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Neutral Citation Number:	2015 UKUT 7 AAC
Reported Number:
File Number:	HS 1212 2014
Appellant:	Mr. X
Respondent:	The Governing Body of a School
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	06/01/2015
Date Added:	22/01/2015
Main Category:	Disability discrimination in schools
Main Subcategory:	All
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 28. Disability discrimination in schools – whether regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 applies to children – whether regulation 4(1) applies where the specified conditions arise in consequence of an impairment protected under section 6 of the Equality Act 2010 – meaning of “a tendency to physical … abuse of other persons” The appellant’s five year old daughter’s behaviour was diagnosed as fitting the criteria for an autistic spectrum disorder. In May 2012 she moved to a new school and later, following an assessment of her Special Educational Needs, she received support from a teaching assistant. On 12 November 2012 the daughter physically attacked two children, the teaching assistant and the class teacher. She was excluded from school for one day and various steps were taken to address the problem. However, between February 2013 and May 2013 there were six more incidents involving further physical attacks by her for which she was again excluded from school. The appellants appealed to the First-tier Tribunal (F-tT) and the issues before it were whether or not the Equality Act 2010 was breached or whether the daughter’s condition was not to be treated as an impairment under section 4 of the Equality Act 2010 (Disability) Regulations 2010. The F-tT accepted that the daughter was disabled but held that section 4 of the 2010 Regulations applied, as she had a tendency to physical abuse of other persons, and therefore she had not been treated unfairly. The appellants appealed against that decision to the Upper Tribunal (UT). The issue before it involved the interpretation of regulation 4(1) of the 2010 Regulations and the submissions to it focussed on four issues: (a) whether regulation 4(1) applied to children under the age of 18, (b) whether it applied where the conditions specified arose in consequence of an impairment already protected under the 2010 Act, (c) the meaning of “physical abuse” and (d) the meaning of “tendency”. Held, dismissing the appeal, that: 1. adopting a purposive construction, regulation 4(1) of the 2010 Regulations applied to children and adults alike (paragraph 59); 2. regulation 4(1) applied where the conditions specified therein arose in consequence of an impairment that was already protected under the provisions of section 6 of the 2010 Act (paragraph 101); 3. a tribunal must approach its consideration of whether a person had “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it had found led to its conclusion, having taken into account all the circumstances of the case. This might be a challenging task but it flowed from the legislative choice of the more complex concept of “physical abuse” rather than “violence” or “assault”. The judges set out detailed guidance to assist tribunals in their consideration of such cases (paragraphs 114 to 121); 4. the F-tT had erred in law as it failed to consider what “physical abuse” within “tendency to physical abuse” might mean rather than focussing on the “tendency”, and it failed to consider those matters identified within the detailed guidance set out by the judges (paragraph 122). The panel set aside the decision of the F-tT but re-made it to the same effect.
Decision(s) to Download:	[2015] AACR 28ws.doc