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Upper Tribunal finds Equality Act exclusion discriminates against autistic children

The Upper Tribunal has held that regulations under the Equality Act 2010 excluding children who have a ‘tendency to physical abuse’ from its protection give rise to unlawful discrimination under Article 14 ECHR.

Monckton Chambers, from which barristers Steve Broach and Eric Metcalfe represented 13-year-old L, said Judge Rowley decided that regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.

L, a child with autism, was excluded from his primary school for such abuse and his parents appealed to the First-Tier Tribunal alleging disability discrimination by the school.

That tribunal though held that L’s behaviour had amounted to a tendency to physical abuse and the school need not justify the exclusion as he was not ‘disabled’ for the purposes of the Equality Act 2010.

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The Upper Tribunal decided the First Tier Tribunal had erred because there had been unlawful discrimination.

The Secretary of State for Education defended the action, arguing that children such as L were not in an analogous position to other disabled children and the differential impact of the regulations was justified.

Law firm Irwin Mitchell, which acted for L and his parents, said the ruling meant that thousands of children with disabilities would now be properly protected from discrimination in schools.

It noted the judge had found the regulation “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”.

He recognised that “aggressive behaviour is not a choice for children with autism”, and said: “In my judgment the Secretary of State has 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 educational provision to be made for them.”

The ruling can be seen here.

Mark Smulian

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