Behaviour Management and the Implications of the Disability Discrimination Act

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Contents

Introduction 

Disability Discrimination 

The Relationship between Disability and Behaviour 

Steps to Avoiding Discrimination 

Questions and Answers

Where to Get Further Help

This guidance is written for teachers and headteachers. However, the issues addressed in the guidance have implications for all staff in schools. In order to deal with these issues effectively and appropriately schools will need to consider behaviour management and the implications of the Disability Discrimination Act (DDA) in the context of their work to remodel the school workforce.

The guidance explains what schools need to do to ensure that they take full account of the requirements of the Disability Discrimination Act when dealing with pupil indiscipline. It sets out steps that schools can take to help avoid unlawful discrimination.

Good practice on disability equality should not require schools to establish practice that is bureaucratic or burdensome. The guidance will help schools to establish policies, procedures and practice that are clear and concise.

NASUWT has also produced general guidance on the Disability Discrimination Act. For further information see NASUWT Advice on the Disability Rights Commission Codes of Practice for Schools and Post-16.

This guidance only applies to England, Wales and Scotland. The guidance does not apply to schools in Northern Ireland because Northern Ireland has separate equalities legislation and the DDA does not apply.

Introduction

It is important to understand the distinction between poor behaviour that is caused by an underlying impairment and other poor behaviour. A pupil may have substantial behavioural difficulties which relate to an underlying physical or mental impairment. If the physical or mental impairment is recognised as a disability then the Disability Discrimination Act (DDA) will cover the pupil’s behaviour where it is related to their disability. However, the DDA does not mean that such pupils have an excuse for disruptive or antisocial behaviour. In relation to any specific incident, there has to be a direct relationship between the behaviour and the pupil’s disability.

Disability Discrimination

Schools need to be aware of what is meant by discrimination if they are to understand how behaviour management could lead to unlawful discrimination. The DDA defines two types of discrimination: less favourable treatment, and failure to make reasonable adjustments.

Less favourable treatment

Less favourable treatment occurs if the school[1]:

• for a reason relating to the child’s disability, treats that child less favourably than it treats, or would treat, others to whom that reason does not, or would not, apply; and
• it cannot be shown that the particular treatment is justified.

Three questions need to be asked in order to determine whether unlawful discrimination has taken place:

• Is the less favourable treatment for a reason that is related to the child’s disability?
• Is it less favourable treatment than someone gets, or would get, if the reason does not apply to him/her?
• Is it less favourable treatment that can be justified?

Failure to make reasonable adjustments

The DDA requires schools to take reasonable steps to ensure that pupils or prospective pupils are not placed at a substantial disadvantage in comparison with pupils who do not have a disability. The duty is an anticipatory one, which means that schools will need to identify where disabled pupils could suffer substantial disadvantage.

Reasonable adjustments then need to be made in any areas where it has been identified that disabled pupils could suffer substantial disadvantage. Discrimination on the grounds of failure to make reasonable adjustments occurs if:

• the school fails to take reasonable steps to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage in comparison with their non-disabled peers;
• the failure to make adjustments results in a child suffering substantial disadvantage because of his/her disability; and
• the failure to make reasonable adjustments cannot be justified.

For further information on the DDA, see NASUWT Advice on the DisabilityRights Commission Codes of Practice for Schools and Post-16.

The Relationship Between Disability and Behaviour

The following examples cover disabilities that may affect behaviour and explain

how the Disability Discrimination Act works in practice.

Example: Autistic Spectrum Disorders[2]

A pupil with autism goes to the front of the dinner queue. A member of staff standing nearby tells him not to ‘barge in’. The pupil becomes anxious but does not move. The teacher insists that the pupil must not ‘jump the queue’. The pupil becomes more anxious and agitated and hits the teacher. The pupil is excluded temporarily from the school.

