School Behaviour Policies, Isolation Booths and Reasonable Adjustments for Autistic Students

This is a topic of great concern for many autistic young people and their families. Children and young people with SEN and conditions such as autism are often disproportionately affected by the use of strict behaviour policies, and new research has found that many are ending up in isolation booths for prolonged periods. There is evidence that this is damaging to their mental health and education, in addition to being wholly ineffective for children with such difficulties.

In this blog I will:

Examine behaviour policies and isolation booths and where the law can be found relating to them;
Detail ways in which autistic students may be negatively affected;
Discuss the legal duty to make reasonable adjustments, in particular with regard to behaviour policies;
List a number of potential reasonable adjustments; and
Examine what positive action is.

I will outline the legal powers and duties of schools mainly by reference to the official advice to headteachers by the Department for Education. This guidance is kept under review and updated from time to time. I have used the most current version at the time of writing, which was last updated on the 4^th January 2016 and is currently still in force.

Where I have quoted documents and guidance, I have sometimes highlighted key parts of the text that I think are particularly important for autistic students, by making the text bold.

School Behaviour Policies

In maintained schools, it is the headteacher who has responsibility for deciding and setting the standard of behaviour expected of students, and any rules and disciplinary measures. They must take account of the governing body’s statement of behaviour principles.

All schools have a behaviour policy. This is a document that sets out how students’ behaviour is managed, usually including what forms of punishment are used, as well as what types of behaviour will breach the policy, and how escalations of breaches are handled. They should also detail how parents can engage with the process and how any complaints can be lodged (though this may be by way of reference to a separate complaints procedure).

Autistic parents should also note that the school has a duty to make reasonable adjustments to the complaints procedure for parents who have a disability (including autism).

The Government website states, “Every school has a behaviour policy, which lists the rules of conduct for pupils before and after school as well as during the school day. The policy should also say what the school does to prevent bullying.”

“The headteacher must publicise the school behaviour policy, in writing, to staff, parents and pupils at least once a year. The school’s behaviour policy must be published on its website (School Information (England) Regulations 2008). Where they do not have a website the governing body should make arrangements for the behaviour policy to be put on a website and to make the address and details (of the website) known to parents” – Behaviour and discipline in schools: guidance for headteachers and staff

Rules for Academies: “The proprietor of an Academy school [needs] to ensure that a written policy to promote good behaviour among pupils is drawn up and effectively implemented. The policy must set out the disciplinary sanctions to be adopted if a pupil misbehaves. Information about the school’s behaviour policy must be made available to parents on request. While Academies are not required by law to publish their behaviour policy on their website, it is good practice to do so.”

You can ask the school for a copy of their behaviour policy document.

The governing body of the school “must provide clear advice and guidance to the head teacher on which [they] can base the school behaviour policy.” – Guidance for governing bodies

Section 88(2) of the Education and Inspections Act 2006, “requires the governing body to:

Make, and from time to time review, a written statement of general principles to guide the head teacher in determining measures to promote good behaviour and discipline amongst pupils; and

Notify the head teacher and give him or her related guidance if the governing body wants the school’s behaviour policy to include particular measures or address particular issues.”

This means that a governing body could specifically include guidance and aims to address response to students with SEN and conditions such as autism if it wanted to. It is important to note that governing bodies do have parent representatives and many local councillors sit as representatives on the governing body of their local school. These representatives could potentially be avenues of communication for people concerned about a school’s response to autistic students who breach a behaviour policy.

As a ‘public body’, governing bodies of schools also have a duty to comply with section 149 of the Equality Act 2010. This is a general duty to eliminate discrimination. Autism is included as a disability and is considered to be a ‘protected characteristic’ for the purpose of equality and human rights law. This means that the governing body must;

Have regard to the need to “remove or minimise disadvantages” that are suffered by autistic students (when those disadvantages are connected to the student’s autism).

Have regard to the need to take steps to meet the needs of autistic students that are different to the needs of non-autistic students, which includes in particular steps to take account of the autistic student’s autism.

Have due regard to the need to foster good relations between autistic people and those without disabilities (including staff), in particular the need to tackle prejudice and promote understanding.

Section 149 explicitly states that, “Compliance with the duties in this section may involve treating some persons more favourably than others.” This would be likely to extend to treating those with a condition such as autism, more favourably for the purposes of implementing behaviour guidance.

The Powers That Schools Have to Implement Behaviour Policies

“Teachers have statutory authority to discipline pupils whose behaviour is unacceptable, who break the school rules or who fail to follow a reasonable instruction (Section 90 and 91 of the Education and Inspections Act 2006).

The power also applies to all paid staff (unless the headteacher says otherwise) with responsibility for pupils, such as teaching assistants.
Teachers can discipline pupils at any time the pupil is in school or elsewhere under the charge of a teacher, including on school visits.
Teachers can also discipline pupils in certain circumstances when a pupil’s misbehaviour occurs outside of school.” – Behaviour and discipline in schools: guidance for headteachers and staff

Teachers have the power to impose punishments for poor behaviour, however these must be lawful. The main law detailing the use of punishments, known as “disciplinary penalties”, is the Education and Inspections Act 2006, sections 88-111. Section 90 gives a detailed definition of disciplinary penalty and makes it clear that they include penalties imposed due to a student failing to comply with a previous penalty.

“To be lawful, the punishment (including detentions) must satisfy the following three conditions: 1) The decision to punish a pupil must be made by a paid member of school staff or a member of staff authorised by the headteacher; 2) The decision to punish the pupil and the punishment itself must be made on the school premises or while the pupil is under the charge of the member of staff; and 3) It must not breach any other legislation (for example in respect of disability, special educational needs, race and other equalities and human rights) and it must be reasonable in all the circumstances.”

“A punishment must be proportionate. In determining whether a punishment is reasonable, section 91 of the Education and Inspections Act 2006 says the penalty must be reasonable in all the circumstances and that account must be taken of the pupil’s age, any special educational needs or disability they may have, and any religious requirements affecting them.”

