A court has ruled that schools can no longer use a controversial loophole in the Equality Act’s regulations to exclude disabled children from school for “challenging behaviour” which includes “a tendency to physical abuse.”

An appeal to the Upper Tribunal saw the case of a child known as L, who had been excluded from school multiple times using this loophole as reasoning. L has autism, anxiety and Pathological Demand Avoidance, and according their school, their disability was not protected under the Equality Act per regulation 4(1)(c), which notes that where there is a “tendency to physical abuse,” their disability would not be a protected characteristic.

In a previous First Tier SEND Tribunal, L had been classified as not “disabled” on the basis of this regulation. Interventions to the case were made by Education Secretary Damian Hinds, and the National Autistic Society (NAS).

In the Upper Tribunal, Judge Rowley said: “Excluding such children often has a massive impact upon them.

“I am driven to conclude that it would be hard to overstate the impact of regulation 4(1)(c) on this particularly vulnerable cohort of children.”

She concluded the case, saying: “When construed in accordance with section 3 of the Human Rights Act 1998, section 4(1)(c) does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.”

Speaking to the Law Society Gazette, Jane Harris, the director of external affairs at NAS said: “Before this judgement, schools were able to exclude pupils who have a “tendency to physical abuse”, even if the school had made no adjustments to meet their needs… the loophole meant that there was not enough incentive for schools to make necessary reasonable adjustments.

“And some schools resort far too quickly to exclusions.”

Image: Flickr/Brad Flickinger


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