Thousands of disabled children have won new protection from being unfairly excluded from school after a judge ruled that the government’s equality laws were unlawful.
The upper tribunal ruled last week that a 13-year-old pupil, known as “L” for legal reasons, should not have been excluded from his school because his behaviour was linked to his autism.
Now campaigners are calling on the education secretary to change the law to take account of the appeal victory.
L had originally been excluded from school for one-and-a-half days, when he was 11, because of his aggressive behaviour.
The way that Equality Act regulations have been interpreted has meant that children like L who were defined as having “a tendency to physical abuse” were often not treated as “disabled” and were therefore not protected by the Equality Act.
This lack of protection meant schools did not have to justify how a decision to exclude a disabled child in these circumstances was proportionate or explain how they had made reasonable adjustments to support the pupil so the behaviour could be prevented or reduced.
But Judge Rowley, sitting in the upper tribunal, has now found that this rule comes “nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other” and was a breach of the Human Rights Act.
He said that “aggressive behaviour is not a choice for children with autism” and that the education secretary had “failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special education provision to be made for them”.
He added: “In that context, to my mind 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 so as to justify treating them differently from children whose condition has other manifestations.”
He said he believed that his decision was “in harmony with” both the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child.
Statistics show that almost half of all school exclusions involve children with special educational needs and disabilities (SEND), who are almost seven times more likely to be permanently excluded than other pupils.
L’s parents said in a statement: “We have always believed passionately that our son and other children in his position should have equal rights to be able to go to school and receive the support they need to achieve the best possible outcomes.
“School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over.