“Schools should have in place a range of options and rewards to reinforce and praise good behaviour, and clear sanctions for those who do not comply with the school’s behaviour policy. These will be proportionate and fair responses that may vary according to the age of the pupils, and any other special circumstances that affect the pupil.”

Headteachers do have a fairly wide discretion as to the content of the behaviour policy, including around which staff have authority to issue various punishments, and what punishments are used. The guidance for headteachers offers much more detail as to the powers available to staff, however the following considerations will be important when implementing punishments for autistic students:

Detentions: “As with any disciplinary penalty a member of staff must act reasonably given all the circumstances [including SEN], when imposing a detention.” “School staff should not issue a detention where they know that doing so would compromise a child’s safety.” “Whether the parents ought to be informed of the detention. In many cases it will be necessary to do so, but this will depend on the circumstances.” Given the damage that disruption to an autistic student’s routine can do, it is very likely that their parents will need to be informed.

Reasonable Force: “Members of staff have the power to use reasonable force to prevent pupils committing an offence, injuring themselves or others, or damaging property, and to maintain good order and discipline in the classroom. Head teachers and authorised school staff may also use such force as is reasonable given the circumstances when conducting a search without consent for knives or weapons, alcohol, illegal drugs, stolen items, tobacco and cigarette papers, fireworks, pornographic images or articles that have been or could be used to commit an offence or cause harm. Schools can also identify additional items in their school rules which may be searched for without consent. Force cannot be used to search for these items.” Please note there is separate and more detailed guidance for staff on the use of reasonable force.

Isolation Booths

Isolation booths (also called seclusion rooms) are a form of punishment used in many primary and secondary schools. They typically involve a child who is being disciplined, being put inside a room either on their own (supervised by a designated staff member but without direct teaching), or if there are facilities for more than one child, they will be separated by segregated booths. The child will usually be given work to complete, will be accompanied and supervised to take a toilet break or fetch lunch, and will usually have to complete a follow up procedure involving steps such as discussions with leadership/behavioural team staff, agreeing future behaviour/repercussions, and an apology.

Ofsted guidance states, “Terms such as time out, isolation, chill out, or single separation may suggest that a child has had their liberty restricted. Locking a door is only one method of preventing someone from leaving a room. Other methods, including leaving alone a disabled child who cannot move independently or a real and/or perceived threat to the child, can equally be a restriction.” It also highlights that even positive interventions, may become restrictive, “If children cannot easily leave, or are being actively discouraged by staff from leaving equipment such as sensory rooms or tents, then that could become a restriction.”

Parents should be aware of whether a particular punishment used by a school amounts to a restriction of a student’s liberty and should ensure they know the terminology for such punishments that the school uses. This may help them to be aware of whether a student has been given such a punishment.

Isolation is usually intended to last for half a day to a whole day but can go on for longer. In some cases, children are being placed in isolation for over 5 days. There is concern that some children are appearing in isolation booths on too regular a basis. One case has recently hit the headlines due to a child reportedly being placed in isolation over 240 times, including every day between mid-January and March this year. Professionals have also spoken out against the practice of sending children to isolation for very minor things such as “turning round in class, or speaking to canteen staff.”

The headteacher’s guidance states, “Schools can adopt a policy which allows disruptive pupils to be placed in an area away from other pupils for a limited period, in what are often referred to as seclusion or isolation rooms.

“If a school uses seclusion or isolation rooms as a disciplinary penalty this should be made clear in their behaviour policy. As with all other disciplinary penalties, schools must act reasonably in all the circumstances when using such rooms [including having regard to a student’s SEN].” Therefore, parents should be made aware by the behaviour policy whether isolation is used at the school and what exact name the school refers to it by.

“Any use of isolation that prevents a child from leaving a room of their own free will should only be considered in exceptional circumstances. The school must also ensure the health and safety of pupils and any requirements in relation to safeguarding and pupil welfare. It is for individual schools to decide how long a pupil should be kept in seclusion or isolation, and for the staff member in charge to determine what pupils may and may not do during the time they are there. Schools should ensure that pupils are kept in seclusion or isolation no longer than is necessary and that their time spent there is used as constructively as possible. Schools should also allow pupils time to eat or use the toilet.”

There will be big differences in the impact that isolation has on autistic students compared to non-autistic students and it is likely that the above criteria of pupil welfare, spending time constructively, and being allowed toilet and food breaks will not be met if applying the punishment in a standard way without adjustments.

Ofsted Inspections – New Guidance

On 23^rd March 2018, the Government published new guidance for Ofsted Inspectors called ‘Positive environments where children can flourish’. This is “Guidance for inspectors about how to approach the use of physical intervention, restraint and restrictions of liberty in social care settings and schools.”

Inspectors can “legitimately set out to question and understand any type of physical intervention or restriction on children’s lives, including the use of isolation/seclusion in schools.” “We should question and seek to understand any use of isolation or seclusion in any setting. Some pupils are likely to feel locked in even if they are not. A threat or the presence of staff outside the door may be enough to keep them from leaving of their own free will. Inspectors will explore these incidents if they believe that this has happened. Whether an act is called seclusion or isolation should not be our focus. Children’s experiences are what matters.”

Problem Areas for Autistic Students

Key ‘cultural markers’ are often used by schools as part of a behaviour strategy, as a way of asserting a school’s social identity, encouraging shared values and cultivating positive behaviour in students. Many of the most common areas for such activity are likely to cause problems for autistic students.

Assemblies – assemblies for an autistic student are often difficult. Examples of issues that can arise due to an assembly are: a break in the autistic student’s normal routine, having no set seating plan, uncomfortable sensory input or overload (temperature changes, loud echoey noises, clapping, inability to hear a sole speaker at the front due to background noise, being sat too closely to other students, uncomfortable seating, harsh lighting), having to maintain attention span for longer than possible, being anxious if the student does not know whether they will be called up to the front (to receive an award, etc).