1. Is it less favourable treatment for a reason related to the pupil’s disability?

The reason for hitting the teacher may be related to the pupil’s disability. Particular features of autism are that he has difficulty in managing social situations, he has difficulty in understanding the purpose of a queue, he has difficulty in understanding figurative language such as ‘barge in’ and ‘jump the queue’ and he has difficulty in managing escalating levels of anxiety. If the hitting is related to these features of his autism then the exclusion is for a reason related to the pupil’s disability.

2. Is the pupil’s treatment less favourable treatment than someone gets if the reason does not apply to him/her?

It is less favourable treatment than someone would get if they had not hit the teacher.

3. Can the less favourable treatment be justified? What the school would need to do to show that its action was justified:

The less favourable treatment is likely to be justified in terms of the order and discipline of the school. Any assault is likely to constitute a material and substantial reason justifying exclusion.

However, before a school could use these reasons to justify its action it would need to show that it had considered how it could manage the pupil’s behaviour, have considered what reasonable adjustments would be needed to prevent an incident like this from occurring, to protect staff, and have taken steps to implement these adjustments, and taken appropriate action to protect staff.

The example relates to an actual incident:

The school had developed strategies for managing the pupil’s behaviour in the classroom. However, the school had not taken steps to raise the awareness of all staff to the features of autism, and of strategies for avoiding difficulties that might arise. The school’s Behaviour Support Plan made no reference to disability issues. Most staff were unaware of the strategies that had been agreed for managing the pupil’s behaviour. In light of this, it is unlikely that the school would be able to justify the less favourable treatment and could be vulnerable to claims from staff assaulted as a result of this.

Example: Attention Deficit Hyperactivity Disorder (ADHD)

A pupil with ADHD is temporarily excluded from school for being abusive to a member of staff. The boy was sometimes disruptive in class, had been abusive to staff and had hit other pupils on a number of occasions. He had been temporarily excluded from the school on several other occasions.

1. Is it less favourable treatment for a reason related to the pupil’s disability?

The reason for the pupil being excluded is that he was abusive towards the teacher. Particular features of ADHD are that he finds it difficult to concentrate, follow instructions and complete tasks. The pupil becomes agitated and aggressive when he is shouted at or placed in stressful situations. Therefore, the less favourable treatment is likely to be for a reason that is related to his disability.

2. Is the pupil’s treatment less favourable treatment than someone gets if the reason does not apply to him/her?

The boy was excluded because he was abusive to the teacher. This is less favourable treatment than someone would get if they had not been abusive to the teacher.

3. Can the less favourable treatment be justified? What the school would need to do to show that its action was justified:

The fixed-term exclusion could be justified in terms of the behaviour and discipline of the school. The repeated offence of verbal abuse towards a teacher is likely to be a material and substantial reason for exclusion. However, before the school could use these reasons it would need to show that it had considered how it could manage the pupil’s behaviour, that it had considered what adjustments would be needed to prevent an incident like this from occurring, and show that it had taken steps to implement the reasonable adjustments.

The example relates to an actual incident:

The school had prepared a support plan to manage the pupil’s behaviour. However, the plan did not provide a graded response for dealing with poor behaviour. The expectation was that the pupil should conform to the general expectation of behaviour, although this was not consistently applied. The school’s approach to behaviour support planning was weak and, critically, the school did not have agreed procedures for raising staff awareness of:

• the pupil’s condition; and
• strategies for managing the pupil’s behaviour.

Reasonable adjustments could have been made but were not. Therefore, the school would be unlikely to be able to justify the less favourable treatment.

Example: Tourette’s syndrome[3]

A pupil with Tourette’s syndrome is stopped from going on a school visit becausehe has used abusive language in class. The school has a policy of banning pupilsfrom school trips and after-school activities if they swear or are abusive to staff.

1. Is it less favourable treatment for a reason related to the pupil’s disability?

The reason for not allowing the pupil to go on the school visit is his use of abusive language. His involuntary swearing is a symptom of his Tourette’s syndrome. This means that the pupil is being treated less favourably for a reason related to his disability.

2. Is the pupil’s treatment less favourable treatment than someone gets if the reason does not apply to him/her?

In this case, the pupil who used abusive language was treated less favourably than pupils who had not used abusive language. So for a reason that relates to his disability, the boy is being treated less favourably than another child to whom the reason does not apply.

