Creating a fairer Britain
24 July 2009
The Commission has welcomed a High Court ruling confirming that schools have to make reasonable adjustments for disabled children with conditions that give rise to behavioural problems.
The Commission part-funded the case acting on behalf of a nine-year old student who was excluded from his classroom at school, X, because of disruptive behaviour linked to his ADHD. When being removed from the classroom, the student JT scratched his teacher’s arm and was excluded from the school. The school later acknowledged that this was an inappropriate way to work with a child with his condition. However, they argued that his behaviour in this incident amounted to a tendency to physically abuse other people and therefore was not covered under the Disability Discrimination Act (DDA).
The Judge upheld the Tribunal’s decision that the school should have made reasonable adjustments under the requirements of the DDA to prevent the incident escalating in the first place. This included enlisting the support of a specialist team - which was available to the school - to provide adequate training for teachers to deal with disabled students, such as training in de-escalation techniques.
However, the ruling has highlighted a need to clarify the extent to which disabled people, whose condition can give rise to behaviours which might be considered a 'tendency towards physical abuse', can enjoy full protection from the DDA. The Judge ruled that scratching amounted to a tendency towards physical abuse, so the specific incident itself was exempt from the DDA, however JT’s condition of ADHD was not excluded from protection under the Act.
John Wadham, Group Director Legal, at the Commission said:
'This judgment sends a clear signal to schools that they must provide an appropriate teaching environment with the right support for children with special educational needs and to not wait until an incident has taken place before doing so.
'Currently, the rate of exclusion of these children is unacceptably high - we need to prevent these exclusions happening. This judgement will help teachers do that by providing clarity about their responsibilities.
'However, the case has highlighted the need of further clarification on what aspects of a disability are excluded by the DDA and the Commission will seek to clarify this issue via the Government’s new Equality Bill.'
The Commission part-funded the family’s successful appeal against the school in the Special Education Needs and Disability Tribunal (SENDIST).
The citation for this case is:  EWHC 1842 (Admin).
The pupil’s parents submitted a claim against the school for disability discrimination regarding his exclusion from school. In 2008, SENDIST found that excluding pupil JT in this way constituted less favourable treatment than other students would receive, but that the treatment was justified on health and safety grounds.
However, the Tribunal also found that the there had been a failure to make reasonable adjustments in relation to the exclusion. They found that the school should have enlisted the support of the specialist team, which was available to them, prior to the incident. The Tribunal said the treatment of the child could not have been justified if this 'reasonable adjustment' had been made.
The school appealed the decision on the grounds that the only relevant aspect of the child’s condition was his tendency to physically abuse other people - and that this behaviour is excluded from the definition of disability in the DDA. They claimed that if the scratching was not treated as a disability, no reasonable adjustments needed to be made.
The Commission funded the family’s successful defence in the Appeal to the High Court.
The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.