recognised condition that is more likely to result in a tendency to physical abuse.
The comparator group for the purposes of “status” was disabled children whose condition or impairment does not give rise to an enhanced tendency to physical abuse (but who would nevertheless have been subjected to discrimination). The Judge accepted the arguments of L that there was differential treatment because children in this group were analogous - they were disabled, would potentially be discriminated against because of their behaviour but they would simply not reach the level of physical aggression as L. Holding otherwise would mean that the claim would fall at the first hurdle.
So far as justification was concerned: in accordance with R (on the application of Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57 – the Court had to consider:
Does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right?
Is the measure rationally connected to the aim?
Could a less intrusive measure have been used?
Bearing in mind the severity of consequences, the importance of the aim, the extent to which the measure will contribute to the aim, has a fair balance been struck between the rights of the individual and the interests of the community?
The Court considered only the first and fourth of those questions, proceeding on the basis that the other two were satisfied. It was common ground that the “manifestly without reasonable foundation” does not apply to the 4th element of the justification test (see R (A) v Secretary of State for Health (Alliance for Choice) and Ors Intervening [2017] UKSC 41 and the Court determined that when considering the remainder of the 3 stage test, manifestly without reasonable foundation was the appropriate test, suitably adjusted insofar as the Secretary of State sought to put forward a post-hoc foundation.
The decision - justification
In a lengthy consideration of justification, the Court accepted the SoS’ legitimate aim being a generic policy to ensure that the Equality Act 2010 does not provide protection for people where the effect of their condition involves anti-social or criminal action which has an impact on others whether by actual or potential harm to those other’s safety or their property. It extends to protecting the health and welfare of students and staff in schools.
It was assumed for present purposes that the other two aspects of justification were met.
The question then was fair balance, giving appropriate weight to the SoS’ decision. There was a dispute as to the weight to be attached to this, and this was dependent upon the extent to which the SoS had carried out a proper balancing exercise. The Court took into account a number of factors in this regard including the following:
the Regulations had been subject to the negative procedure – there was no reference to compatibility with the convention;
the House of Lords report on disability and the Equality Act (the Select Committee Report) had made recommendations regarding the exclusion, and the government had responded to the recommendations, committing to consult on the issue. This was documented in a witness statement from the civil servant with responsibility for this issue which was before the Upper Tribunal. However, the Court accepted L’s submission that there had not been full or proper consultation – despite a commitment by the SoS in July 2016 to consider how the exemption applies to those under 18 which had not yet been fulfilled. This suggested that the Secretary of State had not carried out a detailed evaluation.
The Court rejected a suggestion that the SoS’ appearance at the hearing, and arguments put forward, could be taken as evidence that the SoS had carefully weighed all of the competing considerations, carried out the requisite balancing exercise or come to a properly considered conclusion. There was nothing before the judge to indicate the extent of the SoS’ consideration of the various issues nor to explain how the conclusion was reached. In addition, there was no proper consultation, no scrutiny or endorsement by parliament on the issue of fair balance, no impact assessment of the regulations nor were the regulations considered and approved by affirmative resolution. The Court was forced to conclude that it could attach only very little weight to the SoS’ opinion.
The Court identified the detriment to the group of children affected (their exclusion from school, as evidenced by the National Autistic society and the appellant); it went on to consider whether this was justified by reference to the countervailing community interest. It found that schools could exclude children without having to explain or be held accountable for what if any reasonable adjustments they may or may not have made in respect of what may be loosely be described as physical aggression. It was said to be hard to overstate the impact on this particularly vulnerable cohort of children. Aggressive behaviour is not a choice for autistic children. An autistic meltdown is not the same as a temper tantrum [81].In addition, and so far as depriving children of the remedy of access to a First Tier Tribunal in respect of a discriminatory exclusion is concerned, judicial review does not provide a practical and effective remedy for testing the propriety of the exclusion in cases such as these.
In conclusion, it was held that the Regulations come nowhere near striking a fair balance – the requirements for the protection of the status group’s fundamental rights completely outweigh the arguments put forward for the protection of the interests of others.
In a strongly worded passage it was said that it is “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 to as to justify treating them differently from children whose condition has other manifestations.
As to remedy, the Court held that it was permissible to read and give effect to Reg 4(c) in a way that makes it Convention compliant. When construed in accordance with section 3 of the HRA it does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.
Discussion
This decision is helpful in a number of ways:
for those dealing with education cases involving children who have exhibited a “tendency towards physical abuse” – the exclusion in respect of schools cases no longer applies; whilst such cases have always had a possibility of succeeding on the basis of a reasonable adjustment argument, this will require an exclusion to be justified by a school, places the onus upon the responsible body (s.15 Equality Act 2010).
for those dealing with this issue in any other context – work, higher education etc - which the decision makes clear that it does not go any further than the schools provisions of the Act (something that the SoS had indicated the decision might otherwise affect) the broader scope of the regulations i.e. in respect of other parts of the Act must also be open to challenge.
for those who have cases which fall within any of the other exclusions, there is encouragement to consider whether a similar challenge might be mounted depending upon the area in which the exclusion is engaged.
when dealing with a defendant who is having difficulty grasping the nature of ASD, the court’s comments on the effects of this impairment are particularly helpful – such as the statement in the judgment that “an autistic meltdown is not the same as a temper tantrum”
Increasingly human rights and the Equality Act 2010 are being used in conjunction and this is another example of a very fruitful partnership.