Schools’ right to exclude pupils over behaviour linked to their disability is facing a legal challenge on discrimination grounds.

If successful the test case, due to be heard this week, could have major implications for school exclusion policies. Figures show that children with special educational needs are disproportionately excluded from mainstream education.

The case has been brought by the Derbyshire family of a thirteen year old boy with autism, child ‘L’, who was excluded from school due to behaviour linked to his autism, and is being opposed by the Department for Education.

Lawyers say the parents, are seeking to overturn a rule that allows children to lose protection from  discrimination under equality laws because their challenging behaviour is said to be ‘a tendency to physically abuse’, even if this is a direct result of the child’s condition.

This means children like L are not treated as ‘disabled’ in relation to physically aggressive behaviour.

A team of lawyers will argue in the Upper Tribunal that this discriminates against disabled children with conditions such as autism that are more likely to result in challenging behaviour.  

Currently, the lack of protection under the Equality Act means that schools are not required to justify that a decision to exclude disabled children in these circumstances is proportionate, or that they have made reasonable adjustments to support the pupil so that the challenging behaviour might be prevented or reduced. 

The parents, who did not wish to be named, said: ‘We believe passionately that our son and other children in his position should have equal rights to be able to go to school and receive the support they need to achieve the best possible outcomes.

“L’s autism means that he will grow up in a world where he will face challenges and adversity throughout his life. School should be somewhere he can go without fear of discrimination or exclusion for actions which he has no control over.

“These rules currently prevent that and we hope the tribunal will do what is needed to correct this inequality.”

Polly Sweeney, Human Rights Partner at Irwin Mitchell who is representing the family, stressed that a finding in the family’s favour would not mean that schools were prevented from excluding children “where it is necessary and proportionate to do so”.

But it would ensure that all disabled children were afforded “the same safeguards, protections and rights under the law regardless of whether their disability gives rise to challenging behaviour.”

She said: “This appeal is about the fundamental right of access to education for disabled children whose conditions, like autism, result in behaviours which can be physically aggressive.

“The legal definition of ‘physically abusive’ has been stretched to the point that it means disabled children even as young as six or seven who may have only displayed low level physical aggression on a handful of occasions, or even just once if the physical aggression was significant, are denied protection from discrimination under the law.”

Ms Sweeney added: “We do not believe this was parliament or even the Government’s intention when the current rule was introduced and we will be asking the Tribunal to find that the way the rule has been interpreted so far breaches our client’s human rights.”

The case has already been considered by the First Tier Tribunal, where challenges of discrimination against children in schools are heard.

The judge found that the behaviour that led to the exclusion  of ‘L’ was as a result of his ‘tendency to physically abuse’ and so he was not considered to be disabled for the purposes of protection under the Equality Act.

The Upper Tribunal - the equivalent of a high court - gave permission to appeal following an oral hearing held in February 2018. It has the power to set precedent.

The appeal is due to be heard over the next two days with a decision due later this month.

More than 1 in 100 children are on the autism spectrum in the UK. Government statistics show that children on the autism spectrum in England are three times more likely to be excluded than children without special educational needs.

Mark Lever, Chief Executive of the National Autistic Society, said exclusions can have a” devastating impact” as being kept out of school for long periods impacts on children’s learning, development and long-term prospects.

”A lot of families call this a ‘meltdown’ or a ‘shutdown’ and this can be perceived incorrectly by others as naughty or disruptive,” he said. “Children should only ever be excluded from school as a last resort, when every other possible solution has been tried. 

“Currently, the Equality Act means that schools must make reasonable adjustments to ensure that disabled students get the right support. However, due to a legal loophole, schools can exclude pupils who have a ‘tendency to physical abuse’ - even in a situation where a school hasn’t made reasonable adjustments for their disability or impairment. This means there isn’t enough incentive for schools to make every possible reasonable adjustment before resorting to exclusion. Too many children are missing out on months and years of their education as a result and we want to remove this legal loophole.”