Timekeeping, homework and stationary/equipment – organisational requirements are likely to cause more problems for autistic students due to difficulties with executive function. Even those who traditionally may have fallen on the ‘Asperger’s’ part of the spectrum, do not experience strong meltdowns and who are not considered ‘naughty’ students may find themselves falling foul of school rules that take a strict approach to these issues. It is important to understand that these students are not deliberately ‘disorganised’ or ‘lazy’, though often, especially if the student in question is high-achieving, they may act as though they have chosen to be this way in order to save face. Here, behaviour policies that tackle the students about such matters in front of other students, and those that fail to offer any support for students struggling, are likely to negatively impact students and potentially damage their attitude to school as a whole.

Uniform – Rules around uniform again require executive functioning, which is impaired in autistic students, and this is likely to tie in with rules around time keeping. If a student is struggling to keep their uniform at home organised, or is running late for school, their uniform may not be up to standard. There are also sensory issues tied in with uniforms, which are often very uncomfortable for autistic students to wear. Schools who do not have gender neutral uniform policies are also likely to disproportionately distress autistic students, who often do not conform to gender stereotypes, and may not be comfortable wearing certain pieces of uniform in line with their expected gender.

Other ways in which autistic students may be unfairly targeted by standard behaviour policies:

Autistic students will likely have a strong sense of justice and if a perceived injustice has occurred then this will often provoke a strong reaction from the student that will usually be beyond their control. This could be something such as they are talking to another student, when they shouldn’t be, but whereas the neuro-typical student is able to whisper and pick up on social cues around them to know when to stop so the teacher doesn’t catch them, the autistic student will be louder and blatant. If the autistic student is then told off but the teacher misses their neurotypical friend who does not get told off, the autistic student will not be able to let this go and will likely argue back to the teacher and continue to protest about this injustice.

Autistic students often do not lie. They may say things that aren’t true because they have perceived or processed something incorrectly. To be accused of lying when they do not think they are is likely to cause the student distress and again provoke an argumentative response.

Autistic students may interpret a rule literally or incorrectly and misapply it when trying to comply. This includes when being given instructions during punishments such as isolation, and may mean they do not use toilet breaks or lunch breaks appropriately, or even at all.

Some forms of autism, such as PDA, or demand avoidant behaviour related to anxiety in autistic students, mean that the student may struggle with following certain rules if they are worded or given in the form of demands, including subtle demands. This is especially so where the student is not given a good reason for a rule. Many school rules may seem unnecessary to students, such as a school tie needing to be a certain length. This is likely to cause huge problems for autistic students who may struggle with executive function and therefore find such rules more difficult to comply with. If they are having to use up more energy to comply with something, they are likely to be distressed if they cannot understand a good reason for it.

Many autistic students struggle to interpret consequences, and struggle to consider how events may hypothetically play out. Therefore, they may genuinely have not been able to consider how their behaviour would impact others. This also can affect how autistic students can process the cause of a punishment, and in many cases, the student will not be able to link their behaviour to the punishment. This means that many forms of traditional punishment are ineffective, as there is no possibility that it can serve as a deterrent. They may also interpret the punishment as being given simply because the staff member does not like them, which in turn damages their trust in staff.

Some autistic students may struggle with punishments that insist on some sort of apology and evidence of remorse. Many autistic students, especially those who are of a younger age, may struggle to understand how behaviour has impacted on others, and may be unable to move beyond a perceived injustice to themselves, or a lack of understanding by others on how an incident has impacted on the autistic student themselves. This is often the cause behind students with SEND ending up repeatedly infringing behaviour policies by being punished several times arising from just one incident, after not fully complying with the follow up stages of the original punishment.

Reasonable Adjustments – Legal Provisions and Guidance

It is unlawful for a school to discriminate against a student in relation to the provision of education, which includes when implementing behaviour policies. The most likely ways that a behaviour policy may discriminate against autistic students are by:

Indirect discrimination;
Discrimination arising from disability;
Failure to make reasonable adjustments (for disabled people).

“The behaviour policy should acknowledge the school’s legal duties under the Equality Act 2010, in respect of safeguarding and in respect of pupils with special educational needs (SEN).” – Behaviour and discipline in schools: guidance for headteachers and staff

The official guidance for headteachers states, “It is vital that the behaviour policy is clear, that it is well understood by staff, parents and pupils, and that it is consistently applied.” Therefore, pupils with conditions such as autism should also be able to understand ‘well’ the behaviour policy. This may require it to be produced in an easy read format or with extra explanations to ensure this outcome.

The Equality Act requires schools to make reasonable adjustments for disabled students, including autistic students, to exclusion processes and to disciplinary sanctions imposed. The duty to make reasonable adjustments applies to all schools, including independent schools.

In 2017, Tom Bennett’s independent review on behaviour in schools was published, after he was appointed to advise the Government. His advice states, “In particular, where a student has a disability that affects their behaviour, the school must make reasonable adjustments.

“To use an example previously quoted by the Equality and Human Rights Commission, if a school has a policy that if a pupil breaks the school rules on three occasions, he or she will automatically be given a detention. Their legal duties over equality will be relevant. Some disabled students, such as those with attention deficit hyperactivity disorder, autistic spectrum disorders or learning difficulties, are much more likely to break the school rules than other students. Rigid application of this policy would be likely to amount to indirect disability discrimination because, where a reasonable adjustment has not been made, a school will find it very difficult to justify the treatment as a proportionate means of achieving a legitimate aim. However, schools must still always aim high. A school should do as much as possible to demonstrate high expectations of all students, and to scaffold the best behaviour that a student is capable of, otherwise there is a risk that some students with SEND will suffer from the poverty of low expectations.”

Removal from lessons – “All students have a right to learn. This means that if a student is making it impossible for a teacher to teach or students to learn, and in-class strategies have been attempted, they must be removed from the lesson temporarily until the situation can be resolved in some way.” There is generally no dispute from autistic students and their families that behaviour, even if it is not the autistic student’s fault, may mean it is necessary for them to come out of the lesson. The issue is what then happens to the student and whether action is taken to address the cause of the student’s problems.

