C & C v The Governing Body of a School, The Secretary of State for Education (First Interested Party) and The National Autistic Society (Second Interested Party) (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Rowley |
| Neutral Citation | [2018] UKUT 269 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Disability discrimination in schools,Rowley,A |
| Date | 08 August 2018 |
| Published date | 21 August 2018 |
[2019] AACR 10
C & C v The Governing Body of a School, SSE (First Interested Party) and The National Autistic Society
(Second Interested Party) (SEN)
1
[2019] AACR 10
(C & C v The Governing Body of a School, The Secretary of State for Education (First
Interested Party) and The National Autistic Society (Second Interested Party) (SEN)
[2018] UKUT 269(AAC))
Judge Rowley HS/3177/2017
8 August 2018
Equality Act 2010 – Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations
2010 – ‘tendency to physical abuse’ – whether current interpretation is compatible with
Article 14 read with Article 2 of Protocol 1 of the European Convention on Human
Rights
L is a child and has autism, anxiety and Pathological Demand Avoidance. The appellants brought a claim in the
First-tier Tribunal under the Equality Act 2010 complaining of discrimination on the grounds of L’s disability
by the respondent, one of which concerned L’s fixed ter m exclusion from t he school on 2 5 February 2016 for a
period of one and a half days. The reason given for the exclusion was L’s aggressive behaviour, which included
incidents involving other pupils and a teaching assistant. The F-tT dismissed this part of the claim because L
had been given the exclusion as a result of his ‘tendency to physical abuse’ and so, pursuant to the provisions of
regulation 4(1)(c) of the Equality Act (Disability) Regulations 2010, was to be treated as not falling within the
definition o f ‘disability’. The Ft-T rejected the appellant’s submission that regulation 4(1)(c) should be read
down or disapplied so as to avoid breach of Article 14 of the European Convention on Human Rights (ECHR).
The appellants appealed to the Upper Tribunal.
There was no dispute tha t the issue was within the scope or ambit of Article 2 of Protocol 1 to the ECHR
(A2P1), or that L had an appropriate status for the purposes of Article 14 ECHR.
Held, allowing the appeal, setting aside the decision of the Ft-T and re -making it, that:
1. Article 14 of the ECHR is not a freestanding provision. It is to b e considered in conjunction with one or
more of the substantive rights and freedo ms safeguarded elsewhere in the Conventio n, the relevant one here
being A2P1 which provides that ‘no person shall be denied the right to education …”’ (paragraph 31).
2. there was difference in treatment between child ren with L’s status and others in an analogous situation;
(paragraphs 32-37).
3. the Secretary of State had failed to justify maintaining in force a provision which excluded from the ambit
of protection of the Eq uality Act, children whose behaviour in school was a manifestation of the very
condition which called for special educational provision to be made for them. (paragrap h 90).
4. In the context of education, regulation 4(1)(c) violated the Convention right of children with a recognised
condition that was more likely to result in a ‘tendency to physical abuse’ not to be discriminated against
under Article 14 read in conjunction with A2P1 (paragraph 93).
5. Whether regulation 4(1)(c) was read d own under section 3 of the Human Rights Act 1998 or whether it was
disapplied, given the F-tT’s findings of fact, L met the definition of a disabled person for the purposes of
section 6 of the Equality Act 2010 (paragraph 101).
6. The decision under appeal was re-made in the terms o f a confidential consent order agreed by the a ppellants
and respondent.
[2019] AACR 10
C & C v The Governing Body of a School, SSE (First Interested Party) and The National Autistic Society
(Second Interested Party) (SEN)
2
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Stephen Broach (instructed by Irwin Mitchell) appeared for the appellants
Samantha Paxman (employed by Browne Jacobson) appeared for the respondent
Sarah Hannett (instructed by the Government Legal Department) appeared for the first
interested party
Nick Armstrong (instructed by Clifford Chance, acting pro bono) appeared for the second
interested party
Decision: The decision dated 29 August 2017 of the First-tier Tribunal (Health, Education
and Social Care Chamber) (Special Educational Needs and Disability) under reference
number EH830/16/00043 is erroneous in law and is set aside pursuant to section 12(2)(a) of
the Tribunals, Courts and Enforcement Act 2007. I am able to re-make the decision under
appeal. The decision that the First-tier Tribunal should have made is in the terms of the
confidential consent order agreed by the appellants and respondent, attached hereto but not
published with this decision.
I direct that there is to be no disclosure or publication of any matter likely to lead
members of the public to identify the child with whom this appeal is concerned,
pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
REASONS FOR DECISION
1. I held an oral hearing of this appeal on 3 and 4 July 2018. Representation of the
parties was as set out above. I am grateful to all Counsel for their assistance in this case. The
appellants’ case is supported by the Equality and Human Rights Commission.
Terminology
2. In these Reasons:
“L” means the child with whom this case is concerned;
“the appellants” means L’s parents;
“the respondent” means the responsible body of the school with whose decision this
case is concerned;
“the Secretary of State” means the Secretary of State for Education, the first interested
party;
“NAS” means the National Autistic Society, the second interested party;
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