Do School Behaviour Policies Discriminate Against Students With Special Educational Needs?


Last week the House of Commons Education Select Committee heard evidence that zero-tolerance school behaviour policies could be discriminatory. 

Many parents of children with special educational needs and/or disabilities (SEND) face a battle against school behaviour policies, which are often rigid and applied as a blanket policy.

Alex Kelly, Legal Advisor for Simpson Millar's Education Law team, explains how these policies can be discriminatory under the 2010 Equality Act. 

What Has Been Said? 

Whilst hearing evidence during a sitting of the Education Select Committee, Labour MP Emma Hardy raised concerns about "extremely strict, rigid, no excuses behaviour policies that are put out by certain large academy chains in particular in the north."

"Many parents of children with SEND will recognise this reality", Alex explains. "However, in our experience these policies are not simply limited to academies in the north."

In response, Matthew Dodd, co-coordinator and policy advisor for the Special Educational Consortium, explained that “reasonable adjustments” have to be made for people who have disabilities under the Equality Act and Disability Discrimination Act. He also added that he believed "zero-tolerance behaviour policies might be unlawful" and that "reasonable adjustments must be made to everything that public bodies do, so we would certainly like to see those sorts of policies challenged by government itself."

It is true that blanket, rigid behaviour policies are unlawful under the terms of the Equality Act 2010. Schools not only have a duty to make reasonable adjustments for children with SEND but applying zero-tolerance behaviour policies could also be indirect discrimination. Additionally, punishing a child for behaviour arising from their disability could be discrimination arising from a disability. 

How Does This Impact Parents And Children With SEND? 

Parents may find that their child is punished or excluded as a result of a school applying a behaviour policy with no leeway whatsoever. Schools will often take the view that a child cannot be absolved from any form of punishment, even if the child does have SEND.

Most parents do not disagree that if their child displays bad behaviour they should face the appropriate consequences. The dispute comes when their behaviour is quite clearly arising from their SEN or disabilities, or when the punishment does not take into account their SEN or disability. 

However, parents often find themselves isolated when trying to make their case. Mainstream schools are increasingly using a variety of measures to deal with bad behaviour rather than making reasonable adjustments. These measures can range from minor ones, such as school punishments, to more extreme measures such as exclusions – some of which are unfair school exclusions.

What Does The Law Say?

Three types of discrimination have been mentioned in this article that could apply if you are having problems with a school's behaviour policy:

  • Failure to make reasonable adjustments 
  • Indirect discrimination 
  • Discrimination arising from a disability 

With regards to reasonable adjustments, where something a school does places a disabled pupil at a disadvantage compared to other pupils then the school must take reasonable steps to try and avoid that disadvantage. With behaviour policies, if that policy places a child with special educational needs at a substantial disadvantage then the school must make reasonable adjustments to avoid the disadvantage. 

With indirect discrimination, a school would have a policy, practice or criterion that applies to all pupils but it is more likely to have an adverse effect on disabled pupils. For example, if your child’s school has a particular point in the behaviour policy that places your child at a disadvantage compared with non-disabled pupils then this could be indirect discrimination. 

Finally, with discrimination arising from a disability, a school must not discriminate against a disabled pupil because of something that is a consequence of their disability. For example, if your child has auditory processing difficulties i.e. they have problems processing information presented verbally and the school punish them for disobedience and not following instructions. 

How Can Simpson Millar Help Me?

If your child has been the victim of a zero-tolerance behaviour policy, whether they received minor in-school punishments or were excluded from school, then you may be able to make a claim of disability discrimination against the school in the Special Educational Needs and Disability Tribunal. 

As specialists in Education Law, our team has assisted many families in making claims of disability discrimination against schools that have applied rigid behaviour policies. To find out whether you can make a claim speak to one of our experts on 0808 129 3320 or fill out an enquiry form and we’ll get in touch with you.

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