3. Can the less favourable treatment be justified? What the school would need to do to show that its action was justified:

The school might argue that inclusion of the pupil on the visit would make maintenance of discipline impossible. This could constitute a material and substantial reason.

However, before the school could use these reasons to justify its action, it would need to show that it had considered the extent to which the disabled pupil’s behaviour could have been managed. It would need to have considered whether reasonable adjustments could have been made to its policies and procedures, and it would need to show that it had made reasonable adjustments in terms of managing the pupil’s behaviour and amending policies and procedures.

The example relates to an actual incident:

The school normally had reasonable adjustments in place; the school usually managed the introduction of new ideas and time pressures very carefully since both of these factors tended to exacerbate the effects of the pupil’s impairment. However, in this particular instance, a supply teacher was taking the class on the trip and the supply teacher failed to make the adjustments that were normally made for the pupil. Reasonable adjustments might have been made but were not. Therefore, the school is unlikely to be able to justify the less favourable treatment.

Steps To Avoiding Discrimination

What governors and senior managers should do

1. Ensure that the policies and procedures that relate to behaviour set out how the school will address equality issues, including those relating to disability and behaviour. This will help to ensure that issues relating to disability and behaviour are addressed systematically and consistently. It will also help to ensure that they are not treated as an additional task which could place unnecessary burdens on staff.
2. Monitor the implementation of behaviour-related policies and procedures, and evaluate their effectiveness in dealing with disability behaviour-related issues.
3. Arrange training for all staff and governors on their roles and responsibilities. Provide regular training and information on disability issues. Ensure that the school provides training and/or briefings for temporary or supply staff. This might include information about particular types of disability, developing strategies for managing behaviour, including strategies for overcoming difficulties that occur, and the school’s policies and procedures. In many cases, training on disability issues could be integrated into mainstream training programmes and should take place within the normal school day without increasing the working hours or burdens of staff, including those who work on a part-time basis.
4. Ensure that all risk assessments address disability issues, including issues that relate to behaviour management. Risk assessments should include an assessment of the health and safety implications for staff and other pupils.
5. Ensure that the school admissions procedures enable the school to identify whether a pupil applying to the school has a disability and, if so, the nature of the disability. Also ensure that the school has systems for recording if a pupil already on the school roll is identified as having a disability.
6. Ensure that the resources needed to support a pupil are identified when the pupil is admitted to the school.
7. Ensure that the school has systems in place to ensure all staff who could come into contact with a specific pupil, including temporary staff, know about and can effectively implement appropriate strategies for dealing with that pupil’s behaviour. Monitor the implementation and effectiveness of communication and referral channels.
8. Undertake a needs assessment of individual pupils with behaviour problems that relate to their disability, involving the pupil and parents/carers and where appropriate consulting specialist staff or external agencies. Identify strategies for addressing behaviour management issues and include these in relevant pupil plans such as the Individual Education Plan.
9. Ensure tasks for managing disability-related behaviour are clearly defined and set out in relevant procedures. These should make it clear that teachers are not required to undertake routine administrative tasks related to the management of behaviour. There should be a clear delineation between the roles and responsibilities of teachers and support staff, in line with the objectives of the National Agreement ‘Raising Standards and Tackling Workload’.
10. Use specialist staff to help in dealing with specific behaviour issues that relate to disability. Ensure that specialists work closely with other staff, including providing advice and feedback.
11. Deal with ALL incidents of discrimination, bullying, and harassment promptly and firmly. Ensure that victims of different discrimination, bullying or harassment have access to, and receive, appropriate and sensitive support.

