Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/1212/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Jacobs

Upper Tribunal Judge Ward

Upper Tribunal Judge Rowley

 

Attendances:

 

For the Appellant: Ms. Schona Jolly

 

For the Respondent: Mr. Clive Sheldon QC, Mr. James Cornwell

 

 

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

A.   Introduction

1.         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.

B.   The issues in this appeal

2.         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.

3.         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. 

4.         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

5.         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). 

6.         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. 

7.         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. 

8.         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.

9.         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 classroom LM knelt and attempted to calm S, but S continued hitting out.  S then kicked PD and DW on the leg, before going back into the classroom whereupon she kicked a child who was on the carpet.  As LM was trying to line up the class to get them out of the room S kicked another child in the line.  S proceeded to run around the building, kicking and punching two members of staff who were in the hall.

25 February 2013: S punched PD in the throat, and kicked SD.  Later that day she punched PD in the stomach and kicked her on the leg.  S ran into the classroom and struck a member of staff in the face with a xylophone stick.  She then hit PD across the nose with the palm of her hand.  Having gone to SD’s office, S kicked SD on the knee, and kicked PD before punching her on the chest and stomach.  She took her schoolbag and hit PD round the head with it.

11 March 2013: S hit a child in the face with her hand, and subsequently lashed out at SD slapping her very hard on the cheek.  She began attempting to hit SD, who put up her forearm to protect herself, whereupon S repeatedly hit her on the forearm, and kicked her, before running to PD and kicking in the groin area and hitting her on the arm.  S ran around the school building, followed by PD.  She ran into the (empty) classroom and hit PD repeatedly on the side and back.

1 May 2013:  S hit PD with a book and LM on the chest with her hand, and when DW tried to intervene she threw a book at him, hitting him on the chest.  S then kicked PD and LM repeatedly. 

7 May 2013: S kicked a member of staff and attempted to kick another.  When SD intervened S hit her very hard in the stomach three times, kicked her several times in the legs and proceeded to throw desk items at her.  The incident left SD in a lot of pain.

10.      Whilst the Appellants did take issue with the “triggers” for these incidents, they did not materially dispute what S did.

11.      We should add that there were other occasions upon which S had hit, punched and kicked members of staff, but each time the decision had been taken not to exclude her because her behaviour had not escalated during those incidents.

12.      Following the exclusion relating to the events which occurred on 7 May 2013 the Appellants withdrew S from the school.  She began to attend a maintained special school in September 2013. 

13.      The Appellants brought proceedings before the tribunal.  The issues were whether or not the Respondent had acted in breach of sections 15 and 20 (read with section 21) of the 2010 Act, the relevant provisions of which are set out below.  The tribunal heard the case on 24 September, 12 and 13 November 2013, and issued a Decision on 18 December 2013.  The First Appellant attended the hearings and represented the Appellants.  The Respondent was represented by Mr. Cornwell of Counsel.  The tribunal dismissed the claim in its entirety.

D. The statutory framework

14.      Statutory protection from discrimination arises under the 2010 Act, which consolidated a wide variety of laws relating to discrimination.  One of its objectives was to bring under one legislative scheme those characteristics in respect of which it is unlawful to discriminate (with some exceptions).  The “protected characteristics” are set out in Part 2, Chapter 1 of the Act.  They include “disability.”

15.      Section 6 of the 2010 Act provides:

“6 DisabilityE+W+S

This sectionnoteType=Explanatory Notes has no associated

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability

…

(6) Schedule 1 (disability: supplementary provision) has effect.”

 

16.      Part 1 of Schedule 1 to the 2010 Act makes further provision in relation to the determination of disability.  Under the heading “impairment” paragraph 1 provides that:

“Regulations may make provision for a condition of a prescribed description to be, or not to be, an impairment.”

17.      The 2010 Regulations were made under, inter alia, section 6(6) of and paragraph 1 of Schedule 1 to the 2010 Act.  Part 2 concerns “Determination of Disability.”  Regulation 4(1) provides:

“Other conditions not to be treated as impairments

4(1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:

(a)  a tendency to set fires,

(b)  a tendency to steal,

(c)  a tendency to physical or sexual abuse of other persons,

(d)  exhibitionism, and

(e) voyeurism.”

18.      Significantly, the provisions set out above are materially identical to provisions in section 1 of and Schedule to 1 to the Disability Discrimination Act 1995 (“the DDA”) and regulation 4(1) of the Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455) (“the 1996 Regulations”), the predecessor legislation.

19.      There is an Explanatory Memorandum to the 2010 Regulations.  In the normal way it was prepared by the Department for Work and Pensions and was laid before Parliament.  Under the heading “policy background” it is stated, at paragraph 7.1 that:

“… In general, the protection of the DDA has been carried forward to the disability provisions of the Equality Act, though the Equality Act also improves and harmonises the disability provisions. Where appropriate, provisions made under the DDA and which supplement the provisions in that Act have been carried forward to, and included in, the Equality Act. This instrument consolidates and applies various technical provisions relating to the definition of disability and the duties to make reasonable adjustments for disabled people, for the purposes of the Equality Act.”

20. By paragraph 7.3 of the Explanatory Memorandum:

“7.3 This instrument prescribes that addictions to non-prescribed substances, and certain other conditions, like a tendency to steal, are excluded from being impairments and, consequently, from providing protection under the Act. These are excluded for public policy reasons, for example to avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity. Or they are excluded because they are not conditions that are generally recognised as disabilities.”

21.      Enshrined within the Explanatory Memorandum is the sense that the 2010 Act and Regulations are consolidating and building on the previous complex assortment of discrimination legislation.  To that end, at paragraph 8.1 of the Explanatory Memorandum it is stated that:

“8.1 No specific consultation was undertaken on this instrument as its provisions are not new, but have been carried forward from regulations that applied for the purposes of the DDA.”

22.      In addition, paragraph 10.3 of the Explanatory Memorandum declares that a full impact assessment has not been prepared for the Regulations as they replicate and consolidate existing provisions.

23.      Pursuant to section 6(5) of the Act, a Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of section 6(1) (the meaning of “disability”).  Part 2 of Schedule 1 to the 2010 Act makes further provision in relation to the guidance issued under section 6(5).  Draft guidance must be laid before each House of Parliament (paragraph 14(1)), and the draft guidance is then subject to a negative resolution procedure (see paragraphs 14(2) and (3)).  Paragraph 12 of Schedule 1 to the 2010 Act provides, in material part, as follows:

“Adjudicating bodies

12

(1) In determining whether a person is a disabled person, an adjudicating body must take account of such guidance as it thinks relevant.

(2) An adjudicating body is –

…

(b) a tribunal;

…”

24.      The current version of the guidance issued under these provisions is the “Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“the Guidance”). 

25.      Exclusions from the definition of disability are addressed at paragraphs A12 - A15 of the Guidance.  Paragraph A12 notes that certain conditions are not to be regarded as impairments for the purposes of the Act.  It lists, among others, those matters set out in regulation 4(1) of the 2010 Regulations.  Paragraph A13 states that:

“The exclusions apply where the tendency to set fires, tendency to steal, tendency to physical or sexual abuse of other persons, exhibitionism, or voyeurism constitute an impairment in themselves. The exclusions also apply where these tendencies arise as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act. It is important to determine the basis for the alleged discrimination. If the alleged discrimination was a result of an excluded condition, the exclusion will apply. However, if the alleged discrimination was specifically related to the actual disability which gave rise to the excluded condition, the exclusion will not apply. Whether the exclusion applies will depend on all the facts of the individual case.”

