The recent Disability Discrimination Act (DDA) decision by the High Court in the case X Endowed Primary School v Special Educational Needs and Disability Tribunal (2009) could impact significantly on schools. Westley Laird reviews the case and discusses how this decision could affect your school

What are the obligations under the DDA?
The DDA applies to all educational institutions, public and private. It defines disability as anyone who has a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’. The three elements of the definition (physical or mental impairment; adverse effect on day-to-day activities; substantial and long-term side effects) must be made out by the person claiming to have been discriminated against for them to succeed. However, the DDA also sets out what is excluded from protection.

What are the exclusions under the DDA?
Regulations that accompany the DDA outline what is to be treated as not amounting to a disability. The regulations list a tendency to physical abuse of other persons as an excluded condition. It was this issue that was at the heart of the argument between the governors of the school and the parents of a child in this new case.

What did the court decide?
The decision to permanently exclude the boy was initially appealed by his parents to an Independent Appeal Panel (IAP), which found in their favour. The IAP held that prior to the exclusion, none of the learning support assistants (LSAs) at the school had been offered training regarding ADHD and that it would have been an ‘appropriate strategy’ and ‘reasonable adjustment’ to have sought the advice of the Access to Learning specialist team prior to the relevant incident. The IAP considered this a failure to make reasonable adjustments and thus the exclusion was unlawful under the DDA.

The governors appealed to the High Court on one ground. The school felt that the IAP had erred in law because the only aspect of the boy’s ADHD in relation to which the IAP had ruled that there had been a failing was his tendency to physical abuse. Under the regulations, a tendency to physically abuse another is an excluded condition. However, the High Court disagreed and confirmed the IAP’s decision.

How did the court reach this decision?
The court accepted that the correct statutory interpretation of the regulations is that the exclusions only apply to free-standing conditions and not to consequential symptoms or manifestations of an already protected disability. In other words, as the boy’s behaviour on the day (physical abuse) was a manifestation of his underlying disability (ADHD), it was correct that this behaviour was protected under the DDA.

The Court confirmed that the IAP had been correct to find that the failure to make a reasonable adjustment had related to a protected disability. The Court stated that the training measures taken by the school were not limited to controlling a tendency to physical abuse, but included training around the general management of pupils with ADHD. The training was given after the incident and therefore the excluded student had not had adequate reasonable adjustments in place for his disability. There had been unlawful discrimination arising from the failure to take reasonable steps to ensure that he was not placed at a substantial disadvantage in comparison to pupils who were not disabled.

Furthermore, the examination of the report compiled by the school soon after the incident noted that the reason for the pupil’s exclusion was on the grounds of health and safety and the maintenance of standards. Though the IAP had concluded these were material and substantial reasons, the High Court felt this supported the view that the reason the pupil had been excluded was due to his conduct towards the teachers, and thus was for a reason related to the excluded condition.

Has this changed the law significantly?
The decision of the Court to uphold the IAP’s conclusion that there was a failure to make reasonable adjustments has been widely covered in the education sector media. There is a risk that this decision will have a significant impact upon schools with disabled pupils and could put pressure on schools to finely balance their obligations under the DDA and requirements under health and safety legislation.

However, we should also consider whether this case shifts the goalposts at all. The Court found against the school on one very narrow ground – there had not been adequate training for staff to deal with ADHD. Therefore, it was not an extension to the obligations on the school that existed prior to the case being decided.

What are the implications for schools?
So does the decision simply reaffirm the message that schools need to ensure that sufficient training is given to staff about particular disabilities, or does it suggest that the obligations under the DDA are now too burdensome for schools?

Health and safety laws have always and will always require risk assessments to be carried out. However, this case suggests that the particular risks regarding children with a tendency to physically abuse others can be managed by delivering sufficient training at an appropriate time. While that would have been enough to save the school in this case from a finding of disability discrimination, it would be interesting to see the standing accorded to that training if the teacher had been seriously injured and had sued the school in negligence.

Before the impact of this decision can be confirmed, the dust needs to settle on it and schools need to consider how, if at all, it changes their approach to managing risks associated with children with conditions such as ADHD.

This e-bulletin issue was first published in November 2009

About the author: Westley Laird is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link www.brownejacobson.com.

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