Tendency to physical abuse exclusion

The Upper Tribunal has recently considered the exclusion of a ‘tendency to physical abuse’ from the definition of disability under the Equality Act 2010 and has provided some useful guidance on how to approach the issue.

Under the Equality Act 2010, individuals have statutory protection from discrimination. With regard to disability discrimination, Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 provides that, amongst other exclusions, a tendency to physical or sexual abuse of other persons is not to be treated as an ‘impairment’ for the purpose of the Equality Act 2010.

In the recent case of X -v- The Governing Body of a School (SEN) [2015], a child, S, was given six fixed term exclusions of up to four days as a result of incidents when S was violent to other children and members of staff. This led to S bringing a disability claim in the First-Tier Tribunal. The Tribunal found that the child was disabled by reason of her autism and that she had a tendency to physically abuse others as result of her disability. However, it concluded that S had not been treated less favourably because of something arising in consequence of her disability on the basis that a tendency to physically abuse others was not of itself to be treated as an ‘impairment’ under the Equality Act 2010. S unsuccessfully appealed to the Upper Tribunal.

The Upper Tribunal agreed that a tendency to physical or sexual abuse of others is a condition which is specifically excluded from amounting to an ‘impairment’ under the Equality Act 2010 and therefore could not found a claim for disability discrimination. It found that the excluded conditions under Regulation 4(1) applied to children as well as adults and whether or not they were manifestations of an underlying protected impairment. This decision means that schools will not necessarily be in breach of disability discrimination legislation if they treat a child less favourably because of the child’s tendency to physically abuse others, even if that tendency arises as a result of a disability.

In determining whether someone has a tendency to physical abuse of other persons, the Upper Tribunal provided some useful guidance. It found that (1) there must always be an element of violent conduct; (2) there is no requirement for any knowledge on the part of the perpetrator that what they are doing is wrong; (3) the existence of some sort of misuse of power or coercion may lead to the conclusion that a much lower degree of violence than would otherwise be required is sufficient; (4) the stage of a child’s development will be a relevant factor; and (5) it is not necessary for the tendency to physical abuse to be manifested frequently or regularly. This guidance suggests a higher threshold than physical violence.

While the outcome of this case may appear clear cut, the findings of the case are surprising and could be subject to further appeal. We would therefore recommend that any school seeking to rely on this exclusion from the Equality Act 2010 obtain proper legal advice before doing so.