Having the right to do what?s best

Is it unfair to punish a student diagnosed with ADHD who attacks someone, because he/she is disabled? Is it ever lawful to exclude an autistic student? Schools and colleges do their best to support disabled students but sometimes hard questions have to be asked.

The effects of the Disability Discrimination Act 1995 have been more of a slow burn than a rocket. Many cases (for example all school exclusions except permanent exclusions) have been dealt with at Special Educational Needs and Disability Tribunal (SENDIST) rather than the courts. Only recently are cases getting into the courts and giving us an authoritative guide.

It is unlawful to treat a person who is physically or mentally disabled less favourably 'for a reason related to their disability'.

'Related to' is a pretty wide category. If a student who is disabled misbehaves for a reason related to the disability, then, to avoid discriminating, the student must be treated as if he or she had not misbehaved at all: because had there been no disability the student wouldn't have misbehaved.

However, it is possible to justify discrimination if the reason is 'material to the particular case' and 'substantial'. That means the decision cannot be a blanket decision for all disabled pupils or all pupils, for example a tariff approach to exclusion.

And a 'substantial' reason? A cynic would say that it is whatever a particular judge thinks is a good enough reason; but, less arbitrarily, it is something with significant consequences.

Exclusion

A recent case has clarified the steps that have to be gone through in order to decide whether a school has acted lawfully in excluding a pupil, in this case for three days.

The court laid out the questions which a SENDIST must ask:

• Was the child disabled?

• Was the child treated less favourably for a reason related to the disability?

• Can this be justified?

• Were there reasonable steps that could have been taken?

• Did the school fail to take those steps without justification?

• If those steps had been taken, would it have made any difference?

There has been concern that some SENDISTs have been operating on the assumption that no child with a disability should ever be excluded. This case will help schools to ensure that other students and staff are protected as well as the interests of disabled pupils.

A school should be alert to the possibility that a child is mentally impaired. If there is a constant stream of violent, impulsive, erratic or irrational behaviour, that is not entirely attributable to adolescence or cultural difference, then get a psychologist's report.

If the result is a diagnosis of ADHD/autistic spectrum disorder, the school should recognise the student as disabled. Failing to seek a diagnosis exposes the school.

For post-16 the same applies. It is discrimination to refuse to admit on the grounds of disability-related behaviour and disciplinary procedures must be non-discriminatory or justifiable in the circumstances of the particular case.

Defining reasonable adjustments

Finally, the organisation has a duty to consider and make reasonable adjustments to the disability.

The 'reasonable adjustments' will probably arise from the diagnosis. However, what is reasonable is not what is desirable or ideal, but what a reasonable organisation would do given its financial and physical circumstances, the number of staff, and the time available for training.

A school or college will be expected to show some serious effort by inducting and training staff; making information available to them and providing policies and procedures; and making specific arrangements for students to help them avoid getting into situations where problems may arise.

The fact that problems do arise will not be proof that the institution failed to make reasonable adjustments. Nothing can guarantee that failure won't occur.

The institution must then weigh the interests of the disabled person and the interests of the educational community. If a disabled person has attacked someone else there may be good reasons for removing him or her, even permanently, to preserve a sense of security.

The decision of the SENDIST in the case mentioned above was overturned partly because the tribunal failed to conduct this balancing exercise. The institution may decide that whatever reasonable adjustments it makes, they would in fact make no difference.

Education providers must make an effort to help students with mental and behavioural impairments thrive and the law will not accept less. However, if an institution cannot do its duty both to others and to the disabled, even when it has done what it can, the law will be slow to find it at fault.

By Richard Bird, ASCL's legal consultant