27 May, 2016
On the facts of a recent case heard by the Scottish Court of Session (Inner House) a student's Attention Deficit Hyperactivity Disorder (ADHD) did not qualify as a disability for the purposes of the Equality Act 2010 which might otherwise have meant that her exclusion/withdrawal from school was unlawful.
The student, 'M', attempted to argue that her exclusion from school was unlawful on the basis of the fact she suffered from the disorder, rendering her 'disabled' for the purpose of that legislation.
The student attended a boarding school and was caught in 2013 having sexual intercourse with a male pupil. The consequence for her actions was exclusion and the school's Principal advised M's mother that she ought to withdraw her to avoid an expulsion on her record. M's mother appealed, stating that her daughter was disabled for the purposes of the Equality Act 2010 due to her ADHD and the adverse effect this had on her decision-making ability. As such, she argued that she had been discriminated against in the decision to remove her as a result of her actions.
The Scottish Court of session (Inner House) disagreed, upholding the views of the Additional Support Needs Tribunal for Scotland. They firstly held that M was not disabled under Equality legislation as her alleged 'mental impairment' in decision-making did not have a substantial and long term adverse effect on her ability to carry out day to day activities. This view was appropriately taken following the evidence of M's teachers.
Moreover, there did not appear to be a causal link between the ADHD and the sexual activity which resulted in her expulsion as there was an element of planning involved, as opposed to it being impulsive behaviour as a result of the ADHD. In addition, there was further evidence that M had had sexual relationships previously, which were not attributable to the disorder.
The case therefore highlights the importance of being able to demonstrate a causal link between an individual's disability and their acts in question in order to bring a successful discrimination claim. In this case, M could not be said to have committed the sexual acts as a result of her ADHD and so her claim failed. That is not to say, however, that ADHD will not be found to be a disability on different facts where a long term and adverse impact on the individual and sufficient causal link with the acts in question, can be shown.
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