Regulations say that a tendency to physical abuse cannot be a disability under Equality Act 2010. It had therefore been held that an autistic child with a tendency to lash out could not claim under the EqA when he was excluded from school. However the Upper Tribunal held this regulation is incompatible with Article 14 of the European Convention of Human Rights. The regulation came nowhere near striking a fair balance between the rights of children such as this one and the interests of the community. As regards tendency to physical abuse the regulation should not be applied to children in an education context.
Upper Tribunal, 2018. Full judgment: www.bailii.org/uk/cases/UKUT/AAC/2018/269.html
L was an 11-year old child with autism and other conditions. There was evidence that such children might lash out at others for various reasons, with no intention to hurt others. Their aggressive behaviour may be intrinsic to their underlying disability.
L was excluded for one and a half days due to aggressive behaviour. His parents complained under the Equality Act. Under previous case law, however, the case would fail because of regulation 4(1)(c) Equality Act 2010 (Disability) Regulations 2010 (pdf) (SI.2010/2028). This regulation removes a ‘tendency to physical abuse’ and various other conditions from the Equality Act definition of ‘disability’.
Previous cases had decided that regulation 4 applies not only to free-standing conditions but also to symptoms or manifestations of protected impairments such as autism (para 26 of the judgment gives an example of how this works).
Held: in the context of education, the exclusion of a ‘tendency to physical abuse’ under regulation 4(1)(c) violates the rights of children under Article 14 of the European Convention on Human Rights read in conjunction with Article 2 of Protocol 1. The regulation comes nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other. The regulation should be re-interpreted or disapplied accordingly.
Justification: had a fair balance been struck?
The court held (see Technical points below) that, in the context of education, excluding children with a ‘tendency to physical abuse’ from having a disability is incompatible with Article 14 of the European Convention of Human Rights unless a fair balance has been struck between the rights of the individual and the interests of the community, bearing in mind the severity of the consequences, the importance of the measure’s legitimate aim and the extent to which the measure will contribute to that aim.
The court said it could attach only very little weight to the Secretary of State’s opinion in the present case, given the absence of a properly considered balancing exercise.
Impact on the child
The court looked first at the severity of impact on the child. The fact the child was not seen as disabled meant he could be excluded from school even if the physically abusive behaviour complained of was brought about by a school’s failure to make reasonable adjustments. Significant numbers of children were affected.
Also if a child were seen as disabled within the Equality Act, the school’s obligation to make adjustments would still be limited to what was ‘reasonable’, and the school could still exclude them if that was a ‘proportionate’ response.
Excluding a child from school may have a massive effect on them, finding themselves with inappropriate peer groups, exposed to significant misbehaviour. Furthermore aggressive behaviour is not a choice for autistic children – it is not ‘bad’ or ‘naughty’ behaviour.
In addition regulation 4(1)(c) led to there being no proper judicial scrutiny of whether an exclusion complied with the European Convention.
Considering the countervailing community interest, the government argued that violence is unacceptable and schools should not have to justify exclusions for it. The claimant countered (and the court rather agreed) that children such as L have to be educated somewhere. Also why should a school not have to justify the exclusion where the physically aggressive behaviour results from a failure to meet the autistic child’s needs effectively?
The court refused to take into account as justification the wider application of regulation 4, saying the court must just consider indirect discrimination against children such as L in an education context.
Conclusion: fair balance not struck
The court decided that regulation 4(1)(c) comes nowhere near striking a fair balance between the rights of children such as L on the one side and the interests of the community on the other:
“The profound severity of the consequences of the measure on the status group weigh extremely heavily and the arguments put in favour of the countervailing public interest by no means counterbalance them.”
Regulation must be re-interpreted or disapplied
The court’s conclusion was that, in the context of education, regulation 4(1)(c) of the 2010 Regulations violates the European Convention right of children with a recognised condition that is more likely to result in a ‘tendency to physical abuse’ not to be discriminated against under Article 14 read in conjunction with Article 2 of Protocol 1.
The parties agreed it was permissible for the court to read and give effect to regulation 4(1)(c) in a way that makes it Convention compliant without disturbing a fundamental feature of the regulation. The court therefore decided that regulation 4(1)(c) does not apply to children in education who have a recognised condition that is more likely to result in a tendency to physical abuse.