26. The Guidance proceeds to give the following example:

“A young man has Attention Deficit Hyperactivity Disorder (ADHD) which manifests itself in a number of ways, including exhibitionism and an inability to concentrate. The disorder, as an impairment which has a substantial and long-term adverse effect on the young person’s ability to carry out normal day-to-day activities, would be a disability for the purposes of the Act.

The young man is not entitled to the protection of the Act in relation to any discrimination he experiences as a consequence of his exhibitionism, because that is an excluded condition under the Act.

However, he would be protected in relation to any discrimination that he experiences in relation to the non-excluded effects of his condition, such as inability to concentrate. For example, he would be entitled to any reasonable adjustments that are required as a consequence of those effects.” 

27.      As we have noted above, the Appellants brought their claim under sections 15 and 20 of the 2010. 

28.      Section 15 provides as follows:

“15 Discrimination arising from disabilityE+W+S

This sectionnoteType=Explanatory Notes has no associated

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

29.      Section 20 defines what is meant by the duty to make reasonable adjustments for the purposes of the Act.  The duty comprises three requirements, the first of which is relevant in this case.  It is set out in section 20(3) in the following terms:

“(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

30.      By section 21:

“21 Failure to comply with dutyE+W+S

This sectionnoteType=Explanatory Notes has no associated

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person…”

31.      Part 6 of the 2010 Act applies to education.  Originally, when enacted, the DDA did not apply to education.  Discrimination in relation to education was included in the scope of the DDA when Part 4 was introduced with effect from 1 September 2002 by the Special Educational Needs and Disability Act 2001. 

32.      Chapter 1 of Part 6 of the 2010 Act relates to schools.  The relevant provisions of section 85 are:

 “85 Pupils: admission and treatment, etc.E+W+S

...This sectionnoteType=Explanatory Notes has no associated

 

(2) The responsible body of such a school must not discriminate against a pupil—

…

(e) by excluding the pupil from the school;

…

(6) A duty to make reasonable adjustments applies to the responsible body of such a school.

(7) In relation to England and Wales, this section applies to—

(a) a school maintained by a local authority;

…

(9) The responsible body of a school to which this section applies is—

(a )if the school is within subsection (7)(a), the local authority or governing body;…”

33.      Under paragraph 2(4) of Schedule 13 to the 2010 Act the duty of a responsible body of a school to make reasonable adjustments applies to (a) deciding who is offered admission as a pupil; and (b) provision of education or access to a benefit, facility or service.  It does not apply to a decision to exclude a pupil from the school.

E. The Tribunal’s findings

34.      The tribunal was satisfied that S had a disability as defined by section 6 of the 2010 Act.  It went on to consider whether she fell within the provisions of regulation 4(1) of the 2010 Regulations.  At paragraph 90 of its Decision the tribunal stated:

“We have considered the circumstances surrounding each of [S’s] exclusions carefully and we find that [in] each case [S] physically attacked another pupil or a member of school staff or in some cases both.  Whilst we acknowledge that [S] was only 6 years old when these events occurred, nevertheless the fact that “physical abuse” took place on 7 occasions over a 7 month period does mean that [S] can be described for the purposes of the Regulations as having a tendency to physical abuse of other persons.  This remains the case even though we accept that her behaviour was undoubtedly as a result of her autism.  Given that the physical abuse formed at least part of the reason for each of [S’s] fixed term exclusions, accordingly for the purposes of section 15, [S’s] treatment in being excluded arises from a condition which cannot be considered an impairment; as a result [S] was not treated unfairly because of something arising in consequence of her disability.”

35.      The tribunal accordingly dismissed the claim under section 15.  Turning to section 20, the tribunal considered whether there had been any failure to make reasonable adjustments in relation to S’s “non-excluded impairments,” and found that there had not been any such failure.

F. Does regulation 4(1) of the 2010 Regulations apply to children under the age of 18?

36.      It is not in dispute that the regulation must be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it.  Ms. Jolly submitted that a purposive interpretation of regulation 4(1) must narrow its context so that it does not apply to children under the age of 18 (whether in the context of education or more broadly).  Mr. Sheldon’s case was that it was not possible to read regulation 4(1) in that way.

37.      What appeared to lie behind Ms. Jolly’s submissions, it seemed to us, was a call for legislative change.  That is outwith our powers.  It is our task to interpret the primary and secondary legislation.  The 2010 Regulations were made pursuant to paragraph 1 of Schedule 1 to the 2010 Act.  That, in turn, supplements section 6, which appears in Part 2 of the Act.  It is entitled “Equality: Key Concepts.”  There is no doubt that those “key concepts” apply throughout the 2010 Act to all the contexts in which substantive non-discrimination duties arise.  As Mr. Sheldon pointed out, the same pattern of drafting applied under the DDA.  We agree with him that Parliament plainly intended that the definition of disability (and the deemed exclusions from it) applies throughout the 2010 Act, including the provisions in relation to duties owed to children not only in the context of education under Part 6 but also in the contexts of the provision of services to children and employment of children of working age (the latter two having been under the protection of disability legislation from the DDA onwards).  Had Parliament intended otherwise, there is no doubt that it would have so indicated.  It did not do so.

38.      Furthermore, the provisions of what are now section 6 of and Schedule 1 to the 2010 Act, and regulation 4(1) of the 2010 Regulations, have not materially changed since they were introduced by the DDA and the 1996 Regulations.  Parliament has had a number of opportunities to reconsider and amend them, not least when the disability discrimination regime was extended to education by the Special Educational Needs and Disability Act 2001, and again when the whole corpus of discrimination law was reviewed and consolidated in the 2010 Act.  However, crucially in our view, on no occasion has Parliament decided to amend the legislation in such a way as to remove children under the age of 18 from the ambit of regulation 4(1). 

39.      It is, then, significant, that where Parliament wished children to be treated differently under the legislative provisions, it made sure that that was the case.  For example, regulation 6 of the 1996 Regulations provided that for the purposes of the DDA a child under six years of age was to be taken to have a disability where his or her impairment normally would have a substantial and long-term adverse effect on a person aged six or over.  Hence, where it was appropriate to do so, Parliament saw fit to distinguish the circumstances of children and adults.  Whilst the effect of the regulation 6 was replicated in regulation 6 of the 2010 Regulations, the words were amended slightly.  The regulation does, of course, fall within a different context from regulation 4.  That said, its amendment, in our judgment, indicated that consideration had been given to the terms of the relevant body of regulations when the legislation was reviewed in 2010.  If Parliament had intended to exclude children from the provisions of regulation 4(1) it had the opportunity to do so at the same time, and it did not take that opportunity.  In the circumstances, Ms. Jolly’s suggestion that the application of regulation 4(1) to children is the result of some oversight by Parliament cannot, in our view, be sustained.

40.       As paragraph 7.3 of the Explanatory Memorandum to the 2010 Regulations makes clear the prescribed conditions of regulation 4(1) have been excluded from protection for public policy reasons.  They avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity and thus have an impact on others, whether by potential or actual harm to their health and safety, or to their property.  That is so whether the behaviour is carried out by a child or by an adult.

41.      We acknowledge that Ms. Jolly’s submission that this may be seen to give rise to what she called “arbitrary exclusion” of autistic children and other children with neuro-developmental conditions.  We note, however, that there would only be exclusion from the protection of the 2010 Act of such children with respect to a condition specified in the regulation.  On the other hand, any non-excluded condition of those children would be fully protected in the usual way.  By way of example, an autistic child may be disruptive and non-compliant in class.  So long as the child’s behaviour did not fall within the provisions of regulation 4(1), the responsible body of the school would be under a duty not discriminate against him or her under section 15 of the Act, and to make reasonable adjustments under sections 20 and 21 by, for instance, the introduction of a behaviour management plan.  But, if the child’s behaviour was such as to engage regulation 4(1), then as a matter of policy, Parliament has decided to exclude it from the protection of the legislation. 