“Removal can be temporary, or for a more extended period. If the reason for the removal is poor behaviour, then consequence systems must be used. If circumstances warrant it the school should consider if the student needs more extended support. However, what happens next to the student is crucial. The response must be appropriate, fair, and targeted at helping the student improve their behaviour.” – Tom Bennet

Tom Bennet’s review also describes the ‘three R’s of the behaviour curriculum’ in the extract from the findings of the 2016 ITT20 working party, which was tasked with reformulating the core training offer for new teachers in behaviour management. This states that behaviour training should “focus on three areas that are essential for the design and maintenance of ordered, safe and productive classrooms,” these are routines, responses and relationships.

Under the ‘relationships’ heading is included: “regulating one’s own emotional state; understanding personal triggers in one’s own behaviour, expectations or reactions; how special educational needs and disability (SEND) affects behaviour. Understanding for example: attention deficit hyperactivity disorder (ADHD), autism, dyslexia, Asperger’s; the basic psychology of: motivation; long and short-term memory; concentration; learning; cognitive load, spacing and interleaving; group dynamics.”

The government has also published a response letter to Tom Bennett’s behaviour in schools review.

This details that there will be reforms to the National Professional Qualifications (NPQs) for school leadership staff (delivered from the academic year 17/18). New content is stated to specifically address issues around behaviour and students with SEND.

The government’s response also states that “with some pupils, such challenging behaviour may of course reflect a wide range of social and emotional difficulties, including underlying mental health difficulties or disorders such as attention deficit disorder, attention deficit hyperactive disorder or attachment disorder. The SEND Code of Practice spells out the approach we would expect schools to take in relation to SEND.”

The recent Ofsted guidance states, “Reasonable adjustments should be made to ensure that expectations of pupils who have special educational needs and/or disabilities are developmentally appropriate and fair. It would not be fair, for example, to isolate a child who has attention deficit hyperactive disorder (ADHD) or other special needs because they were not able to sit still when required to do so. Equally, for some children in care the experience can reinforce trauma and/or result in an escalating scenario that leads to disciplinary measures for the child.”

It is not direct discrimination against a non-disabled pupil to treat a disabled pupil more favourably.

Example: “A pupil with Asperger’s syndrome can sometimes act in a disruptive manner in class. The school does not take disciplinary action but uses agreed strategies to manage their behaviour. A non-disabled pupil who is also disruptive in class is punished for their behaviour. This difference in treatment would not be direct discrimination against the non-disabled pupil” – Equality and Human Rights Commission

Unfavourable treatment of autistic students will not amount to discrimination arising from disability if the school can show that the treatment is a ‘proportionate means of achieving a legitimate aim’. This ‘objective justification’ test can also lawfully excuse indirect discrimination and is discussed below under the section entitled ‘Human Rights’. The burden is on the school to justify the treatment. This must be based on evidence and should not rely on generalisations and assumptions.

It is not discrimination if the school can reasonably claim that they did not know about the student’s disability. This means the fact of their difficulties rather than needing to know they are legally classed as disabled. There is also a duty on schools to do all it reasonably can to find out whether students are disabled. It is also unlikely that a school can say it did not know about a disability simply due to lack of communication between staff, including administrative or other non-teaching staff.

A school’s duty to make reasonable adjustments is anticipatory and owed to disabled pupils generally. This means that schools should be thinking in advance about what autistic students might need and what adjustments might be necessary, including with regard to behaviour policies.

The fact that an autistic student may have an SEN statement or EHC plan, does not take away a school’s duty to make reasonable adjustments for that pupil, in addition to any agreed provision in an EHC plan.

The duty to make reasonable adjustments is triggered where there is a need to avoid ‘substantial disadvantage’, considered to be anything more than minor or trivial. The disadvantage is assessed in comparison with non-disabled pupils. The disadvantage to the student will not always be obvious, particularly where an ‘invisible’ disability such as autism is concerned. For example, an autistic student may be experiencing distressing sensory input such as uncomfortable noise from a nearby electrical device, which may be contributing to heightened anxiety and aggressive mood.

Legally, if a school does not implement an adjustment, it cannot justify not making a reasonable adjustment, the only question is whether the adjustment is reasonable or not in the first place. If it is deemed reasonable for the school to have made, they will likely be acting unlawfully.

Whether an adjustment is reasonable or not will depend on the individual circumstances of the student, school and surrounding factors. The guidance from the Equality and Human Rights Commission lists likely factors that will be considered. These are based on factors that tribunals and courts have previously taken into account when considering reasonable adjustments under the equivalent provisions in the DDA 1995. They are not an exhaustive list, but include;

SEN support relevant to the disadvantage in question that the student is already receiving;
The resources of the school and the availability of financial or other assistance;
The financial and other costs of making the adjustment;
The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
The practicability of the adjustment;
The effect of the disability on the individual;
Health and safety requirements;
The need to maintain academic, musical, sporting and other standards;
The interests of other pupils and prospective pupils (relevant only where the adjustment results in significant disadvantage for other pupils).

Where a school or local authority decides that there are no reasonable steps that it can take, it is important that it sets out its reasons for this decision. If adjustments have been requested and refused, parents can request an explanation of the school’s reasoning. It is against the law to charge parent’s for making reasonable adjustments for their child.

There are also a number of sections of the SEND Code of Practice that would support adjustments being made to a behaviour policy for students with SEN (which usually includes autistic students). The Code of Practice is statutory guidance that schools must follow to comply with their duties under the Children and Families Act 2014.

6.2 – “Mainstream schools, which in this chapter includes maintained schools and academies that are not special schools, maintained nursery schools, 16 to 19 academies, alternative provision academies and Pupil Referral Units (PRUs), must:

use their best endeavours to make sure that a child with SEN gets the support they need – this means doing everything they can to meet children and young people’s SEN,
ensure that children and young people with SEN engage in the activities of the school alongside pupils who do not have SEN” – This could be relevant where punishments are preventing autistic student’s from engaging in lessons, break times and extra-curricular activities.