Even if the regulation could not be re-interpreted in that way, the court held that since the offending regulation could be identified the Human Rights Act would oblige the court to disapply the regulation.
Whether the regulation was re-interpreted or disapplied, regulation 4(1)(c) as regards ‘tendency to physical abuse’ did not exclude L from having a disability within the Equality Act.
It was common ground that Article 14 includes indirect discrimination; the court quoted from DH v Czech Republic “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.” The court said (at para 104) it did not think it necessary to consider ‘Thlimmenos discrimination’.
Within ambit of Convention right
To fall within Article 14 (non-discrimination), the issue had to fall within the ambit of another Convention right. Here there was no dispute that it fell within the ambit of Article 2 of Protocol 1, which deals with education.
It was also agreed that L had an ‘other status’ within Article 14. The court said the status was “a child with a recognised condition that is more likely to result in a tendency to physical abuse”.
Were other disabled children ‘analogous’?
For Article 14 to apply there had to be a difference in treatment between children with L’s status and others in an analogous situation. The comparators were disabled children whose condition or impairment does not give rise to an enhanced tendency to physical abuse. Was there such an obvious relevant difference that these children could not be described as analogous?
The court held these other children were analogous, bearing in mind a statement by Lady Hale in the House of Lords that “unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.”
Justification: technical test
The court adopted from case law the following test for whether the difference in treatment is justified under the European Convention of Human Rights:
- (i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right?
- (ii) is the measure rationally connected to that aim?
- (iii) could a less intrusive measure have been used?
- (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has fair balance been struck between the rights of the individual and the interests of the community?
The court only found it necessary to consider (i) and (iv). How rigorously should the court assess these tests?
- As regards (iv), the ‘fair balance’ stage, the parties agreed that the court is not limited to deciding whether the exclusion from the Equality Act is “manifestly without reasonable foundation” (R (on the application of A and B) v Secretary of State for Health (bailii.org), Supreme Court, 2017, para 33). The court was required to decide the issue for itself, albeit giving ‘appropriate’ respect to the Secretary of State’s decision. The court said there did not seem to have been a considered opinion of the Secretary of State on whether schools should have Equality Act obligations to children such as L. Given the absence of a properly considered balancing exercise, the court could attach only very little weight to the Secretary of State’s opinion.
- As regards (i) to (iii), the European Court of Human Rights in the case of Stec said that as a general rule very weighty reasons would have to be put forward to justify sex discrimination; however a wide margin was usually allowed to the state for general measures of economic or social strategy, where the court would generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. The Upper Tribunal decided that disability discrimination does not fall within the type of core ground such as sex discrimination referred to in Stec. It decided it should apply the “manifestly without reasonable foundation” test to items (i) to (iii). In matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight. The question as to who should be defined as disabled is one on which reasonable people could disagree. The case concerned a matter of social strategy.
This case is of most importance in an education context as regards tendency to physical abuse.
However the case also raises wider questions (though not particularly on stammering). Other exclusions in the Equality Act 2010 (Disability) Regulations 2010 (pdf) might also be challenged in future cases under the European Convention on Human Rights. For example the regulations exclude exhibitionism, a tendency to steal, and addiction to alcohol.
Also this decision was limited to education, but future claimants may seek to argue that some exclusions should be disapplied in other fields such as employment. Some issues that may arise here are discussed at Disability under Article 14 European Convention>Relevance in Equality Act cases?, including how far employment falls within the scope of the Convention at Scope of European Convention Rights>What about disability discrimination by employers? Article 8 with Article 14?
The tribunal’s approach to justification – namely deciding the ‘fair balance’ issue for itself but generally ‘very weighty reasons’ not being required to justify disability discrimination – may be challenged as there have since been further developments in case law: What is ‘discrimination’ under Article 14 European Convention?>’Margin of appreciation’ and need for “very weighty reasons”?
House of Lords Committee
The House of Lords Select Committee on the Equality Act 2010 and Disability in The Equality Act 2010: the impact on disabled people (pdf), 2016, recommended that the regulations be amended so that a tendency to physical abuse of other persons ceases to be excluded.