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Disability discrimination and autism

The August 2018 Upper Tribunal Administrative Appeals Chamber appeal decision in C & C v & Ors [2018] UKUT 269 (AAC)^B concerns disability discrimination in the provision of education. Whilst the case relates to a situation arising in England, the fact that the decision revolves around European Convention on Human Rights (ECHR) and Equality Act 2010 rights makes it equally applicable to Scotland. Whilst a full reading of the Upper Tribunal’s decision, particularly its consideration of what is reasonable and objective justification for differential treatment is strongly advised, this article provides a summary of the main elements of the decision and its implications.

The facts

The case concerns L who has autism, anxiety and Pathological Demand Avoidance. The appellants, L’s parents, brought a claim under the Equality Act 2010 complaining of disability discrimination. This particular appeal was against an earlier decision by the First-Tier Tribunal and relates to an incident where L was excluded from school for a fixed period of 1½ days when L was 11 years old. The reason given for the exclusion was L’s aggressive behaviour. This behaviour was attributable to his autism.

The law

For a person to be protected from disability discrimination by the Equality Act 2010 they must fall within the definition in section 6(1) of the Act which defines a person (P) as having a ‘disability’ if:

(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

Details on what amounts to discrimination generally (which includes failure to provide reasonable adjustments) under the Act can be found in sections 15 and 20. However, section 85(1) deals specifically with discrimination in admissions to schools and section 85(2) provides that:

The responsible body of [a school to which this section applies] must not discriminate against a pupil-

(a) in the way it provides education for the pupil;

(b) in the way it affords the pupil access to a benefit, facility or service;

(c) by not providing education for the pupil;

(d) by not affording the pupil access to a benefit, facility or service;

(e) by excluding the pupil from school;

(f) by subjecting the pupil to any other detriment.’

Section 85(6) also imposes a duty on schools to make reasonable adjustments. Paragraph 2 of Schedule 13 of the Act makes it clear that this duty applies to deciding who is offered admission as a pupil and the provision of education or access to a benefit, facility or service.

However, regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 states that certain conditions will not amount to impairments within the meaning of the Equality Act. These are:

(a) a tendency to set fires,

(b) a tendency to steal,

(c) a tendency to physical or sexual abuse of other persons,

(d) exhibitionism, and

(e) voyeurism.

In terms of relevant ECHR rights, the effect of Article 14 ECHR (prohibition of discrimination) in conjunction with Article 2 of ECHR Protocol 1 (the right to education) is that a disabled child should not be denied education where such denial is a disproportionate measure in the particular circumstances.

Decision

The First-Tier Tribunal had considered that L met the definition of a disabled person for the purposes of section 6 of the Equality Act. However, it considered that the Act’s protection did not apply because L had been excluded as a result of his ‘tendency to physical abuse’ thus falling within regulation 4(1)(c) of the 2010 Regulations. The applicants had submitted that regulation 4(1)(c) should be read down or disapplied in order to avoid a breach of Article 14 ECHR (prohibition of discrimination) in conjunction with Article 2 of ECHR Protocol 1 (the right to education) but the First-Tier tribunal had not accepted this.

In the appeal to the Upper Tribunal the First-Tier Tribunal’s finding that L had a ‘tendency to physical abuse.’ was not challenged. The issue before the Upper Tribunal was whether the First-Tier Tribunal had made an error of law when it found that L was not ‘disabled’ insofar as his ‘tendency to physical abuse’ was concerned. In particular, the Upper Tribunal had to determine whether regulation 4(1)(c) of the 2010 Regulations was compatible with Article 14 read in conjunction with Article 2 ECHR Protocol 1. It concluded that it was not compatible.

The Upper Tribunal referred to section 3(1) of the Human Rights Act 1998 which requires that, provided it does not disturb a fundamental feature of regulation 4(1)(c), allowed the tribunal to read and give effect to this regulation in a way which is compatible with ECHR rights. It found that, when construed in accordance with section 3 of the Human Rights Act 1998, regulation 4(1)(c) does not apply to schoolchildren who have a recognised condition that is more likely to result in a tendency to physical abuse. L thus met the definition of a disabled person for the purposes of section 6 of the Equality Act, the First-Tier Tribunal had therefore made a material error on the point of law and L had indeed been unlawfully discriminated against when he had been excluded from school on that occasion.

In reaching its decision the Upper Tribunal considered the public policy consideration underpinning regulation 4(1)(c) which was not to protect people where their condition results anti-social or criminal activity.

Moreover, in considering Article 14 ECHR in conjunction with Article 2 ECHR Protocol 1, the Upper Tribunal felt that in permitting the exclusion from the definition of ‘disability’ as a result of their aggressive behaviour regulation 4(1)(c) allowed disabled children such as L to be treated differently to other disabled children. However, it asked, could this difference be justified? In other words, had the ECHR requirement for proportionality in the limitation of its rights been met? It concluded that it had not in this case.

The Upper Tribunal considered that there was a lack of evidence that the regulation struck the right balance. The effect of regulation was extremely severe (and one which apparently affects a significant number of schoolchildren) because it permitted schools to exclude disabled children such L on the basis of a ‘tendency to abuse’ without having to provide justification even where this behaviour might actually be the result of the school’s own failure to make reasonable adjustments. Moreover, it noted that aggressive behaviour was not necessarily a choice for autistic children, who might not understand their behaviour thus making it inappropriate to label it as criminal or anti-social. Indeed, if the regulation did not apply, schools would not be compelled to accept violent behaviour, they would simply have to demonstrate that they had made reasonable adjustments or justify the proportionality of any decision to exclude the child.

Implications for Scotland

As with the rest of the UK, what this ultimately means for disabled children where they have a condition that gives rise to a ‘tendency to physical abuse’ is that they will be protected against exclusion without proper justification. Schools will be required to genuinely make reasonable adjustments for such children before any justification for exclusion is considered reasonable and objective, in other words proportionate.

Jill Stavert