6.9 – “All schools have duties under the Equality Act 2010 towards individual disabled children and young people. They must make reasonable adjustments, including the provision of auxiliary aids and services for disabled children, to prevent them being put at a substantial disadvantage. These duties are anticipatory – they require thought to be given in advance to what disabled children and young people might require and what adjustments might need to be made to prevent that disadvantage. Schools also have wider duties to prevent discrimination, to promote equality of opportunity and to foster good relations.”

6.33 – “Schools and colleges should have clear processes to support children and young people, including how they will manage the effect of any disruptive behaviour so it does not adversely affect other pupils.”

The powers under section 91 of the Education and Inspections Act 2006 clearly allows for a headteacher to only authorise certain members of staff to make decisions over punishments for a particular student or group of students. This means that autistic students could have designated and fully trained staff who they are referred to in the event of any behaviour policy breach, who can make decisions over the best way to proceed. This would allow for poor behaviour to be properly assessed by an objective member of staff who has understanding of how an environment or other circumstances may have caused the response from the autistic student.

Examples of Potential Reasonable Adjustments for Behaviour Policies

Specialist training for staff regarding autism and how this may affect behaviour of students.

Using different punishments for autistic students as opposed to those used for non-autistic students.

Not administering punishments for some behaviour by autistic students, where this is as a result of their autism (or response to their environment due to their autism), where the behaviour in question would incur punishment if committed by a non-autistic student.

Specially authorised staff to administer behaviour sanctions to autistic students, with different procedures in place tailored to meet the needs of autistic students.

Providing a specially formatted behaviour policy or student handbook containing rules and sanctions to autistic students, which could include extra explanations and reasons for certain rules, pictures and diagrams, and more detailed explanations of what will happen if certain sanctions are given.

Ensuring that any behaviour policy when applied to autistic students, is always consistent and applied in exactly the same way regardless of whether it is being administered by different staff.

Allowing an autistic student to communicate their account of what happened, including in non-verbal methods such as writing about it or producing a comic representation, and fully considering their perception of events before administering any punishment.

Allowing an autistic student time to become calm following an incident, including allowing time to use sensory aids.

Allowing an autistic student to speak to a member of staff with whom they have a good relationship.

Allowing an autistic student time to process questions before answering, including writing the questions down and allowing the student time to write answers out or consider them properly before giving verbal answers.

Taking the time to ensure that events are properly explored and that an autistic student hasn’t unintentionally given an incorrect impression of what has happened, for example; an autistic student may have been asked whether they hit another student, even if the autistic student had given another student a gentle push, an accidental push or a playful push, they may answer straightforwardly that they hit them and give an impression that they aggressively and deliberately hit the other student.

Allowing an autistic student to be involved in setting and monitoring their own targets, which are continually reviewed and updated by teaching staff.

Personalised reward systems implemented, which are known to all staff who have contact with the autistic student, and which are used consistently across the curriculum.

Frequency records of behaviour to be kept over time and analysed to consider triggers/patterns.

When behaviour can put the autistic student or others at risk of harm, a learner-specific plan for keeping the situation as safe as possible to be carried out by staff with appropriate training and regularly reviewed.

Frequent access to, or exclusive use of, a ‘Quiet Room’, calm place or sensory room, which is never used as a punishment, when the autistic student themselves requests the access.

Enhanced home-school liaison, for example an ongoing home-school diary which is completed daily.

Daily teaching of skills by experienced staff to address agreed targets on the autistic student’s pastoral support/behaviour action plan, for example 1:1 observations of their interactions with others with immediate helpful feedback.

Positive Action

Positive action is where a school actively takes certain steps in order to improve outcomes and overcome barriers for a certain groups of students. This is not an adjustment to an existing facility or provision of aids, but the provision of extra resources or action for a specific purpose. There is no duty on schools to take positive action.

“Schools that are subject to the public sector equality duty (schools maintained by a local authority and academies) may wish to consider using positive action to help them to comply with the duty and improve outcomes for particular groups of pupils.” This is the duty referred to previously with regard to governing bodies, under section 149 of the Equality Act 2010.

The Equality and Human Rights Commission guidance states that where a school reasonably thinks that students who share a protected characteristic, such as autism (disability), experience a disadvantage connected to that characteristic, then the school may take any action that is proportionate to meet any of the aims stated in the Act. Those aims (known as ‘the stated aims’) include ‘enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage’.

There must be some indication or evidence to support that students who are disabled are in fact experiencing the disadvantage. “However, it does not require a school to have sophisticated statistical data or research to show that this is the case; it may simply involve looking at the profiles of pupils and/or making enquiries of other schools in the area. Schools have a wealth of data that can be used as a basis for action, as well as relevant external research.”

I have altered the example used in the guidance to apply it to autistic students: ‘A school reviews its data on exclusions and finds that a disproportionate number of pupils who have been either temporarily or permanently excluded are autistic. The school also looks at data held at the local and national level, which supports the school’s own evidence. The school then runs some focus groups with autistic pupils and their parents to understand the reasons why these pupils are facing higher levels of exclusions. Following the consultation, the school implements a whole-school policy on tackling neurodiverse inequality and a programme of positive action that specifically targets these students’ needs. This includes parent and pupil workshops, extra staff training, visits from autistic role-models, PSHE lessons for all students covering neurodiversity, and extra classes on emotional literacy, communication skills, social skills and managing anxiety.’

There are legal questions that schools should consider before going ahead with positive action. These are detailed in the Equality and Human Rights Commission guidance. Additionally, “It is good practice for schools to consult with groups of pupils who share the protected characteristic, in question before deciding whether to take positive action, because this is likely to be helpful in identifying needs and evaluating possible actions. In addition, of course, it is advisable for schools to explain to staff, parents and pupils why positive action is being taken and what it comprises.”

Human Rights

Equality law is heavily connected to human rights law. Human rights obligations are usually considered when developing guidance on equality law and the main considerations will be covered by it. The majority of human rights are not absolute, which means that they can be departed from as long as it is for a legitimate aim, the departure is a proportionate response to achieving that aim, and the departure is provided for by law.

