15th March 2016
I thought you might find this case interesting and relevant.
J. Garrard & Allen
Authorised and Regulated by the Solicitors Regulation Authority (47796)
*(Higher Rights – Civil)
DISABILITY DISCRIMINATION & CHILDREN WITH SPECIAL NEEDS: AN INTERESTING CASE
In a recent First Tier Tribunal case a child was successful in a claim for disability discrimination under the Equality Act 2010 where that child had assaulted a teacher in a BESD (Behavioural, Emotional and Social Difficulties) School even though normally a tendency to commit violence against another invalidates such a claim.
Here the young person was able to convince the First Tier Tribunal that the action of the teacher had caused the young person to react in this way and therefore the action was as a direct result of his disability.
The First Tier Tribunal held that the Responsible Body was unaware of, and had failed to understand, its obligations under the Equality Act 2010.
Additionally there had been a failure by the Responsible Body in relation to its own Behaviour Management Policy and also failure to provide reasonable adjustments in respect of the young person’s disability.
Here the young person had a diagnosis of Pathological Demand Avoidance (PDA) and this together with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD) meant that he was disabled within the meaning of the Equality Act 2010.
The school, as the Responsible Body, was aware of his disability before his placement with them and he was placed in the school as he was unable to access education in a standard educational placement due to his severe behavioural difficulties.
The First Tier Tribunal held that in spite of this information the Responsible Body did not have sufficient understanding of his particular needs prior to him being placed in the school.
The teacher asked the young person to remove his coat and to take his books from his bag and he refused and was asked to leave the room and again refused.
These refusals were consistent with a young person suffering from Pathological Demand Avoidance but in spite of this the teacher and teaching assistant persisted in making repeated requests.
Responding to this the pupil pulled his hood over his head and put his head on the table in front of him and the teacher and teaching assistant attempted to remove him forcibly from the classroom.
The pupil reacted by winding his legs around the legs of the table and he was physically manhandled to the extent that a leg of the table came away from the table and the pupil was carried out of the room and he was kicking and screaming and was then restrained for 20 minutes and all parties sustained injuries.
The First Tier Tribunal held that it was a “bad case of disability discrimination” and they would have awarded damages if they had the power to do so as the courts did.
The Responsible Body was ordered to make a full written apology to the young person expressing their regret and providing an explanation of the steps would now take to ensure that this type of discrimination never occurred again.
The First Tier Tribunal also ordered the Responsible Body to ensure that all Senior Managers, staff and Governors of the school underwent training in relation to the Equality Act’s implications for school management. They were also ordered to review the school’s policies to ensure that they were compatible with their responsibilities under the Equality Act 2010 and this review was to be conducted with external assistance from appropriate educational consultants.
The First Tier Tribunal ordered a copy of the decision to be sent to the Chief Officer for Children and Education in the County concerned as well as to the Equality and Human Rights Commission and OFSTED.
This is a decision of a First Instance Court and that means that it is not binding on other courts and nor on the First Tier Tribunal itself.
Nevertheless it is an important decision as it shows that a tendency to commit physical violence against another person does not act as a complete bar to bringing an Equality Act claim arising out of an incident where the person claiming has committed such physical violence.
Each case will depend upon its facts but the type of circumstances which occurred in this case are not that unusual.
It shows the importance of BESD schools being fully aware of the law and of their responsibilities as well as being fully aware of the young person’s particular needs.
Although this case involved a BESD school, exactly the same principles apply to a child with special education needs and thus applies to all Special Education Needs and Disabilities cases and indeed to any child or adult who is disabled within the meaning of the Equality Act 2010 where someone else knows or ought to know of the disability and the issues involved.
Thus it applies to all mainstream education as well, and potentially to service provision outside the educational field.