High Courts and Upper Tier Tribunals can make rulings on parts of the law that need clarifying (the grey areas), those rulings are called ‘Case Law’.
Following a Case Law ruling all other Courts and Tribunals then must follow this and it takes precedent over what the law says.
Case Law - C & C v The Governing Body of a School [2018] UKUT 61 (AAC)
This case was brought about by parents whose child has autism, anxiety and pathological demand avoidance.
Their child received a fixed term exclusion of 1.5 days and the reason given by the school for the exclusion was their aggressive behaviour. The First Tier Tribunal found that the child had been involved in a number of incidents over a ten-month period largely involving pushing, pulling and grabbing others although there had also been a few incidents of hitting staff.
The First Tier Tribunal considered that the child met the definition of a disabled person for the purposes of section 6 of the Equality Act 2010. However, it dismissed the claim because the exclusion was because of their ‘tendency to physical abuse’ which, under the Equality Act 2010, is something that is not classed as a disability.
This was then appealed to the Upper Tier Tribunal; they disagreed with the First Tier Tribunal as they found this decision was inconsistent with Human Rights Law.
The decision from the Upper Tier Tribunal means that children will, in the context of education, be protected against discrimination even where they have special needs that gives rise to a ‘tendency to physical abuse’. Schools and local authorities will be required to make reasonable adjustments for children where a recognised special need leads to a ‘tendency to physical abuse’. Schools will also need to justify the exclusion of ‘disabled’ children in terms of proportionality terms.