Education Executive is reporting that the parents of a 13-year-old boy – referred to as ‘L’ – with SEND are challenging the fact that their son was excluded from school due to behaviour linked to his autism.
The Upper Tribunal will hear their appeal this week. Current rules state that children like L lose discrimination protection under equality laws because their behaviour can include ‘a tendency to physically abuse’, even if this lashing out is due to their condition. It means that the children are not treated as disabled.
Statistics show that children with SEND account for almost half of school exclusions, but the lack of protection under the Equality Act means organisations don’t have to justify their decision.
Polly Sweeney, a human rights partner at Irwin Mitchell who is representing the family, said:
“The legal definition of ‘physically abusive’ has been stretched to the point that it means disabled children even as young as six or seven who may have only displayed low level physical aggression on a handful of occasions, or even just once if the physical aggression was significant, are denied protection from discrimination under the law.”
“It is important to make clear that this finding would not mean that schools are prevented from excluding children where it is necessary and proportionate to do so. However, it would ensure that all disabled children are afforded the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”
The appeal by L’s parents is supported by the National Autistic Society, which has been joined as an interested party because of the particularly negative impact of the way in which the rule has been interpreted on children with autism. The Secretary of State for Education has also joined as an interested party and is opposing the appeal.
Read more about the case Parents strive to change ‘discriminatory’ law affecting pupils with autism
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