X Endowed Primary School v Mr and Mrs T
Although the 1996 Disability Discrimination (Meaning of Disability) Regulations exclude certain conditions, the High Court has said in X Endowed Primary School v Mr and Mrs T that tribunals must consider whether the alleged discrimination relates to the excluded condition, the protected disability or both when deciding whether the condition is, in fact, excluded.
Basic facts
JT, a 10-year old pupil who had Attention Deficit and Hyperactivity Disorder (ADHD) which caused him to be aggressive at times, was excluded from the school following an incident on 6 November 2007 when he scratched a teacher’s arm.
His parents, Mr and Mrs T, appealed against the decision to exclude him arguing that the school was in breach of its duties under the 1995 Disability Discrimination Act saying that it should have asked for advice and support from the Access to Learning Specialist Team, among other things.
Tribunal decision
The Special Educational Needs and Disability Tribunal found that ADHD constituted a disability under the DDA and that JT had been the subject of unfavourable treatment in that he had been excluded.
His behaviour on the day was, it said, consistent with his disability. It decided that the treatment he received was for a reason relating to his disability because had he not displayed such behavioural difficulties he would not have been excluded from the school.
It concluded that the school could have made a reasonable adjustment by enlisting the advice and support of the Access to Learning Specialist Team prior to the incident. The Governing Body had therefore unlawfully discriminated against him by failing to take reasonable steps to ensure JT was not placed at a substantial disadvantage in comparison with pupils who were not disabled.
The school appealed, arguing that although JT's ADHD was a protected disability, the only aspect that required an adjustment was his tendency to physically abuse others. As this was an excluded condition under section 4(1) of the 1996 regulations, it did not have to make reasonable adjustments.
High Court decision
The High Court decided that although the assault was “low in the scale of seriousness” it still came within section 4(1) of the regulations as it was “fairly to be regarded in the circumstances of this case as arising from a tendency to physical abuse of other persons”.
The question, however, was whether the discrimination found by the tribunal was “in fact related to the excluded condition (the tendency to physical abuse) or to the protected disability (ADHD) or to both”.
The High Court referred to the guidance to the Disability Discrimination Act which states that a “person with an excluded condition may nevertheless be protected as a disabled person if he or she has an accompanying impairment which meets the requirements of the definition. For example, a person who is addicted to a substance such as alcohol may also have depression ...”
It said that although the tribunal had concluded that the school should have made a reasonable adjustment by calling on the Access to Learning Specialist Team, this was not just to help the school deal with and control JT’s tendency to physical abuse. It was also to help all staff at the school manage pupils with ADHD generally, including calming and de-escalation strategies. “ Such strategies may be directed at non-compliant and disruptive behaviour falling short of a tendency to physical abuse”.
It concluded that the tribunal was right to decide there had been unlawful discrimination arising from the failure to take reasonable steps to ensure that JT was not placed at a substantial disadvantage by comparison with pupils who were not disabled.
The fact that the tendency to physical abuse was a manifestation of a protected disability did not remove it from the scope of the regulations.