The key concern in the majority of cases arising from the use of behaviour policies in schools, will be whether the response or practice was proportionate, as schools are likely to be able to justify the aim as being legitimate where it is for the maintenance of educational standards, behaviour and the protection of other students.

Where equality law has not been complied with, it is likely that there may be breach of human rights as it is unlikely that the response or practice would be considered to be proportionate. Proportionate means both appropriate and necessary (though it doesn’t have to be the only possible way of achieving the legitimate aim). Costs and funding will not provide justification on its own for indirect discrimination but will be considered if there are other good reasons for a response or practice.

“In a case involving disability, if a school has not complied with its duty to make relevant reasonable adjustments, it will be difficult for it to show that the treatment was proportionate.”

Detailed guidance around equality law, human rights and schools can be found in the Technical Guidance for Schools by the Equality and Human Rights Commission. (The link here is to the guidance for schools in England, but separate guidance is available for Scotland and Wales)

Treatment of Autistic People Who Have to Attend a Court or Tribunal

At some point in their lives, it is very possible that an autistic person may find themselves embroiled in the justice system. Not only are autistic people more likely to be a victim of crime, but many also sadly experience the courts and police as defendants. This post will focus on potential support for the difficult experience of attending a court or tribunal as a witness or defendant, when you are autistic. This applies to both criminal and civil courts, therefore autistic people involved in family, employment and other civil claims can access the same support.

The Equal Treatment Bench Book Guidance

The ‘Equal Treatment Bench Book’ is guidance for judges. Judges have a responsibility to ensure that certain groups of people attending court are treated fairly and given an equal chance. This includes groups such as young people, people from minority ethnic groups and disabled people. The information in this guidance may assist autistic people in understanding what support could be provided for them. It is important to note that each person won’t always get the same adjustments as they are provided based on individual assessment and need. The adjustments discussed in this blog are not the only ones that may be available and should not be taken as a definitive list. A court will usually have the power to dispense with certain courses of action where it is in the interests of justice.

All of the quotes that I am using here are taken directly from the Equal Treatment Bench Book, which is available in full at: https://www.judiciary.uk/wp-content/uploads/2018/02/ETBB-February-2018-amended-March-2019.pdf – Please note that this is the current version, last updated in March 2019, but updates can and do happen fairly frequently.

“The guidance in the Equal Treatment Bench Book regarding disability, ‘is important advice which every judge and every justice of the peace is under a duty to take into account’.” Whilst this is guidance for judges, it is helpful for advocates, other court staff and anyone appearing in court to be aware of the information given, particularly as adjustments will be most effective if they are put in place from the beginning of the court process. It is also useful for autistic people and their legal representatives to be able to apply support before judicial intervention as this will help to reduce potential costs that may occur if lawyers are responding to an order, rather than having carried out adjustments to case management and documents beforehand.

Where in the Law Does it Give Authority for Reasonable Adjustments and Support in Courts and Tribunals?

Assistance for autistic people in court has a clear backing in law. As the guidance explains, “Witnesses and parties may be ‘vulnerable’ in court as a result of various factors. There is no general definition of ‘vulnerability’ under the law. However, the criminal justice system defines as ‘vulnerable’, those witnesses who are under 18, have a disability, or where various other factors apply… This makes them eligible for certain statutory ‘special measures’.” In addition to this, “the United Nations Convention on the Rights of Persons with Disabilities outlines in articles 12 and 13 the need for States to ensure equal recognition before the law and effective access to justice.” Autistic defendants also have the protection of Article 6, the ‘right to a fair trial’, of the European Human Rights Convention (directly enforceable in UK courts using the Human Rights Act 1998).

Young Autistic People in Courts

It is clear that young defendants in particular are more likely to have special needs. “A 2015 study has shown that up to 60% of young people in the youth justice system have speech, language and communication needs.” The guidance has a whole chapter dedicated to young people in the justice system, which I will not cover here, but it is important to know that youth courts have different procedures in place to adult courts and tribunals.

How are Adjustments and Support Decided Upon?

The first important point to note is that at the outset of proceedings, “each person with a disability must be assessed and treated by the judge or tribunal panel as an individual so that their specific needs can be considered and appropriate action taken. Failure to do this may result in a decision being overturned on appeal.” The guidance highlights that “Some courts have Mental Health Liaison and Diversion Services which can help with diagnosis, adjustments and support needs.” Judges have the power to sanction adjustments for autistic witnesses and defendants.

Lawyers are regulated and have to abide by a professional code of conduct. These codes give specific duties not to discriminate and to ensure that law firms and barristers’ chambers have up to date equality and diversity policies. Therefore, if an autistic person has involvement with a lawyer, they will be able to ensure that their conduct and service is suitable for the autistic person’s needs. The same goes for other agencies, such as the police, who may be dealing directly with an autistic person as a witness, victim or defendant.

There are then separate duties on the court and the judge to ensure that court or tribunal proceedings take account of the autistic person’s needs. This can be especially important where an autistic person is acting as a ‘Litigant in Person’ (where they appear in court on their own and unrepresented by a lawyer, possibly if they haven’t been able to afford one and can’t access legal aid).

The guidance for judges states, “When discussing someone’s possible needs in court:

Do not begin with any assumptions beyond those that are clearly justified by what is immediately and incontrovertibly evident.
The person involved should be addressed directly and in a normal manner unless and until it is clear that some other approach should be adopted.
Talk directly to the disabled person even if there is an interpreter, carer or personal assistant. Face this person if you can – with lip-reading this is particularly important.
Enquire as to what is needed rather than the nature and extent of the impairment, e.g. ‘Do you need assistance to read this?’ rather than ‘Is your sight impaired?’
If the condition is known, or disclosed, remember that within any condition there may be varying levels of impairment, so a general knowledge of the condition and its effects may be inadequate to deal with the particular individual appropriately, although it is a start.
People vary in their sensitivity about disclosing their impairment and those with disabilities are often reluctant to ‘make a fuss about them’, so any questioning needs to be sensitive. The disabled person may be embarrassed or self-conscious, but a judge needs to be aware of how the person is coping so as to ensure that further steps are taken as and when required. This must be ascertained without appearing patronising.

