X Endowed Primary School v Special Educational Needs and Disability Tribunal & Ors [2009] EWHC 1842 (Admin)
This case is authority for the proposition that where a disabled person has a protected impairment under the DDA which manifests itself in a form falling within one of the conditions excluded by Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996, the focus should be on whether any alleged discrimination relates to the excluded condition or to the protected disability or to both.
Excluded conditions include:
- addictions, other than as a result of the substance being medicinally prescribed, eg alcoholism, drug dependency or smoking addiction;
- deliberately inflicted disfigurements such as tattoos which have not been removed, skin piercing and something attached through such piercing;
- mental health problems that are not clinically well-recognised, eg a * personality disorder;
- seasonal allergic rhinitis (eg hay fever), except where it aggravates the effect of another impairment such as unstable asthma, or severe chronic irreversible airflow limitation;
- tendency to set fires;
- tendency to steal;
- tendency to physical or sexual abuse of other persons;
- exhibitionism;
- voyeurism;
- problems with standard vision, corrected by contact lenses or spectacles.
JT was excluded from the Appellant School for scratching a teacher. He suffers from ADHD (a protected disability) which causes sufferers to act aggressively in certain provocative situations. The School appealed the Special Educational Needs and Disability Tribunal's finding that it had failed to make reasonable adjustments, arguing that the only aspect of JT's ADHD in respect of which there was need to make an adjustment was his tendency to physical abuse of other persons (an excluded condition under the Regulations).
The Equality and Human Rights Commission, supporting JT's parents, argued that the Regulations only applied to free standing conditions and not to consequential symptoms of an impairment. Mr Justice Lloyd Jones rejected this and in so doing preferred Edmund Nuttall Limited v Butterfield (2005) over Murray v Newham CAB (2003), both EAT decisions. The fact that the tendency to physical abuse was a manifestation of a protected disability did not remove it from the Regulations' scope. On the facts, there was a failure to make reasonable adjustments in respect of JT's protected disability.
Claimants/ appellants may wish to argue that where there is an underlying protected disability and an excluded condition, the issue is one of reasonable adjustments for the protected disability even where any failure to make adjustments causes the excluded behaviour.