What all teachers should do

1. Attend relevant and appropriately provided training on behaviour management and equal opportunities matters provided by the school so that they are familiar with the school’s policies and procedures for managing pupil behaviour, addressing disability discrimination and promoting equal opportunities, and understand what they are required to do. Training should be arranged within working time.
2. Make use of relevant guidance on behaviour management and equal opportunities that is issued by the school or the local authority.
3. Contribute, as appropriate, to assessments of individual pupils with behaviour problems that relate to a disability. Time should be made available for this.
4. Contribute to the implementation of a pupil plan, for example the Individual Education Plan, where appropriate.
5. Work closely, as appropriate, with other staff, including specialists to support pupils.
6. Follow the school’s behaviour and equalities policies and procedures, and deal with all incidents of discrimination, bullying and harassment promptly and consistently.
7. Raise any difficulties that relate to the implementation of behaviour and disability equality policies and procedures with a member of the school’s Senior Management Team.

Questions And Answers

Does the Disability Discrimination Act (DDA) mean that the school cannot exclude a pupil with a disability who behaves badly?

No. Exclusion may be an option open to the school if a pupil with a disability behaves badly. If a pupil behaves badly and the behaviour is not directly related to the pupil’s disability then the school would be expected to treat the pupil like any other pupil. In such cases, exclusion and other sanctions against poor behaviour would be justified.

If the pupil’s poor behaviour is directly related to the pupil’s disability then the school will need to have considered what steps it could take to manage the pupil’s behaviour. It will also need to have made reasonable adjustments to manage the pupil’s behaviour. This might include reviewing policies and procedures or behaviour management strategies for the individual child, and providing staff training. If the school has done these things, then exclusion or another sanction might be justified.

Does avoiding discrimination on the grounds of disability mean that schools will be faced with lots of bureaucracy, that staff need to receive lots of training, and that staff will be inundated with information?

Schools should aim for a co-ordinated and systematic approach to minimise bureaucracy and burdens on staff. A co-ordinated and systematic approach should mean that a school’s work on disability should be linked to the school’s existing arrangements for strategic planning and decision making. As far as possible, training and information on disability should be built into existing programmes and channels for communicating information.

What happens if the school fails to comply with a SENDIST tribunal decision?

The decision made by the Special Educational Needs and Disability Tribunal (SENDIST) is legally binding. If a school fails to comply with SENDIST’s order then the Secretary of State can make a direction to require compliance. If necessary this can be enforced by the courts.

In Scotland, claims of unlawful discrimination are made to the Sheriff Court. Schools are required to comply with the decision of the Sheriff Court.

If a pupil has a condition such as Attention Deficit Hyperactivity Disorder (ADHD) that requires a clinically recognised medical diagnosis, could the school be guilty of discrimination if the diagnosis is made after an alleged incident of discrimination has occurred?

The school could be found guilty of discrimination on the grounds of disability if the diagnosis postdates the incident and if the sanctions taken by the school are for behaviour that is directly related to the pupil’s disability. In order to avoid discrimination the school would need to show that it had considered what steps it could take to manage the pupil’s behaviour and that it had made reasonable adjustments to manage the pupil’s behaviour.

What should I do if there is a child in my class who is not being given appropriate support to cope with his disability-related behaviour?

You should raise your concerns with the Special Educational Needs Co-ordinator (SENCO) and with the headteacher. The school has a responsibility to consider how it can manage a pupil’s disability-related behaviour and to make reasonable adjustments to manage that behaviour. If the school fails to do this then it runs the risk of being found guilty of discrimination on the grounds of disability. It is important both that the pupil’s needs are met and that you are given the appropriate resources and support to enable you to teach the individual pupil and other pupils in your class. If the school continues to fail to provide the pupil with appropriate support then you should speak to your NASUWT Representative.

Where To Get Futher Help

NASUWT

NASUWT Advice on the Disability Rights Commission Codes of Practice for Schools and Post-16 Behaviour Management: Primary, Secondary and Special Schools

Disability Rights Commission

Website: www.drc-gb.org (new window)

National Association of Schoolmasters Union of Women Teachers

Hillscourt Education Centre, Rose Hill, Rednal, Birmingham B45 8RS

Tel: 0121 453 6150 Fax: 0121 457 6208/9

E-mail: nasuwt@mail.nasuwt.org.uk

Website: www.teachersunion.org.uk