42.      We readily acknowledge that each child has a right to an inclusive education in so far as that is possible.  That does not mean, however, that there is a right to education at any particular school.  Insofar as authority is required for that proposition it may be found in A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363. Thus, to the extent that Ms. Jolly suggested that if regulation 4(1) were to be interpreted in such a way as to include children the effect would be that children might be excluded from the right to education, we find that the suggestion cannot be sustained.

43.      Further, we reject Ms. Jolly’s argument that the language of the regulation does not sit easily with the normal developmental stages that children go through.  She suggested that children commonly do one or more of the excluded activities at some stage during their childhood, and it is only when they are taught that it is wrong that they stop. It would be extraordinary, she argued, to describe the normal habits, mannerisms and even naughtiness of children as a “tendency” so that they would be removed from the protection of the disability legislation.  It followed, said Ms. Jolly, that the behaviours set out in the regulation plainly were intended only to deal with adult behaviours for which criminal consequences would attach by law.  To construe the legislation in any other way would not make sense, argued Ms. Jolly.  It is the child’s right to be educated in how not do the activities listed in regulation 4(1), or indeed why not to do them.  If provision of that education is excluded because of a behaviour which stems from their disability, the requirement to provide that education is removed at the first hurdle.  The immediate answer to this is that being excluded from the protection of the 2010 Act does not impair the duties owed under special educational needs legislation (see [80] below).

44.      We do, of course, recognise that the stage of a child’s development is a factor which would fall to be considered in deciding whether or not the child had a “condition” so as to bring it within the remit of regulation 4(1).  However, even if we assumed, for the purposes of argument, that the tendencies listed in regulation 4(1) constitute an ordinary part of growing up, nevertheless such activities are at least anti-social and potentially have a significant impact on others. It has been decided, with the authority of Parliament, that they should not be protected by the anti-discrimination legislation.  Thus, in our judgment, even if the specified tendencies were to be considered to be part of developmental stages of childhood, we agree with Mr. Sheldon’s argument that it does not follow that they should not be excluded from the protection afforded to those with a disability by reading regulation 4(1) so as to exclude children from its application altogether. 

45.      Ms. Jolly drew our attention to two treaties.  First, she referred to the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”), which was ratified by the United Kingdom on 8 June 2009.  It is declared to be one of the EU treaties by the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009 (SI 2009/1181), and as such is directly applicable to UK law, and informs the understanding of the concept of disability. 

46.      The definition of disability - in Article 1 - is a wide one:

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

47.      The provisions which were relied upon by Ms. Jolly are set out at the Appendix to this Decision.  They were Articles 7 and 24, which deal with children with disabilities, and the right to education for disabled persons respectively.

48.      The Judgment of the CJEU in HK Danmark, acting on behalf of Jette Ring v Dansk Almennyttigt Boligselskab (C335/11 CJEU 11 April 2013, [2013] IRLR 571) requires Directive 2000/78 (the Framework Equality Directive implemented in the UK by the 2010 Act) to be interpreted as far as possible in a manner consistent with the CRPD.  The 2010 Act must be interpreted in accordance with the Framework Directive insofar as it is possible (see EBR Attridge LLP (formerly Attridge Law) and another v Coleman [2010] ICR 242), the test being whether the interpretation required to conform to the EU Directive is compatible with the underlying thrust of the legislation, or whether it is inconsistent with the scheme of the legislation or its general principles.  Whilst we accept Mr. Sheldon’s submission that discrimination in relation to education is not within the scope of EU law, nevertheless discrimination in, inter alia, employment is.  Thus, we are of the view that, in the interests of a consistent approach across the areas covered by the 2010 Act, in determining whether regulation 4(1) of the 2010 Regulations applies to children in any context, we should interpret the regulation in accordance with the CRPD. 

49.      The second treaty highlighted by Ms. Jolly was the UN Convention on the Rights of the Child, which the UK has also ratified.  It has specific provision for children with disabilities.  The provisions cited by Ms. Jolly are, again, set out at the Appendix to this Decision.  They were Articles 23, 28 and 29.  Unlike the CRPD, this Convention has not been specified as an EU treaty.

50.      It was Ms. Jolly’s case that in giving effect to the UK’s obligations under these treaties a tribunal must adopt a broad, inclusive approach to disability, particularly with regard to education, otherwise the whole purpose of disability protection, both domestic and international, would be defeated.  Ms. Jolly urged us to prefer her reading of the legislation, as that would be consistent with the Conventions. 

51.      We are of the view that the fundamental difficulty faced by Ms. Jolly is that the Conventions add little to the analysis. They do not deal with the behaviours and conditions with which we are concerned in this appeal.  It is not sufficient, in our judgment, for Ms. Jolly to seek to rely on general statements as to the need to protect persons with disabilities when these are contrasted with the limited and focused exclusions of the regulation which were adopted by Parliament for clear policy reasons.  We can see nothing in either of the Conventions which is capable of supporting Ms. Jolly’s proposed reading of regulation 4(1).  A similar conclusion was reached by Lloyd Jones J (as he then was) in Governing Body of X Endowed Primary School v Special Educational Needs and Disability Tribunal and others [2009] EWHC 1842 (Admin), [2010] ELR 1 (“X School”), and we agree with it.

52.       Ms. Jolly also prayed in aid two documents issued by government departments which, she said, taken in the round, put children at the heart of an intention to keep them at school wherever possible.  “Exclusion from maintained schools, Academies and pupil referral units in England: a guide for those with legal responsibilities in relation to exclusion” was issued in July 2012 by the Department for Education.  “Special educational needs and disability code of practice: 0 to 25 years” is the most recent such code of practice, and was issued by the Department for Education and the Department of Health in July 2014, a date which post-dates the tribunal’s decision in this case albeit it may well be that similar policy aims were evident in the predecessor code of practice under the Education Act 1996 before it was replaced (in England) by the Children and Families Act 2014. 

53.      The documents undoubtedly adopt an inclusive approach to children with special educational needs.  Their pervading language, Ms. Jolly argued, was that of “reasonable adjustments,” and it is precisely to avoid exclusions where possible that the section 20 framework of “reasonable adjustments” is in place.  If a child with complex social, language, communication and behavioural difficulties has a right enshrined in law to an inclusive education in so far as that is possible, it would be absurd, she suggested, if that child could be arbitrarily excluded from school without consideration of the need to make reasonable adjustments which may, in some cases, be relatively simple and straightforward.

54.      The thrust of Ms. Jolly’s submissions on these documents was that it would  be wholly surprising if the government’s own inclusive approach to children with special educational needs, in particular in respect of exclusions, was undermined by a lack of protection emanating from the disability legislation itself.  There was no reference in any of the documents to the protection of “some” disabled children.  Rather, submitted Ms. Jolly, all are protected, and every child should have every possibility of remaining in school.

55.      In our judgment these submissions cannot be sustained.  The provisions of neither document assist us in the determination of the question as to whether regulation 4(1) applies to children.  As with the Conventions referred to above, there is nothing in either document which deals specifically with the matters set out in the regulation.  And we must, of course, bear in mind that the scope of regulation 4(1) is not limited to the context of education but applies also to the provision of services and employment.  In our judgment these documents took Ms. Jolly’s case no further.

56.      Ms. Jolly contended that it was appropriate to have regard to answers given by the then Minister of State for Disabled Persons (Mr. William Hague MP) at the Third Sitting of Standing Committee E to consider the Disability Discrimination Bill on 7 February 1995, and a written answer by the then Minister of State at the Department of Social Security, Mr. Alastair Burt, MP, to a question as to certain personality disorders being excluded from the Act.  She argued that the statements appear to demonstrate that the exclusions were intended to deal with adults only, and that it was never considered that children would be caught by the exclusions.

