Catriona MooreAn important legal case is being heard in the Upper Tribunal this week, in which a family is appealing against a primary school's decision to exclude their autistic son.

In this blog, Catriona Moore explains why the National Autistic Society has intervened in the case in support of the family, and why the outcome of this case could have significant implications for children on the autism spectrum and their families. Catriona is our Education Policy Officer.



Poor understanding of autism in schools

For children on the autism spectrum, getting the right support at school makes all the difference to their educational experience, their academic progress and their prospects for the future. But many families find that getting the support and understanding that their child needs at school is easier said than done.

Autism is sometimes described as an invisible disability – because for many autistic people, their needs aren’t immediately obvious. Parents say that this can make it difficult for them to get schools and local councils to take their child’s need for additional support seriously. As our Autism and education 2017  report found, far too many parents end up having to fight long and exhausting battles to get this support.

Poor understanding of autism means that children are often punished by schools for what is seen as naughty or disruptive behaviour, rather than an expression of how anxious or overwhelmed they are in the school environment. Schools do not always recognise that the behaviour they see may be a child’s attempt to communicate their anxiety, or an indication that their needs are not being met.

Children should only ever be excluded from school as a last resort, when every other possible solution has been tried. But the Department for Education’s own figures show that children and young people on the autism spectrum are three times more likely to be excluded from school than pupils who have no special educational needs. The Government is carrying out a review of why some groups of children – such as children with special educational needs and disabilities (SEND) – are disproportionately likely to be excluded from school.

Loophole in the law

A family whose son has been excluded from school for challenging behaviour is going to the Upper Tribunal this week. They are arguing that the school has discriminated against their son because of a loophole in current equality legislation, and that this is a breach of his human right to an education.

Schools have a duty under the Equality Act 2010 to avoid discriminating against children with disabilities, including autism. They have a duty to make ‘reasonable adjustments’ – things like providing a quiet and safe place where an autistic pupil can go when they feel overwhelmed, or allowing autistic pupils to avoid crowded corridors when moving between lessons. This enables autistic children to learn, and reduces the risk of situations that might lead to them being excluded.

However, the Equality Act also includes an ‘exemption’ in Regulation 4(1) that means children may lose their protection from discrimination. This regulation says that, if a person behaves in a way that indicates they have a ‘tendency to physical abuse of others’, it is considered to be separate to any disability they may have. It does not recognise that someone’s behaviour may be directly related to their disability, as we know can be the case for children on the autism spectrum who are not well supported.

Behaviour as a sign of unmet need

The National Autistic Society is intervening in this case in support of the family because we believe that the way the law is being applied discriminates against children on the autism spectrum. We are concerned that the law doesn’t encourage 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.

We want the Upper Tribunal to recognise that behaviour can be a form of communication, or a sign of unmet need. It is often impossible to separate an autistic child’s behaviour from their autism. We know from our School Exclusions Service, that when an autistic child or young person feels extremely anxious or stressed, their choices can feel limited to a ‘fight or flight’ response: either trying to run away from the source of the anxiety or to lash out at people who are in their way.

We hope that this case will overturn an injustice, not just for the child at the centre of it, but for many other children on the autism spectrum. We are calling on the Government to change the law so that autistic children get the support they need in school. The case for this is even stronger as it was recommended two years ago by a House of Lords committee that looked at the impact of the Equality Act on disabled people.

While we don’t know yet when the Upper Tribunal will give its ruling on the case, we will follow it closely and provide updates. In the meantime, we will continue to make the case for a national autism and education strategy, so that schools understand autism and councils work with schools to make sure that the full range of support is available to all children on the autism spectrum.

For more information

If you’re looking for help getting the right education for your child, we have lots of information and tips on our website.

We also run an Education Rights Service, which offers impartial and confidential support to families on school education rights and entitlements.