Making sure disabled children have fair access to education

Should children who can't understand that they are being disciplined by being excluded from school continue to be excluded for disciplinary reasons?  Is excluding a child from school for a reason they do not understand ever a reasonable and legitimate aim?

A child with severe communication disabilities and autism was excluded by his primary school for a fixed term after an incident where he was disruptive.

It was not clear what avenues other than exclusion were considered. It was accepted that the child did not understand that he was being excluded as a punishment, because of the impact of his disability.  

The exclusion was appealed by the family to the First-tier Tribunal, the Upper Tribunal and then to the Court of Appeal. The First-tier Tribunal and Upper Tribunal both found that the child’s exclusion was a proportionate means of achieving the legitimate aim of ensuring the health and safety of others.  The First-tier Tribunal also said it was appropriate to send a signal to other members of the school.

Statutory guidance under the Education Act 2002 and our Technical Guidance for Schools states that a pupil can only be excluded for disciplinary reasons. It was argued that the child in this case did not understand that he was being punished for his behaviour, therefore the exclusion was not for a “disciplinary reason”.  

While the First Tier and Upper Tribunals accepted that the child had been discriminated against because of his disability, they interpreted the justification of “a proportionate means of achieving a legitimate aim” to mean that the discrimination was justified.

The First Tier Tribunal referred to the aims of “ensuring the health and safety of others” and “ensuring other pupils could access education”. It also said that the exclusion “was appropriate in order to send a signal to other children and staff members.”  

The following legal issues therefore arose: 

• The child did not understand the disciplinary reasons for his exclusion, which raises the question of whether the exclusion was lawful at all, noting that under the statutory guidance children may only be excluded for disciplinary reasons.
    
• Whether imposing an exclusion on a child with a disability (for reasons other than disciplinary reasons) is lawful, and therefore a “legitimate aim” under the Equality Act. Statutory guidance sets out that exclusions should only be imposed for disciplinary reasons. However, the Upper Tribunal agreed with the First Tier Tribunal that other legitimate aims were being pursued by the school, particularly the aim of protecting staff and students from a pupil’s “uncontrolled, often violent, seriously disruptive behaviour and to provide an environment that facilitates learning” when they excluded the child. 

There was also the question of whether more proportionate means could and should have been taken, such as an emergency review of the child’s Education Health Care Plan (ECHP), or an off-site school direction.

We funded the family’s legal team to appeal to the Court of Appeal on the basis that the legal framework states children should only be excluded for disciplinary reasons.

The family’s appeal was unsuccessful. The Court of Appeal found that health and safety of other pupils was a legitimate aim, and that “disciplinary” should be construed more widely to include circumstances where a child did not understand that they were being excluded as a result of their behaviour.  The Court of Appeal judge held in refusing permission that he did not believe that parliament intended the word “disciplinary” to be construed so narrowly, where issues of the safety of the wider school community may be concerned. The Court of Appeal did not comment on the other avenues available to the school.

This was an important case in relation to protecting disabled children from exclusions for reasons relating to their challenging behaviour. We are concerned that should the decision have been allowed to stand, it could now be argued that a “legitimate aim” under the Equality Act would not necessarily have to comply with other statutory protections. This case has, however, highlighted the legal uncertainty in this area and the arguments may be used by others with more success.