57.      It is common ground that: (a) Ministerial statements in Parliament may be considered by the courts as an aid to statutory construction where the terms of the legislation are ambiguous or obscure or the literal meaning leads to absurdity; (b) the statement must be one of the Minister or promoter of the bill; and (c) the statement must clearly state the intended meaning of the legislation (Pepper v Hart [1993] AC 593).

58.      Even if we were of the view that (a) was satisfied, we are far from being persuaded that (b) and (c) were.  The statement of Mr. William Hague, MP, was made in the course of passage of the Bill over 18 months before the 1996 Regulations were laid, and that of Mr. Alastair Burt, MP, was from a Written Answer, not from a Parliamentary debate.  Further, in our judgment neither statement clearly states the intended meaning of the legislation.  Accordingly, we find that it is neither legitimate nor helpful to consider the Ministerial statements. 

59.      For all the reasons set out above, we unhesitatingly find that, adopting a purposive construction, regulation 4(1) of the 2010 Regulations applies to children and adults alike.

G. 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 2010 Act?

60.      The facts of this case perfectly encapsulate the issue.  The tribunal found that S’s tendency to physical abuse of other persons “was undoubtedly as a result of her autism.”  In other words the tendency arose out of an impairment (autism) which was itself protected under section 6 of the 2010 Act. 

61.      It was the Appellants’ case that in those circumstances, adopting a purposive approach to legislative interpretation, S’s conduct was not such as to remove her from the protection of section 6, as regulation 4(1) applies only to “freestanding” conditions and not to consequential symptoms of an already protected impairment. 

62.      The Respondents argued that the circumstances fall squarely within regulation 4(1), and so in finding that S’s tendency to physical abuse was excluded from the definition of disability under section 6, the tribunal did not err in law.  The ordinary meaning of the language, submitted Mr. Sheldon, fits with a proper understanding of the statutory scheme and its purpose, which is that protection should not be provided under disability discrimination legislation for “anti-social or criminal-like conduct,” whatever its source.

63.      The parties developed their submissions under a number of different headings.  We will address each in turn.

Case law

64.      This issue was considered by the Administrative Court in X School.  Whilst the relevant provisions considered in that case fell under section 1 of and Schedule 1 to the DDA and the 1996 Regulations, the provisions were materially identically worded. 

65.      The appellant school governing body appealed against a decision of the tribunal that a ten year old pupil (“J”) had been the subject of disability discrimination.  J had Attention Deficit and Hyperactivity Disorder (“ADHD”).  The school encountered a number of difficulties with his behaviour, culminating in his exclusion from school on 6 November 2007 following an incident when he had physically assaulted a member of staff.  On that occasion he had been disruptive in class, had been asked to stop, had struggled to get free from his hand being held and had scratched the arm of the member of staff.  J’s parents brought proceedings before the tribunal.  There were a number of allegations of unfavourable treatment of J, consisting of both internal and external exclusions, but with regard to all except one the tribunal concluded either that the treatment had not been for a reason related to J’s disability or that it had not been an exclusion but rather it had been a decision by his parents to withdraw J.  However, with regard to the exclusion on 6 November 2007 the tribunal considered that the escalation of events, resulting in J scratching the member of staff, had been related to his disability, and had he not displayed such “behavioural difficulties” he would not have been excluded from the school.  The tribunal decided that the governing body had failed to make a reasonable adjustment by failing to enlist the advice and support of a specialist team to implement measures for the management of pupils with ADHD, and so it had unlawfully discriminated against J in excluding him from the school on 6 November 2007. 

66.      The governing body’s sole ground of appeal was that the tribunal had erred in law in concluding that there had been a failure to make a reasonable adjustment for J’s ADHD, because the only aspect of his ADHD in relation to which the tribunal had ruled that there had been a failure to make a reasonable adjustment was his tendency to physical abuse of other persons, and regulation 4(1)(c) provided that a tendency to physical abuse of other persons was not to be treated as a disability for the purposes of the DDA.  J’s parents, however, argued that a tendency to physical abuse of other persons only counted as an excluded condition for the purposes of what is now regulation 4(1)(c) if it was a free-standing condition, and was not excluded from the protection of the DDA if the tendency was consequential to symptoms or manifestation of an already protected impairment, namely ADHD. 

67.      Lloyd Jones J considered that:

“39. The definitions of “disability” and “disabled person” in section 1 of the 1995 Act require a physical or mental impairment which has certain characteristics, namely a substantial and long term adverse affect on the ability to carry out normal day to day activities. Paragraph 1 of Schedule 1 makes clear that the legislation contemplates a need to treat certain conditions as not amounting to impairments for this purpose. Certain conditions which might otherwise be considered impairments are not to enjoy the protection against discrimination conferred by the Act.

40. Regulation 4(1) excludes from the protection of the Act five propensities to behave in a particular way, each of which is antisocial and unacceptable. Conduct of this kind would, in each case, normally constitute a criminal offence. Each is to be treated as not amounting to an impairment for this purpose.

41. Each is described in paragraph 4(1) as a “condition”. On behalf of the Respondents Mr. Allen submits that the word “condition” is in each case intended to describe a free-standing condition but is not intended to extend to symptoms or manifestations of an underlying impairment. However, I consider that the word “condition” used in its natural meaning is wide enough to include both categories. Just as the word “impairment” in Schedule 1 to this Act is appropriate to include both an illness and its manifestations (see College of Ripon and York St. John v. Hobbs [2002] IRLR 185, 188, para. 32; McNicol v. Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 at paras. 17, 18), I consider that “condition” is not as a matter of ordinary usage limited in the way suggested by the Respondent. To my mind the use of the word “condition” does not limit each of the tendencies identified in the following sub-paragraphs to independent, free-standing conditions. The words defining the excluded categories are general.”

68.      At paragraph 48 Lloyd Jones J’s conclusion was that:

“having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment.”

69.      Both parties recognised that whilst the judgment in X School is not strictly binding upon us, we would normally be expected to follow it unless we were of the view that it is clearly wrong.  Perhaps not surprisingly, Mr. Sheldon urged us to follow it, and Ms. Jolly submitted that we should not.  It is, therefore, necessary for us to consider X School in a little more detail. 

70.      Lloyd Jones J gave consideration to a number of decisions relating to disability discrimination in the employment field.  They were also cited to us.  We are unable to accept Ms. Jolly’s submissions that employment cases are not helpful in the context of an education claim.  We have already rejected one basis upon which this submission was made, namely that regulation 4(1) does not apply to children.  Further, the regulation applies to all the contexts in which substantive non-discrimination duties arise, including employment and education alike.  Accordingly, we felt it right that we should have regard to the decisions, whilst recognising that, with the exception of McNicol v Balfour Beatty Rail Maintenance Limited [2002] EWCA 1074, [2002] ICR 1498 (a decision of the Court of Appeal) they are decisions of the Employment Appeal Tribunal (“EAT”) and so not binding on us.

71.       In McNicol the Court of Appeal held that an impairment may either result from an illness or may consist of the illness itself.  Mummery LJ endorsed the view of the EAT in College of Ripon & York & St. John v Hobbs [2002] IRLR 185 at paragraph 32:

“Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1, paragraph 1(1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate… ”  

72.      We note that, unlike the DDA, the 2010 Act does not require a mental impairment to be something that results from an illness.  However, in our judgment that does not detract from the reasoning of McNicol.  Neither party submitted that it did.  In X School Lloyd Jones J noted that:

“27… Although the court was not [in McNicol] concerned with the question of an excluded impairment, it accepts in a more general context that an impairment may be either an illness or something which results from an illness.  No distinction is drawn between an underlying disability and its manifestations or effects.”