When Autistic People Have to Give Evidence in Court (Examination and Cross-Examination)

People who are a claimant/victim, witness, or respondent/defendant in a particular case, may be required to give evidence in a court or tribunal. This means that they will have to stand up and be questioned (usually by a lawyer) about the information they have that is relevant to the case.

‘Examination’ is where a lawyer or representative for the person themselves (or someone the person is there to support) will ask the person questions in order to get them to state the evidence they want to give to help their case.

E.g. Alice has had her bag stolen. The lawyer who is ‘on her side’ in court will be the lawyer for the Crown Prosecution Service (who are the people that work with the police and victims to bring criminals and suspects before a court). During ‘examination’, she will be questioned by this lawyer in a calm and sensitive way, to get her to explain to the court all the information that she needs to, about how her bag was stolen. The reason that Alice has to be questioned to do this, is because if she were to just get up and tell her version of what happened without the lawyer asking her questions about it, then she might not give all of the information that her case has to give in order to meet the strict criteria that is required by the criminal procedure rules. The rules are to make sure that people are not brought to court as suspects and made to defend themselves based on missing or incomplete evidence.

‘Cross-examination’ is where a lawyer or representative for the person’s opponent (or someone the person is there to give evidence against) will ask the person questions in order to challenge what they have come to court to say.

E.g. Alice has had her bag stolen. Sarah has been accused of stealing Alice’s bag and Alice has given information that suggests that Sarah has stolen it. Sarah will have a defence lawyer to represent her in court. During ‘cross-examination’, Sarah’s lawyer will ask Alice questions about the bits of Alice’s evidence that Sarah disagrees with, and any bits of Alice’s evidence that may be weak, unsupported by other evidence, or where Alice could be lying. This questioning will likely feel more unpleasant, as Sarah’s lawyer will likely be trying to make it look like Alice’s evidence is not credible. Many autistic people struggle with the concept of people lying and it is very distressing to have it suggested that they might be lying. It is important to remember that the lawyer questioning does not personally dislike the person they are questioning and does not take a view on whether they think they are lying. It is also important to remember that questioning also helps to find out whether someone may have made a mistake in what they have remembered, or whether they don’t have the specific information needed about an important part of an event, even if they might have other, general information about it

This can be a particularly difficult and distressing experience for an autistic person and can pose a number of challenges. For many people, they will have an image in their minds from TV and films of the aggressive advocate, causing the witness to make all sorts of statements that they didn’t want to. It is important to know that this is not an accurate representation where a witness is vulnerable.

The guidance for judges on this point is also backed up by guidance for lawyers and in the procedure rules that all cases have to abide by. The following points are all taken directly from the guidance for judges:

There is strong support from the higher courts for detailed constraints on the length, tone and wording of cross-examination where required. Appropriate explanations should be given to the jury.
Judges and magistrates also need to consider how to communicate clearly with and reduce the anxiety of the vulnerable witness.
Judges and magistrates have a duty to control questioning.
If there is a problem with questioning, the ‘case law’ (past court decisions) encourages judges to intervene if needed, even if a lawyer or any other intermediary does not.
Witnesses must be able to understand the questions and enabled to give answers they believe to be correct.
The manner, tenor, tone, language and duration of questioning should be appropriate to the witness’s developmental age and communication abilities.
Judges are fully entitled to impose reasonable time limits on cross-examination.
The judge may direct that some matters be dealt with briefly in just a few questions.
Duration of cross-examination must not exceed what the vulnerable witness can reasonably cope with, taking account of his or her age/ intellectual development, with a total of two hours as the norm and half a court day at the outside. The witness’s needs may require questioning to take place over more than one day.
A defendant with Autism Spectrum Disorder can be allowed to have quiet, calming objects in the dock to help them to pay attention. Previously it has been acceptable to let a witness with Autism Spectrum Disorder give evidence wearing a lion’s tail, which was his ‘comfort object’ in daily life.
It has been allowed for a Registered Intermediary to relay the answers of a witness with Autism Spectrum Disorder and behavioural problems, who gave evidence with her back to the live link camera; and in other cases, to relay the replies of witnesses who would only whisper their answers.
It can be requested that all witnesses be asked ‘very simply phrased questions’ and ‘to express their answers in short sentences’, to make it easier for a defendant (who has complex needs but no intermediary) to follow proceedings.

There is extra guidance for lawyers who are involved in questioning and cross-examining autistic and other vulnerable people, from the Inns of Court College of Advocacy – National Training Programme, and toolkits and resources provided by the Advocate’s Gateway.

Support and Adjustments Specific to Autistic People

The guidance for judges has a disability glossary at the end, where over 40 different impairments and conditions are listed with specific details and recommended potential adjustments. As stated in the guidance, examples of reasonable adjustments are particularly helpful for autistic people. This is because autistic people often struggle with imagining what kind of adjustments they may need, as well as many of us not always interpreting our autism as a ‘typical’ disability. This means that asking an autistic person whether they need any adjustments will often not generate a response, or they may simply say no. This is not the only guidance on adjustments for autistic people in courts and tribunals, and the adjustments suggested should not be taken as the only ones possible.

The full entry for Autism Spectrum Condition in the glossary is copied below and can be found in the Equal Treatment Bench Book at section B-10 of the Appendix:

Autism Spectrum Condition

Note that this is an introductory overview for the purpose of considering reasonable adjustments, and should not be relied on as a medical analysis. See ‘Introduction’ within this Glossary.

What is autism?

Autism, including Asperger syndrome is a lifelong developmental disability affecting how people communicate with others and sense the world around them. It is estimated that 1.1% of people in the UK are on the autistic spectrum.

Autism is a spectrum condition and although autistic people will share certain characteristics, everyone will be different. To have a diagnosis of autism a person will have difficulties with social communication and integration, and will demonstrate restricted, repetitive patterns of behaviour, interests, or activities.

