Discrimination – tendency to physical abuse

January 25th, 2015 by Rachel Kamm

A three-judge Upper Tribunal panel X v GB of a school has considered the exclusion of a tendency to physical abuse from the definition of disability under the Equality Act 2010.

The child, S, was given six fixed term exclusions of up to four days because of incidents when S was violent to other children. She brought a disability discrimination claim in the First-tier Tribunal, including a claim that the fixed term exclusions constituted discrimination arising from her disability. Her claim was unsuccessful. The Tribunal found that she was a disabled (by reason of autism) and that she had a tendency to physically abuse others that was a result of her autism. Regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 provides that a tendency to physical abuse of other persons is to be treated as not amounting to an impairment for the purpose of the Equality Act 2010. The Tribunal concluded that it followed that she had not been treated less favourably because of something arising in consequence of her disability.

S appealed to the Upper Tribunal. The UT found that regulation 4(1) applied to children as well as to adults. It went on to agree with the approach of Lloyd Jones J in Governing Body of X Endowed Primary  School v SENDIST  [2009] EWHC 1842 (Admin) (and of the EAT in Edmund Nuttall Ltd v Butterfield [2006] ICR 77) that “having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment.” It follows that a school will not breach section 15 of the Equality Act 2010 if they treat a child less favourably because of the child’s tendency to physical abuse of others, even if that tendency arises as a result of a disability (such as, in this case, an autistic spectrum disorder).

Note that the guidance at [114-121] on what a “tendency to physical abuse” means suggests a higher threshold than merely physical violence. This is worth reading in full, but the UT found that there must always be an element of violent conduct (but that this alone is not sufficient), there is no requirement for knowledge on the part of the perpetrator that what they are doing is wrong, the existence of some sort of misuse of power or coercion makes it more likely that the test is met, the stage of a child’s development is relevant, and it is not necessary for the tendency to physical abuse to manifest itself regularly or frequently. The UT’s concluding summary was that “a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has  found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above. In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school. However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.”

Applying its conclusions on the law to the facts of S’s case, the UT found that the First-tier Tribunal had erred in law in failing to make sufficiently specific findings of fact about any tendency to physical abuse. The UT concluded that S’s behaviour manifested a condition of a tendency to physical abuse of other persons. Therefore S’s appeal did not succeed.

Clive Sheldon QC and James Cornwell of 11KBW represented the Governing Body.

Rachel Kamm 

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