73.      Power v Panasonic UK Limited [2003] IRLR 151 was also considered by Lloyd Jones J.  It is a decision of the EAT concerning the application of regulation 3 of the 1996 Regulations, which applies to addictions.  Recorder Slade QC observed:

“12… It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering is caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such as disability.”

74.      Mr. Sheldon submitted that Power supported the proposition that it is irrelevant, for the purposes of determining whether a “condition” constitutes an “impairment,” how the condition came about.  That was certainly the conclusion of Lloyd Jones J, who went on to observe that on that basis it should be irrelevant whether an excluded condition was caused by a protected impairment.  He observed that: 

“24 … If this approach is correct it undermines the distinction Mr. Allen seeks to draw between a free standing condition comprising one or other of the various tendencies identified in Regulation 4(1) and a state of affairs where the tendency is a symptom or manifestation of, i.e. caused by, an underlying disability which is protected under the legislative scheme.”

75.      Thus, Mr. Sheldon submitted, the effect of McNicol and Power was that one must concentrate on the conduct, and whether it revealed a tendency to behave in a way provided for under regulation 4(1).  If it did, then it fell within the terms of the regulation, irrespective of whether or not it was a manifestation of an impairment which would otherwise be protected.

76.      There are two conflicting decisions of the EAT directly on the issue.  In Murray v Newham Citizens Advice Bureau Limited (No. 2) [2003] ICR 643 Mr. Murray had paranoid schizophrenia (a mental impairment which was a disability under section 1(1) of the DDA), a consequence of which was a tendency to violence.  He applied to work as a volunteer at Newham CAB.  At a pre-selection meeting he informed them that he had been in prison for stabbing a neighbour with a knife.  The CAB did not offer him the role as they were concerned that he might be placed under stress and react in a violent way.  The EAT held that the word “conditions” in the materially identically worded equivalent of paragraph 1 of Schedule 1 to the 2010 Act referred only to free-standing conditions and not those that were a direct consequence of a physical or mental impairment.  Thus, Mr. Murray’s tendency to violence, being a manifestation of his disability, fell within the protection of the DDA.  The EAT stated:

“14 … Parliament could have excluded conditions such as those provided for in Regulation 4(1) of the 1996 Regulations from being treated as part of a disabled person's disability, so far as the protection of the Act was concerned; it did not. Parliament could also have provided that discrimination against a disabled person, by reason of his having a condition specified by the 1996 Regulations, was outwith the protection of the Act. Again, it did not do so. In our opinion, the language of the provisions to which we have referred is clear. “Conditions” within the meaning of paragraph 1(2)(b) of Schedule 1 to the Act refer to free-standing conditions, and not to those conditions that are the direct consequences of a physical or mental impairment within the meaning of section 1(1) . The applicant's tendency to violence was found by the employment tribunal to be a consequence of the well-recognised mental illness of paranoid schizophrenia.” 

77.      In Edmund Nuttall Limited v Butterfield [2006] ICR 77 Mr. Butterfield committed offences of indecent exposure.  He was subsequently dismissed by his employers for reasons related to the offences.  He brought a claim for (amongst others) disability discrimination.  The Employment Tribunal found that Mr. Butterfield had committed the offences of indecent exposure because he had a mental illness, depression, that his employer had treated him less favourably for a reason relating to his disability, and had not shown that the treatment of him was justified.  The EAT allowed the employer’s appeal.  It concluded:

“29. We do not find the relationship between legitimate impairment and excluded condition provided for in the [1995 Act], read with the 1996 Regulations, a comfortable one. Having considered the earlier cases and the submissions received from Counsel, our analysis, on the facts as found by this Tribunal, is as follows:

(1) We respectfully agree with the appeal tribunal approach in Power that the question is not what caused the legitimate impairment.

(2) We are not persuaded that the concept of a "free-standing condition" is helpful: c.f. Murray.

(3) It is plain that a claimant may have both a legitimate impairment and an excluded condition. That was the factual position in both Power and Murray and in the present case.

(4) In these circumstances, it seems to us that the critical question is one of causation. What was the reason for the less favourable treatment, here dismissal of the claimant?

(5) If the reason was the legitimate impairment, then prima facie discrimination, subject to the defence of justification, is made out; if the reason was the excluded condition and not the legitimate impairment, then the claim fails by reason of his disability.

(6) That distinction may be easily stated. However, it does not deal with the case where both the legitimate impairment and the excluded condition form the employer's reason for the less favourable treatment. In those circumstances, we find assistance in the approach of Mummery P, consistent with high authority, in O'Neill v St Thomas More School [1996] IRLR 372, in relation to dismissal on the grounds of pregnancy. The then President held in that case that it was not necessary for the claimant to show that pregnancy was the only reason for her dismissal, provided it was an effective cause. Reverting to the wording of section 5(1)(a) of the 1995 Act, the claimant must show that the less favourable treatment was for a reason related to the claimant's disability. Thus, in our judgement, focusing on the employer's reason for the less favourable treatment, if the legitimate impairment was a reason and thus an effective cause of the less favourable treatment, then prima facie discrimination is made out notwithstanding that the excluded condition also forms part of the employer's reason for that treatment.”

78.      In X School Lloyd Jones J preferred the analysis in Butterfield to that in Murray (which was decided without Power or McNicol having been cited to it), observing that he found the reasoning in Murray difficult to follow:

“29. … The fact that Parliament has excluded certain conditions from being an impairment as opposed to excluding them from being a disability to which an impairment may give rise is not a matter to which I would attach any particular significance. Furthermore, I am unable to see how the language of the provisions gives rise to a clear conclusion that “conditions” refers only to free standing conditions.”

79.      In seeking to persuade us that both Butterfield and X School were wrongly decided, and that we should prefer the reasoning of Murray, Ms. Jolly submitted that the consequence of the latter was in line with the purposive interpretation which the legislation ought to be given. 

80.      We are unable to accept Ms. Jolly’s submission that Butterfield should not have been followed on the ground that it failed to deal with the critical issue as to what happens, particularly in education cases, when it is the failure to carry out reasonable adjustments that triggers a symptom of a protected condition that may on its own have been excluded.  As we have already observed, regulation 4 applies in contexts other than the field of education.  As Mr. Sheldon pointed out, the “special educational needs” duties imposed under the provisions of the Education Act 1996 (now the Children and Families Act 2014) continue to apply where a child has behavioural difficulties which hinder their learning, and which may manifest themselves in violent behaviour.  If those difficulties are not addressed, the remedy lies in enforcement of the Statement of Special Educational Needs (now the “EHC Plan”).  It does not, however, follow or mean that a sanction is provided by a claim under the disability discrimination legislation.

81.      Furthermore, contrary to the submission of Ms. Jolly, our view is that Butterfield did not confuse the issue of causation with the statutory definition of disability.  Rather, it correctly identified at what point the relevant causal issue arose. 

82.      Ms. Jolly put forward further reasons in support of her submission that we should find that X School was wrongly decided.  She argued that Lloyd Jones J, in making very short shrift of the submissions which had been made to him on the CRPD, considered at paragraph 59 of his judgment (dated 23 July 2009)  that a relevant factor was that the Convention had not been ratified by the United Kingdom.  In fact it had been ratified on 8 June 2009.  However, we agree with Mr. Sheldon’s submission that Lloyd Jones J also made it abundantly clear that in any case the provisions of the Convention did not lend any support to the reading of regulation 4 proposed by Ms. Jolly.  We agree, and see no reason to distinguish X School on this ground.

