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• 13 Mar 2023

• Yes

  Simple

  If a child is excluded just because they have the protected characteristic of disability, that would be direct discrimination S13 EQ 2010.

  The Equality Act 2010 (Disability) Regulations 2010 identifies come conditions which are not to be treated as impairments,  albeit for disabled children within education “a tendency to physical … abuse of other persons” needs to be considered in light of the decision in  C & C v The Governing Body of a School [2018] UKUT 269 (AAC)  where it was decided that it would be unfair to automatically remove this condition from the disability framework. 

  To add to the helpful answer from Mr King, the following from the No-nonsense Guide(s) may also assist:

  04.01 Does a school or post-16 provision have to make “reasonable adjustments” under the Equality Act 2010 for a child/young person if they have not been told they are disabled?   

   04.04 Does a school have to do anything to create a level playing field for my child when compared to other children who are not disabled? 

  02.01 Does the Equality Act 2010 afford a disabled child or young person any protection in education?

  With regards to the reasons a child may 'act up' it is important to ALSO look if 

  a) all their special educational needs have been identified AND

  b) all the special educational provision they need to meet these needs has been made (or is in place).

  If the answer to one of the above is YES, then a parent should consider whether they need to secure a needs assessment

  05.01 Are there any particular rules about when an LA has to undertake statutory assessment of a child or young person’s SEN?

  Or, if they have an ECHp, whether the document needs amending. Possible amendments are likely best addressed at a review meeting and the answer to this question may be helpful 04.035 Does the LA have to review an EHCP?

  

  Sean Kennedy
  Talem Law

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• 12 Mar 2023

• Yes

  Complex

  Note: This answer talks about autism but it also applies for children who have ADHD (and even children who have both).

  Yes – the school’s behaviour policy applies to children both with and without autism. 

  However, a school has to have made reasonable adjustments for the child. If it hasn’t, there’s a risk that the exclusion could be disability discrimination.

  Schools should also consider whether the disability contributed to the incident. That can be a hard call to make as it’s often not clear.

  A school will probably look at how serious the event was. Even if disability is a factor, schools are likely to exclude for really serious incidents, especially if they involve criminal behaviour (e.g. bringing drugs or weapons to school).

  Whether it is a repeated incident might also influence the head teacher’s decision. For example, if a child has bit a member of staff, things were put in place and he wasn’t excluded, but then it happened again, it might increase the likelihood of an exclusion.

  Autistic children are over-represented in the school exclusion data. So it’s important that schools put in place training, support and strategies at the earliest stage so that we can reduce the risk of excluding autistic children. 

  

  Aaron King
  9000 Lives SEND Consultancy

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