Many autistic people will have difficulties with the following areas, although this is not a definitive list:

Literal interpretation of language.
Unclear, vague and ambiguous instructions.
Unwritten rules.
Unexpected and sudden change.
Hypothetical thinking – specifically the ability to accurately interpret and make a decision based on something that has not yet happened.
Hypersensitivity to lights, noise, temperature and/or touch.

Many autistic people are methodical and logical and demonstrate strengths in the areas of problem-solving, attention to detail, and creative thinking. Despite this, according to the National Autistic Society, only 16% of autistic people are in full-time employment and 43% have said they have left or lost a job because of their condition.

Historically, concepts such as ‘high-functioning’ and ‘low functioning’ autism have been used. However, thinking in these terms can be unhelpful as an autistic person who is ‘high functioning’ may still have high support needs in different situations, specifically unfamiliar high stress situations such as tribunals.

Many people have never had their autism diagnosed. This is partly due to the levels of autism awareness and understanding in society and amongst health professionals. Many people will not have been diagnosed as a child over 15 years ago.

Diagnosis

It is not uncommon for people to be diagnosed with autism later in life following events such as redundancy or pending retirement, when the stresses trigger anxiety and demonstrably autistic behaviour. It is extremely common for women to be misdiagnosed or not diagnosed at all. This is most likely due to the fact that women are better able to mask or ‘hide’ their autism and will often mimic others.

In addition, people may have been brought up in other countries where tests for autism are less advanced or where there is a great deal of stigma attached to autism, so that it is rarely admitted.

Difficulties with the legal process

Autistic parties and witnesses, depending on the nature of their autism, may have these difficulties in court:

Sensory overload, eg due to lights (which can appear excessively strong or strobing), noise (a quiet fan can sound like an aeroplane flying overhead), temperature (can feel heat or cold more intensely than others).
Difficulty answering hypothetical questions. This includes difficulty with a question such as ‘What adjustments would you find helpful?’ An autistic person may be unable to envisage how he or she would feel if certain adjustments were made.
Difficulty with chronology and time-scales.
Expectations (settlement vs admission of discrimination)
Settlement discussion and mediation is difficult. An autistic person will find it difficult to imagine how much he or she would like to settle for because it is too hypothetical to be answered.
Any lack of continuity, eg with legal representation / judge / environment.
Unwritten rules: when is it appropriate to speak, what language should be used when addressing the judge.

Anxiety will most likely be the overriding difficulty an autistic person will face in court.

This will affect a person’s ability to use communication strategies. As a result:

The person’s body language and non-verbal communication may come across as aggressive.
Their voice may become louder and they may shout.
They may use stimming to self-regulate anxiety. (‘Stimming’ is fidgeting, flapping, scratching, picking, humming, coughing – these are coping mechanisms.)
They may be visibly distressed and start crying.

Difficulties with the court process have been identified with the assistance of the National Autistic Society’s training team.

Reasonable adjustments

The following steps may be helpful but every autistic person is different. Always ask the individual.

Prior to the hearing

Give very explicit instructions on all case management directions, including precise details regarding who documents should be sent to and when.
Try to keep the same judge in all preliminary hearings.
Explain in advance what the hearing procedure will be like. Send a written timetable.
• Explain the person can visit the hearing venue in advance to have a look around and/or send a photograph. Describe arrangements on arriving at the venue for checking in with reception, finding the waiting room, being called to the court room etc.
To avoid anxiety looking for a private waiting/conference room on the day, reserve one in advance for use by the autistic person rather than the general waiting room. Tell the individual that this will be arranged.
• Ask other side to prepare a simple chronology, ideally with certain dates (possibly accompanied by photographs) which are personal to the individual as reference points.

During the hearing

Explain at the outset in detail the hearing procedure including length and timing of breaks.
Give regular breaks, eg 10 minutes after every 40 minutes in court to prevent anxiety escalating and other symptoms developing as a result.
Seating: ask where the person would like to sit. Often they will prefer to sit near a door, (so there is an ‘escape route’).
Prevent people going in and out the room or moving behind the individual.
Switch off lights, fans and heaters with any humming sound, however quiet. If lights cannot be switched off, allow the person to wear sunglasses or a hat. Use window blinds.

In relation to communication:

Prior to the hearing, get the other party to prepare and send to the person a clear and uncontroversial chronology.
Give precise instructions, setting out apparently obvious follow-up steps (e.g. ‘Write out your statement, then photocopy it and send a copy to the respondents’ solicitor, ie (name and address) by first class post’).
Give reasons for any order or rule.
Establish rules at the outset. If e.g. the person interjects at an inappropriate time, either stop this the first time it happens and explain why, or allow it to continue throughout. Inconsistency is confusing.
Avoid figurative communication, eg ‘take a seat’. Better is ‘sit down please’.
Do not rely on intonation, gesture, facial expression or context to convey meaning.
Avoid hypothetical questions, both regarding the substance of the person’s evidence and regarding court procedure.
Avoid legal or management jargon.
Allow individual to write witness statement / give evidence out of chronological order; help with dates by showing a pre-prepared chronology.
Tell the individual he or she need not make direct eye contact. ‘I don’t expect eye contact. Look wherever you need to look to make you feel comfortable and concentrate.’
Many people with autism have had a lifetime of difficulties interacting with others which can negatively impact on their self-worth and self-esteem. Be patient, consistent and wherever possible positive.

Watch out for signs of heightened anxiety, e.g:

The individual starts to speak louder and more formally, and dropping their contractions (eg saying ‘did not’ instead of ‘didn’t’).
The person might start swearing.
The person starts ‘stimming’.

Consider intermediaries

Criminal and family courts, and certain other courts, can seek the assistance of an ‘intermediary’ where there is communication difficulty. For more detail, see the section on ‘Criminal court procedure – statutory measures’ in chapter 4 (Mental Disability).

Acceptable terminology

Many autistic people would prefer to be referred to as ‘autistic people’ rather than ‘people with autism’. However, individuals should always be asked which they would prefer.

It is better to refer to ‘autistic spectrum condition’ than ‘autistic spectrum disorder’, which might carry negative connotations.