83.      Lloyd Jones J’s decision to proceed on the basis of evidence that each of the impairments identified in regulation 4(1) was capable of existing either as a free-standing condition or as a derivative symptom from another disorder was criticised by Ms. Jolly.  She maintained that that feature should make no difference to the interpretation of the regulation.  Although we confess to some difficulty in following this part of the learned judge’s reasoning, we are nevertheless satisfied that the conclusion which he reached was amply justified on the other bases relied on by him, in particular the analysis of the authorities.  We respectfully consider that there are no material flaws in the reasoning of Lloyd Jones J, and all relevant matters had been brought to his attention.  Whilst we are not strictly bound to do so, we reach a similar conclusion on this point.  We note that a similar view was taken by Upper Tribunal Judge Williams in P v Governing Body of a Primary School [2013] UKUT 154 (AAC), [2013] ELR 497 and we endorse it.

“Tacit legislation”

84.      The relevant provisions of the 2010 Act and Regulations (which, as we have already observed are materially identical to the provisions in section 1 of and Schedule to 1 to the DDA and regulation 4(1) of the 1996 Regulations) were enacted after the decision in X School. 

85.      There is a presumption that in enacting legislation Parliament has adopted the meaning given by the courts.  The principle was established in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 411:

“It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.”

86.      The presumption was expressed in the following terms by the author of Bennion on Statutory Interpretation, 6^th edition, page 661, and was cited with approval by the Divisional Court in R (Woolas) v Parliamentary Election Court [2012] QB 1 at [86] :

“Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions.  If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it.”

87.      Neither party sought to argue that the presumption applies only to primary and not secondary legislation, and we proceed on the basis that it applies to both.  We recognise that the presumption is a rebuttable one, but to our minds the answer is clear.  This is not (for example) a case where there have been a myriad of decisions concerning the interpretation of the relevant provisions of the legislation, or where there have been a number of re-enactments in differing terms.  Rather, the issue is a comparatively straightforward one of interpretation of provisions which have been re-enacted in materially identical form, and which have been interpreted by the Queen’s Bench Division on one occasion.  Indeed, we note in passing that the words of the Guidance issued under the 2010 Act differ from those of the one issued under the DDA, and may appear to reflect the language used by Lloyd Jones J in X School.  Had Parliament intended, in 2010, in the light of X School, to provide that the tendencies excluded by regulation 4(1) applied only to free-standing conditions, we would have expected that to have been made clear in explicit terms in the enabling provisions and/or subordinate legislation.  On the contrary, the relevant provisions were simply re-enacted in all material respects, without more.

88.      Our view is that the presumption should be applied in this case to the present point, which was part of the ratio and, having been the subject of detailed argument, had in our view received a “clear judicial interpretation.”

 

 

 

The Guidance

89.      The Equality Act 2010 (Guidance on the Definition of Disability) Appointed Day Order 2011 (SI 2011/1159) appointed 1 May 2011 as the day for the coming into force of the Guidance.  The Explanatory Note to that Order explains that:

“[T]he Guidance also reflects developments in the relevant case law since the guidance … issued by the Secretary of State under the now repealed Disability Discrimination Act 1995 on 29^th March 2006.”

90.      We have cited the relevant provisions of the Guidance at [25] – [26] above.  Paragraph A13 thereof is wholly consistent with the judgment in X School, a part of “relevant case law” which had been decided since the previous guidance had been issued.  It strongly supports the Respondent’s case.

91.      It is common ground that the wording of statutory guidance is not binding as to interpretation of statutory provisions, but it may, however, be a persuasive guide (see, for example, Boyle v SCA Packaging Limited (HL) (NI) [2009] ICR 1056). 

92.      It is our view that the Guidance does not contain a misstatement or misapplication of what Parliament enacted.  On the contrary, we find that it accurately depicts precisely what Parliament intended, and accords with our interpretation of regulation 4(1).  There is, therefore, no reason for us to disregard the Guidance.

Parliamentary statements

93.      Ms. Jolly invited us to have regard to the Ministerial statements referred to above as an aid to the interpretation of the legislation in this context.  We have already set out why we are of the view that it is neither legitimate nor helpful to consider the statements when determining whether regulation 4(1) applies to children.  We are of the same view in this context also. 

94.      Contrary to Ms. Jolly’s submission, repeated references to “conditions” in the Ministerial statements do not, in our judgment, indicate that the intention was to exclude only a free-standing impairment and not the manifestations of an already protected impairment.  The regulation concerns particular behaviours (setting fire, stealing, physical or sexual abuse, etc.) whereas the statements refer to disorders or conditions – “kleptomania, pyromania, paedophilia and personality disorders including psychopathic disorders.”  We acknowledge that whilst it might be said that the behaviour inherent in kleptomania or pyromania is reflected in the regulation, there is no similar reflection in relation to paedophilia or personality disorder (for example “sexual abuse” may or may not be directed against children).  Indeed, whilst a personality disorder may result in behaviour that falls within the exclusions of the regulation, it may also involve a range of other impairments or manifestations of impairments.  It is only to the extent that such disorders manifest themselves in the tendencies identified in the regulation that they are excluded.  We accordingly conclude that the statements do not sustain the reading of the regulation put forward by Ms. Jolly.

Explanatory note to the 1996 Regulations

95.      Ms. Jolly drew our attention to the Explanatory Note to the 1996 Regulations:

“… These Regulations … have the effect of excluding from the scope of the definition [of disability]:

…

(b) certain personality disorders (regulation 4(1))…”

96.      Mr. Sheldon submitted that there was no indication in the Explanatory Note that the regulation excluded “only” certain personality disorders.  In any case, we find the Explanatory Note to be of little assistance, particularly as it was not replicated in the Explanatory Note to the 2010 Regulations, which simply provides that :

“Regulation 4 excludes certain conditions from being impairments for the purposes of the Act.”

Policy considerations

97.      Ms. Jolly sought to introduce a letter dated 12 February 2014 from Ms. Janet Morgan of the Government Equalities Office.  In recognising that autism spectrum disorders are an example of developmental impairments from which a disability can arise, she wrote:

“The policy rationale behind these exclusions is that there must be a common sense approach when defining disability and who is a disabled person.  For disability discrimination legislation to be credible, it should only provide protection for people who are disabled in the generally understood sense of the term.”

98.      Following this policy rationale, Ms. Jolly submitted that those with autism and similar disorders would be expected to be considered disabled in the generally understood sense of the term, and thus it would appear that there was no intention to exclude such conditions from the protection of the legislation.

99.      Our task in interpreting the legislation cannot be swayed by the consideration of any such policy considerations.  The letter has no status as an aid to statutory construction.  Further, we agree with Mr. Sheldon’s submission that the letter does not actually contradict the interpretation of regulation 4(1) proposed by him and applied by the tribunal.  Indeed, an insuperable obstacle which Ms. Jolly’s submission could not overcome was Ms. Morgan’s reference to the following immediately after the words cited above:

“Exclusions from the definition of disability are covered on pages 11 and 12 of the Statutory Guidance…”

100.   Paragraph A13, and the example of the young man with ADHD set out above, appear at page 12 of the Guidance.

Our conclusions

101.   Having carefully considered the parties’ submissions under each of the headings set out above, and for the reasons given in respect of them, we conclude that regulation 4(1) does apply where the conditions specified therein arise in consequence of an impairment that is already protected under the provisions of section 6 of the 2010 Act. 

 

H. What is the meaning of “a tendency to physical … abuse of other persons” under regulation 4(1)(c) of the 2010 Regulations?

