X Endowed Primary School v Special Educational Needs and Disability Tribunal & Ors

Regulation 4(1) of the Disability Discrimination (Meaning of Disability) Regulations 1996 excludes specified conditions, including a tendency to physical abuse, whether the condition exists independently or manifests an underlying protected impairment. The question is whether the impugned treatment or failure relates to the excluded condition, the protected disability, or both. Where a protected disability is an effective cause of the relevant failure, the reasonable-adjustment duty may be engaged. However, no adjustment is required in respect of conduct attributable solely to an excluded condition. The statutory scheme is interpreted purposively, but its social-policy implications cannot justify adding a limitation which Parliament did not express.

The governing body appealed from a decision of the Special Educational Needs and Disability Tribunal concerning a pupil with ADHD. The Tribunal found that the school had unlawfully discriminated by failing to obtain specialist advice and training before an incident in which the pupil scratched a member of staff and was excluded.

The appeal concerned the interaction between the reasonable-adjustment duty in Part IV of the Disability Discrimination Act 1995 and regulation 4(1) of the 1996 Regulations. The central issue was whether the exclusion for conduct said to arise from ADHD was protected conduct, or a tendency to physical abuse excluded from the statutory scheme.

1. Appeal allowed in part in reasoning, but Tribunal’s conclusion upheld. The Tribunal had correctly found unlawful discrimination arising from the failure to take reasonable steps to prevent the pupil being placed at a substantial disadvantage.
2. Regulation 4(1) excludes a tendency to physical abuse whether it is a free-standing condition or a manifestation of another impairment. The word “condition” bears its ordinary meaning and is not restricted to independent conditions. The statutory scheme, its purpose, and the absence of an express exception for derivative symptoms supported that construction.
3. The pupil’s conduct on 6 November 2007, although relatively minor in seriousness, was fairly regarded as arising from a tendency to physical abuse. The exclusion itself related solely to that excluded condition and was not discrimination for a reason relating to the protected disability.
4. The Tribunal’s separate finding concerned the failure to enlist the Access to Learning Specialist Team before the incident. The recommended measures included ADHD training, calming and de-escalation strategies, and general management of disruptive and non-compliant behaviour. They were not confined to preventing physical abuse. The failure therefore related, at least in part, to the protected disability and breached section 28C.
5. The approach in Edmund Nuttall Ltd v Butterfield [2005] IRLR 751, adapting the reasoning in O’Neill v St Thomas More School [1996] IRLR 372, provided the appropriate causation analysis: the protected impairment need only be an effective cause of the failure, even if an excluded condition also forms part of the circumstances.

• High Court (Administrative Court): dismissed the appeal from the Tribunal’s finding of unlawful discrimination, while holding that the exclusion itself related solely to an excluded condition.
• Special Educational Needs and Disability Tribunal: found that the governing body failed to make a reasonable adjustment by not obtaining specialist advice and support before the incident on 6 November 2007.