Special Educational Needs and Disability Tribunal explains "Disability"

The Upper Tribunal has issued a judgement explaining the definition of “Disability”. It particularly focuses on cases where a person reacts in a violent manner as a direct result of an underlying condition (such as Autism or ADHD).

The case is Mr X v The Governing Body of a School.

Who is this relevant to?

This case is relevant to all young people with special educational needs which lead, in one way or another, to some form of outbursts.

What is the decision?

To explore what the decision means, the underlying law must be understood.

The Equality Act 2010 sets out that a person is disabled if they have an “impairment” which is “long-term” and has a “substantial” impact on ability to do day-to-day activities. As such, children with ADHD and Autism, for example, are likely to be disabled.

The Equality Act (Disability) Regulations 2010 adds to the very broad definition. Part of what these regulations say is that if a person has a “tendency to physical abuse” then that cannot be an “impairment”. This basically means that if a person acts in a physically abusive way that behaviour cannot be part of a ‘disability’ in law, even if it is in fact.

For example, a young person with ADHD would generally be seen as disabled. If they were unable to concentrate and had high levels of distractibility, those elements would be a disability which they are protected for. However, if the child became violent then, at that point, they ceased to have the protection of the Equality Act and could be punished for that behaviour, even if it was a result of ADHD.

This case has explored what a “tendency to physically abuse” means. The Tribunal decided that there is no clear definition but a number of factors are to be considered:

• There must always be an element of violent conduct. The worse the violence, the more likely it will be “physical abuse”
• The person acting violently does not need to know that what they are doing is wrong. However, the conduct cannot be an involuntary reflex or uncontrollable muscle spasms
• If the person acting violently was not doing so in an authoritative, or powerful, position, careful consideration of their behaviour must be given before deciding that it was abuse
• If the behaviour is by a child, the child’s own stage of progression will be relevant
• “Tendency” could be proven from only a one-off incident. The question is whether the incident, or incidents, reveal a likelihood to behave in a violent way.

Each of the above should now be considered. Not one is decisive, and the weight attached to each consideration will depend on each case.

What does this all mean?

This all means that if a person has a condition which affects their behaviour in a violent manner, there is a real likelihood that they will not have protection from the Equality Act.

If a child behaves violently, even as a result of a condition like Autism or ADHD, then they could face exclusion. This case means that it is unlikely that the child could then claim that the exclusion was discriminatory. If a child does face this situation, parents can, and should, request an assessment by an educational psychologist.

The case would also suggest that children with difficulties or disabilities which result in violence may not, as a result of the Equality Act, expect to receive additional support under the category of reasonable adjustments. Instead, they will be left to rely on the law relating to special educational needs.

Within the case the Tribunal did note that the Children and Families Act 2014 and linked guidance require that children are supported for. For children with behaviour-related difficulties this will include the provision of behaviour support plans.

The SEN Code of Practice does set out that behaviour difficulties, on their own, may not necessarily qualify as special educational needs.  As such, it may well be increasingly difficult for children who present with challenging behaviour alone to secure support, or protection from exclusion.

What this case indicates is that it is crucial to seek appropriate medical advice for a child with behaviour difficulties as soon as those difficulties arise. Assessment of underlying difficulties must be undertaken so that the core issue is recognised quickly, rather than being considered simply as behaviour difficulties.