102.   The grant of permission to appeal to the Upper Tribunal separated this issue into two discrete areas: (a) did S show a tendency to physical abuse? Should the tribunal have made findings on whether these were isolated incidents or something more general; and (b) was what S did abuse?  Is hitting someone an abuse for this purpose or is something more required?  The parties’ submissions, accordingly, sought to define “tendency” and “physical abuse” separately.

103.   However, on reflection, we are of the view that the phrase “a tendency to physical or sexual abuse of other persons” must be considered in the round (although, of course, we are not concerned with sexual abuse in the present case).  Neither the 2010 Act nor the 2010 Regulations define what is meant by the phrase or any of its constituent parts.  It was considered in X School, and P v Governing Body of a Primary School (ante).

104.   It is right to say that in X School there was no attempt to define “tendency to physical abuse.”  The parties’ respective stances meant that it was not necessary to do so.  The governing body did not challenge the tribunal’s findings.  J’s parents submitted that the tribunal’s finding of “behavioural difficulties” indicated that, though they accepted it could have done so, it had not characterised J’s conduct on 6 November 2007 as a tendency to physical abuse, when, in contrast, it had so described J’s conduct in relation to an incident on 13 June 2007 in which he had attacked a child.  In respect of that incident, however, the tribunal had found that it did not have sufficient evidence to conclude that the treatment was for a reason relating to J’s disability, and it had gone on to note that J’s conduct had arisen from a tendency to physical violence and was, therefore, “exempted from the jurisdiction of the Act.” Lloyd Jones J (at paragraph 63) confessed that he found it puzzling why the tribunal had concluded that J’s conduct on 13 June 2007 arose from a “tendency to physical violence,” but did not address this point in relation to the conduct of 6 November 2007.  However, he decided that there was no suggestion that the tribunal had concluded that the conduct on 6 November 2007 fell short of conduct arising from a tendency to physical violence, and he could see no reason for drawing such a distinction between the two instances on the basis of the facts.  They were, he said, similar in kind.  Nor did the tribunal’s description of the later incident as “behavioural difficulties” support the parents’ view.

105.   It was against this background that Lloyd Jones J (at paragraph 64), having rejected the attempted distinction based on the tribunal’s finding of a tendency to physical abuse in respect of the June incident, but not that in November, observed that though the assaults “came low in the scale of seriousness, they are fairly to be regarded in the circumstances of the case as arising from a tendency to physical abuse of others,” and concluded that the conduct of the child amounted to a tendency to physical abuse of other persons within the meaning of regulation 4(1)(c).  On the basis of the submissions before him there was no need for the learned judge to offer any definition of the provision.

106.   In P the child, who had Asperger Syndrome (“ASD”) and ADHD, had kicked a teaching assistant several times, resulting in a swollen leg and broken skin, and causing the teaching assistant to be very distressed.  The parties had diametrically opposed views on the proper interpretation of the word “abuse.” Counsel for the child’s parents argued that “abuse” connoted conduct involving the intention of inflicting pain, whilst Counsel for the governing body submitted that “abuse” was conterminous with “violence”. As the issue would be before the First-tier Tribunal when rehearing the appeal, Judge Williams set out his understanding of the point.  He made the following observations:

“70. I consider that the phrase “physical abuse” must be read as a whole (and together, although it is of course not relevant in this case, with the further words “and sexual”). That phraseology distinguishes this from, for example, verbal abuse which is not in my view within the scope of this provision (although it was within the School’s behaviour policy). Beyond that, I agree with Miss Scolding that this is language that is not chosen to import any formal or specific meaning. These phrases are to be applied under the Act to everyone who may be involved in alleged discrimination in any way. They are not specific to children or to education. So they should be interpreted as ordinary words. I resist the temptation to adopt any further definition. I am satisfied here that the events described in the evidence as actions of [the child] can be found as fact to be, on the evidence before the First-tier Tribunal, physical abuse and that the extent of those actions can properly be described on the evidence as showing a tendency to physical abuse. I therefore consider that the tribunal could on the evidence identify those actions as showing that [the child] had the condition of the tendency of physical abuse of others regardless of any finding or assumption that the only reason why [the child] engaged in those activities was the effect on [the child] of the ADHD and ASD.”

107.   Ms. Jolly invited us to conclude that the observations of Lloyd Jones J and Judge Williams set out above could not be sustained.  It was Mr. Sheldon’s submission that the conduct in each case was held to amount to “a tendency to physical .. abuse of other persons,” and was, on any view, of less severity than the conduct of S in the present case. Given the detailed submissions made to us as to the interpretation of “tendency to physical … abuse” we are of the view that the issue merits further consideration.

108.   We begin by considering whether the presumption of tacit legislation (referred to at [84–88] above) applies in relation to the meaning of “tendency to physical or sexual abuse of other persons.”  As we have observed, the presumption may apply where there has been a “clear judicial interpretation” of a phrase of doubtful meaning, and Parliament has refrained from taking a subsequent opportunity to alter the effect of that judicial interpretation.  We have already observed that Lloyd Jones J did not attempt to define the phrase in X School.  It follows, in our judgment, that, prior to the 2010 Act and Regulations, there was no “clear judicial interpretation” of regulation 4(1)(c) which could come anywhere near supporting the presumption of tacit legislation.

109.   Relying upon documents including the Department of Health guidance “No Secrets” and a Home Office Circular issued in 2013 which set out a new definition for domestic violence and abuse, Ms. Jolly suggested that “abuse”, whether physical or sexual, must be understood in the context of an imbalance of power, where one party is dominant or misuses his or her position to the detriment of the abused person.  We must say that we found none of these documents to be of any assistance to us, even if they were admissible as an aid to construction.  They each related to a completely different context, and were of no relevance.

110.   It is no coincidence, Ms. Jolly argued, that the exclusion of a tendency to abuse is referred to in the terms of both physical and sexual in the same subsection, for it illustrates the seriousness, level, intention, coercion, control and power which an abuser has over his or her victim.  She submitted that a “tendency to physical abuse” must represent a real and significant element of behaviour which is of a particularly high severity or intensity, and which has a high or, at least, likely frequency of taking place over an extended period of time.  It must, she submitted, be of a level which would constitute criminal conduct and so would not include  -  without more (for example, very particular medical evidence) - the actions of a child who is lashing out as a result of frustrations caused by a complex disability.

111.   Ms. Jolly further submitted that even if we were to reject her primary case that regulation 4(1) does not apply to children under the age of 18 (and for the reasons given under heading “F” above we have done so), nevertheless we should accept the premise that most children would not manifest the “tendencies” identified in the regulation, because the listed behaviours represent an ordinary part of growing up and generally disappear once the child has received appropriate guidance.

112.   Mr. Sheldon’s submission was that the requirement for the regulation to apply was that a person is disposed to or is apt or inclined to act in such a way which physically violates, maltreats or injures another person.

113.   As to “tendency to physical … abuse,” we take the approach explained by Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 (also reported as R(DLA) 7/03):

“24.     Lord Reid [in Brutus v Cozens [1973] AC 854, 861] was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator's meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.” 

114.   In the circumstances, the words “tendency to physical … abuse” take their meaning from their context.  It would be inappropriate for us to attempt to define them.  That said, we are, however, of the view that tribunals would be assisted by guidance on how to approach the matter.  To that extent, we are continuing where Lloyd Jones J and Judge Williams left off. 

115.   The issue is ultimately one of fact, and is eminently appropriate for consideration by a tribunal.  In addressing whether a person has “a tendency to physical … abuse of other persons” a tribunal must consider all the circumstances of each individual case.  Against this background, we give the following guidance.

