Upper Tribunal (Administrative Appeals Chamber)

C & C v The Governing Body of a School, The Secretary of State for Education (First Interested Party) and The National Autistic Society (Second Interested Party) (SEN) (Disability discrimination in schools) [2018] UKUT 269 (AAC) (8 August 2018)

Equality Act 2010 - Regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 - `tendency to physical abuse' - whether current interpretation is compatible with Article 14 read with Article 2 of Protocol 1 of the European Convention on Human Rights

L is a child and has autism, anxiety and Pathological Demand Avoidance. The appellants brought a claim in the First-tier Tribunal under the Equality Act 2010 complaining of discrimination on the grounds of L's disability by the respondent, one of which concerned L's fixed term exclusion from the school on 25 February 2016 for a period of one and a half days. The reason given for the exclusion was L's aggressive behaviour, which included incidents involving other pupils and a teaching assistant. The F-tT dismissed this part of the claim because L had been given the exclusion as a result of his `tendency to physical abuse' and so, pursuant to the provisions of regulation 4(1)(c) of the Equality Act (Disability) Regulations 2010, was to be treated as not falling within the definition of `disability'. The Ft-T rejected the appellant's submission that regulation 4(1)(c) should be read down or disapplied so as to avoid breach of Article 14 of the European Convention on Human Rights (ECHR). The appellants appealed to the Upper Tribunal.

There was no dispute that the issue was within the scope or ambit of Article 2 of Protocol 1 to the ECHR (A2P1), or that L had an appropriate status for the purposes of Article 14 ECHR.

Held, allowing the appeal, setting aside the decision of the Ft-T and re-making it, that: 1. Article 14 of the ECHR is not a freestanding provision. It is to be considered in conjunction with one or more of the substantive rights and freedoms safeguarded elsewhere in the Convention, the relevant one here being A2P1 which provides that `no person shall be denied the right to education…"' (paragraph 31).

1. there was difference in treatment between children with L's status and others in an analogous situation; (paragraphs 32-37).

2. the Secretary of State had failed to justify maintaining in force a provision which excluded from the ambit of protection of the Equality Act, children whose behaviour in school was a manifestation of the very condition which called for special educational provision to be made for them. (paragraph 90).

3. In the context of education, regulation 4(1)(c) violated the Convention right of children with a recognised condition that was more likely to result in a `tendency to physical abuse' not to be discriminated against under Article 14 read in conjunction with A2P1 (paragraph 93).

4. Whether regulation 4(1)(c) was read down under section 3 of the Human Rights Act 1998 or whether it was disapplied, given the F-tT's findings of fact, L met the definition of a disabled person for the purposes of section 6 of the Equality Act 2010 (paragraph 101).

5. The decision under appeal was re-made in the terms of a confidential consent order agreed by the appellants and respondent.

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