Parents of C v Trustees of Stanbridge Earls School SE881/12/00047

Subjects: Discrimination in Education— Discrimination Arising from Disability – Direct Discrimination

C was a pupil at D's school. She had engaged in appropriate sexual conduct with two boys. She was excluded from the school. The boys were not. C brought claims of direct disability discrimination and discrimination arising in consequence of disability against the School.

Facts

C was a 15 year old female pupil who was disabled. She had communication difficulties and Autistic Spectrum Disorder or Asperger’s Syndrome. She was very sexually and emotionally vulnerable. She experienced extreme egocentricity, temper tantrums and a social and emotional development that was significantly below her actual age. Members of D's staff came to hear about C's inappropriate sexual encounters with boys at the school. C initially saw the school medical centre reporting that she had a vaginal tear. The school appeared to consider that C had engaged in consensual sex and did not report the matter further to either C's parents or social services. About 2 weeks later C told her parents that she had had sex with a boy at the school barbecue. The police were called. They investigated the matter as an allegation of rape. C continued at the school. She was bullied as a result of the allegations. It was discovered that she had engaged in a sexual encounter with another boy. The School asked C's parents to withdraw her from the school for her own protection. C's parents brought a claim under the Equality Act.

Held

The first tier tribunal held that C was disabled and that the school knew or ought to have known this. The requirement for her to withdraw from the school was unfavourable treatment. Her education would be disrupted. At the age of 15 sexual intercourse could not be consensual as a matter of law and her experiences amounted to abuse. The school should have made reasonable adjustments to the way it assessed risk, disciplined pupils and applied disciplinary policies. Furthermore the requirement for C to withdraw arose directly from her disability within the meaning of 5.15 of the EA 2010. D could not justify their actions since they had not attempted to understand C's vulnerability nor to establish ways of safeguarding her short of exclusion. C's claim of direct discrimination under 5.13 EA 2010 was also upheld on the basis that a non-disabled pupil (the two boys) were not excluded.

Comment

This case provides a helpful example of the sort of adjustments that might be expected of a school which has pupils who have behavioural difficulties stemming from a disability. Although the reasonable adjustments that the Tribunal required D to make are not particularly well articulated (they appear to suggest that D was only required to consider making adjustments) they illustrate the obvious need for a school to provide support for a disabled pupil that it would not ordinarily provide to other non-disabled pupils. The Tribunal found that excluding C from the school was not a reasonable adjustment since adjustments are required to remove the disadvantage.

The discrimination under 5.15 of the Equality Act is dealt with shortly in paragraph 175 of the judgment: the Judge held that the reason C was excluded was because she could not be protected; the need for protection arose in consequence of her disability and the exclusion was not justified as a proportionate response.