116.   First, we note that Parliament has chosen not to use the phrase “physical violence.”  We infer that there must always be an element of violent conduct.  However, that on its own may not necessarily be sufficient to meet the definition.  The greater the level of violence, the more readily it will fall within the meaning of “physical abuse.”

117.   Secondly, there is no requirement for any knowledge on the part of the perpetrator that what they are doing is wrong. This is because the regulation is concerned with the manifestation of behaviour.  We remind ourselves of the terms of paragraph 7.3 of the Explanatory Memorandum to the 2010 Regulations: The tendencies in regulation 4(1) are excluded for public policy reasons, “for example to avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity.”  However, if the conduct complained of constituted something akin to a spasmodic reflex, in our judgment it would not meet the terms of the definition.

118.   Thirdly, the existence of some sort of misuse of power or coercion may lead to the conclusion that a much lower degree of violence than would otherwise fall within the terms of the regulation would suffice.  Conversely, a finding of physical abuse in the absence of such factors would be likely to require careful justification.  

119.   Fourthly, whilst children are, as a matter of law, included within the ambit of regulation 4(1)(c), nevertheless as we have already observed, the stage of a child’s development is a factor which will fall to be considered in deciding whether or not that particular child has a condition so as to bring it within the remit of the regulation at all.  If the child does have such a condition, then insofar as the child’s conduct manifests a tendency to physical abuse of other persons it will fall within the terms of the regulation.

120.   Finally, it is not necessary for a tendency to physical abuse to be manifested frequently or regularly.  It may be that the tendency is only displayed in response to certain trigger events, but that does not mean that it is not present at other times.  In principle, in some circumstances such a tendency may be revealed in a one-off incident, so long as there is evidence of a tendency to physical abuse in the form of (for example) medical evidence.  The regulation is less concerned with whether a particular incident constitutes actual abuse, but rather it focusses on whether the incident is indicative of a tendency to abuse.

121.   In summary, a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above.  In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school.  However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.”

 

I. Did the tribunal err in law?

122.   The tribunal’s consideration of whether S’s behaviour constituted “a tendency to physical … abuse of other persons” is set out under heading “E” above.  The extract from the tribunal’s statement of reasons at [34] above does not indicate, perhaps understandably, that there was any real consideration of what “physical abuse” within “tendency to physical abuse” might mean, rather than focussing on the “tendency.”  It did not consider the matters referred to in [116–120] above.  To that extent, it erred in law, and on that basis we set aside its decision.

J. Our decision

123.   This is plainly a case in which it is appropriate for us to re-make the decision of the tribunal.  The tribunal’s finding that S was a disabled person within the meaning of section 6 of the 2010 Act was not challenged, and we adopt it. As we have noted, the Appellants did not materially dispute what S did, the details of which are set out under heading “C” above.  We have taken those details from the incident reports which were contained in the bundle of documents.  In view of the conclusion which we have reached as to the correct approach to “tendency to physical abuse” we have found it necessary to make more specific findings than did the tribunal, based on the evidence before us.

124.   In considering whether S had a tendency to physical abuse we must take into account and weigh all the available evidence.  This includes not only the evidence which was before the tribunal, but also the new evidence which the Appellants sought to adduce at the hearing before us.  We indicated at the outset that we would not consider that evidence in determining whether or not the tribunal had erred in law, but if we allowed the appeal and decided to substitute our own decision for that of the tribunal we would have regard to it when coming to our decision on the facts. 

125.   There are three new pieces of evidence, namely: (a) a Positive Behaviour Planning Sheet dated October 2013, (b) the most recent Occupational Therapy Report on S, and (c) her most recent Statement of Special Educational Needs dated 14 May 2014.  Ms. Jolly submitted that each document cast light on the question over whether or not S had a tendency to physical abuse of other persons.  The Positive Behaviour Planning Sheet, in particular, indicates that the risk of injury to others is low, in terms of severity/intensity, frequency/likelihood and overall level of risk.  The Occupational Therapy Report does not deal with any perceived risk of violence, and the Statement of Special Educational Needs does not indicate or describe any suggestion of a tendency to physical abuse.

126.   Ms. Jolly relied on these documents to support her submission that the relevant incidents were isolated ones that occurred over a short period of time which started suddenly and ended almost as suddenly, and so could not constitute “a tendency.”  Whilst we agree that the incidents occurred over a fixed period of time, we prefer Mr. Sheldon’s submission that they nevertheless indicate that S had a tendency to physical abuse, in that it is something that she had a tendency to do in certain circumstances.

127.   We must weigh in the balance all relevant factors.  On the basis of what we said at [117] above, even if S’s violent conduct constituted a form of “frustrated lashing out” triggered by particular stresses, we are satisfied that the conduct constituted evidence of S’s condition of a tendency to physical abuse of other persons. 

128.   We have it in mind that S was only six years old at the time of the incidents.  Further, the fact that there was no suggestion of any power abuse or coercion on her part means, as we observed at [118] above, that a finding of physical abuse will be likely to require careful justification.  In our view there is such justification in this case.

129.   There are a number of factors which support a finding that S did have a tendency to physical abuse of other persons.  We pay regard to the significant element of violent conduct on the part of S.  What she did could in no way be described as being akin to a spasmodic reflex but rather, on each occasion, constituted attacks, frequently sustained over seven month period, on members of staff and/or other children.  These included, but were not limited to: kicking  and hitting members of staff, hitting a member of staff round the head with a schoolbag, slapping in the face and punching members of staff (including punching on the jaw, in the throat, on the chest and in the stomach), thumping clenched fists into a male member of staff’s groin, throwing a book at a member of staff hitting him on the chest, kicking and hitting children, hitting a child in the face, and pinching a child.  In summary, there was the repeated use of relatively serious violence against other people on a number of occasions.

130.   Having given careful consideration to all the matters, in our view the degree of sustained violence significantly outweighs the factors which suggest that there was no tendency to physical abuse of other persons on the part of S.  Thus, we are satisfied, on a balance of probabilities, that S’s behaviour manifested a condition of a tendency to physical abuse of other persons.

131.   Even though that tendency arose in consequence of S’s autism, regulation 4(1)(c) of the 2010 Regulations applies, and so, in respect of the behaviour for which S received the exclusions, which was caused by that tendency and which gives rise to the claim under section 15 of the 2010 Act, S is not to be treated as having an impairment under the terms of section 6 of the Act.  The claim under section 15 is, accordingly, dismissed.

132.   For the sake of completeness we should add that permission to appeal was not granted in relation to the tribunal’s findings regarding the claim under sections 20 and 21 of the 2010 Act insofar as S’s “non-excluded” impairments are concerned.  Those were findings which we adopt, and the claim under sections 20 and 21 is also dismissed. 

 

Edward Jacobs

Judge of the Upper Tribunal

 

Christopher Ward

Judge of the Upper Tribunal

 

Alison Rowley

Judge of the Upper Tribunal

6 January 2015 (Signed on the original)
Appendix

Relevant provisions of the UN Convention on the Rights of Persons with Disabilities.

“Article 7 – Children with disabilities

1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.”

 

“Article 24 – Education

1.States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to:

a.    The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;

b.    The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;

c.    Enabling persons with disabilities to participate effectively in a free society.

2. In realizing this right, States Parties shall ensure that:

a.    Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;

b.    Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;

c.    Reasonable accommodation of the individual’s requirements is provided;

d.    Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;

e.    Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including:

a.    Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;

b.    Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf community;

c.    Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.

4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.”

 

 

Relevant provisions of the UN Convention on the Rights of the Child.

 

“Article 23

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.

2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

4…”

 

“Article 28

1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

(c) Make higher education accessible to all on the basis of capacity by every appropriate means;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

2…”

 

“Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2. No part of the present article or Article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.”