Mr. X HS 1212 2014
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 06 January 2015 |
| Neutral Citation | 2015 UKUT 7 AAC |
| Subject Matter | Disability discrimination in schools |
| Respondent | The Governing Body of a School |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1212 2014 |
| Appellant | Mr. X |
[2015] AACR 28
(X v The Governing Body of a School)
(Three-Judge Panel)
[2015] AACR 28
(X v The Governing Body of a School (SEN)
[2015] UKUT 7 (AAC))
Judge Jacobs HS/1212/2014
Judge Ward
Judge Rowley
6 January 2015
Disability discrimination in schools – whether regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 applies to children – whether regulation 4(1) applies where the specified conditions arise in consequence of an impairment protected under section 6 of the Equality Act 2010 – meaning of “a tendency to physical … abuse of other persons”
The appellant’s five year old daughter’s behaviour was diagnosed as fitting the criteria for an autistic spectrum disorder. In May 2012 she moved to a new school and later, following an assessment of her Special Educational Needs, she received support from a teaching assistant. On 12 November 2012 the daughter physically attacked two children, the teaching assistant and the class teacher. She was excluded from school for one day and various steps were taken to address the problem. However, between February 2013 and May 2013 there were six more incidents involving further physical attacks by her for which she was again excluded from school. The appellants appealed to the First-tier Tribunal (F-tT) and the issues before it were whether or not the Equality Act 2010 was breached or whether the daughter’s condition was not to be treated as an impairment under section 4 of the Equality Act 2010 (Disability) Regulations 2010. The F-tT accepted that the daughter was disabled but held that section 4 of the 2010 Regulations applied, as she had a tendency to physical abuse of other persons, and therefore she had not been treated unfairly. The appellants appealed against that decision to the Upper Tribunal (UT). The issue before it involved the interpretation of regulation 4(1) of the 2010 Regulations and the submissions to it focussed on four issues: (a) whether regulation 4(1) applied to children under the age of 18, (b) whether it applied where the conditions specified arose in consequence of an impairment already protected under the 2010 Act, (c) the meaning of “physical abuse” and (d) the meaning of “tendency”.
Held, dismissing the appeal, that:
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adopting a purposive construction, regulation 4(1) of the 2010 Regulations applied to children and adults alike (paragraph 59);
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regulation 4(1) applied where the conditions specified therein arose in consequence of an impairment that was already protected under the provisions of section 6 of the 2010 Act (paragraph 101);
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a tribunal must approach its consideration of whether a person had “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it had found led to its conclusion, having taken into account all the circumstances of the case. This might be a challenging task but it flowed from the legislative choice of the more complex concept of “physical abuse” rather than “violence” or “assault”. The judges set out detailed guidance to assist tribunals in their consideration of such cases (paragraphs 114 to 121);
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the F-tT had erred in law as it failed to consider what “physical abuse” within “tendency to physical abuse” might mean rather than focussing on the “tendency”, and it failed to consider those matters identified within the detailed guidance set out by the judges (paragraph 122).
The panel set aside the decision of the F-tT but re-made it to the same effect.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Decision: The decision dated 18 December 2013 of the First-tier Tribunal (Health, Education and Social Care Chamber) (Special Educational Needs and Disability) under reference number SE830/13/00008 is erroneous in law and is set aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. It is appropriate for us re-make the decision under section 12(b)(ii) of the 2007 Act. Our decision is that the appellants’ claim is dismissed.
REASONS FOR DECISION
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Introduction
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There was an oral hearing on 17 November 2014 before a three-judge panel. The appellants were represented by Ms Schona Jolly, who was instructed by the Equality and Human Rights Commission, and the respondents by Mr Clive Sheldon QC and Mr James Cornwell. We are grateful to them for their submissions and assistance in determining the appeal. Although because of a quirk of the Upper Tribunal’s rules there is technically only one appellant (Mr X) Mrs X has also de facto been part of the proceedings throughout, and we refer to “the appellants” reflecting this.
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The issues in this appeal
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This appeal has been brought by the appellants against the decision dated 18 December 2013 of the First-tier Tribunal (Health, Education and Social Care Chamber) (Special Educational Needs and Disability) (referred to in this decision as “the tribunal”). The tribunal had dismissed the appellants’ claim for disability discrimination against their daughter (“S”). The respondent, the governing body of the relevant school (“the school”), opposes the appeal. The school is maintained by a local authority.
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The issue arising in this appeal is the interpretation of regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) (“the 2010 Regulations”), in particular in the context of the tribunal’s finding that S had “a tendency to physical … abuse of other persons” for the purposes of that regulation.
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The submissions at the hearing focussed on four questions:
(a) Does regulation 4(1) of the 2010 Regulations apply to children under the age of 18?
(b) Does regulation 4(1) apply where the conditions specified therein arise in consequence of an impairment that is already protected under the provisions of section 6 of the Equality Act 2010 (“the 2010 Act”)?
(c) What is the meaning of “physical abuse” for the purposes of regulation 4(1)?
(d) What is the meaning of “tendency” for the purposes of regulation 4(1)?
C. The context
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It is the view of Ms Kane, a child psychologist of the Elizabeth Newson Centre, who assessed S on 25 June 2013, that S’s “profile of development and behaviour clearly fits the criteria for an autistic spectrum disorder and that her personal profile would best be described by autism.” S experiences difficulties with language, motor skills, sensory modulation and learning (specifically relating to visual and spatial processing, resulting in attention and concentration difficulties).
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After short periods attending two different schools, S moved to the school in May 2012. She was five years old. At that stage she did not have a Statement of Special Educational Needs, but statutory assessments had been carried out. By all accounts S coped very well during her first term, and made small steps of progress.
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On 2 August 2012 the appropriate local authority issued a Statement of Special Educational Needs for S. In September 2012 she transferred into a mixed Year 1/2 class of 22 pupils. She was allocated teaching assistant support, initially by two teaching assistants sharing the role, but with effect from 22 October 2012 by one teaching assistant (“PD”) who had specifically been recruited to work with S.
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After the autumn half term holiday matters changed. There was, on 12 November 2012, an incident involving S which included her kicking out at two children making contact with them, stamping on a child’s foot, threatening PD and slapping her and pulling her hair, and kicking her class teacher (“LM”). In the light of this the headteacher (“SD”) decided to exclude S for a fixed period of one day.
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Meanwhile, the school contacted the local authority’s Behaviour Support Service, with whose support strategies were put in place. Whilst S’s behaviour was challenging, there were no serious incidents during the remainder of the term. However, between 6 February 2013 and 7 May 2013 inclusive, there were six episodes each of which resulted in fixed-term exclusions of up to four days.
6 February 2013: S kicked out at a member of staff, twice hitting her with some force on the ankle, thumped her clenched fists into the male deputy headteacher’s (“DW”) groin, and hit PD on the arm. A little later she hit PD twice in the face, and hit and kicked another member of staff (“JD”). As the members of staff backed away S followed them, hitting PD across the chest and JD on the arms. As PD turned, S hit her on her lower back and side.
13 February 2013: S pinched a child sitting next to her. She ran from the classroom. A little later, S kicked another member of staff on the leg, and kicked out repeatedly at PD, making contact on the inner left thigh. She repeatedly pushed her back into PD, causing PD to fall backwards into the coat rails, then sideways onto a small table. S kicked out towards her, making contact with the shin eight or nine times. LM came over to help. When LM told her to stop, S punched her on the jaw, hit her on the head with a flat palm, and kicked her on a number of occasions on her legs. LM, being concerned for the safety of children in the classroom, tried to usher S out of the classroom, whereupon S hit out with both hands and feet. Outside the...
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