Home >> Explainers >> Courts comment on Autism
Autism is the largest underlying cause for the issuance of an EHCP. In 2020-2021 approximately 550,000 EHCPs were issued with ASD as the primary cause; the next largest category was Speech, Language and Communications issues at 300,000. A recent study of 7 million English children found a 1.76% prevalence of autism. [1]
A discussion on SEND and SEN provision is impossible without some knowledge of ASD.
The government is rolling out mandatory teacher training on autism and this is to be commended. In response to a recent petition the government explained:
The DfE has been funding the Autism Education Trust (AET) since 2011 to deliver autism awareness training to staff in early years settings, schools and colleges. AET actively promote improved autism practice within settings and improved educational access, and provide a range of practical resources to inform practice at both setting and practitioner levels. They promote communities of practice to facilitate mutual support and shared learning. The AET has also developed national standards for autism support and a progression framework for those who work with children who have autism. These are available from their website at www.autismeducationtrust.org.uk.
This is welcome news but the lived experience of ASD parents remains troubling. While the word “autism” and “ASD” may now have entered common currency, the practical implications of having ASD in a school setting for a child have not yet bedded in fully. Far too many teachers continue to punish autistic children for “bad” behaviour – as born out in the disproportional representation of ASD children in school exclusions.
How to remedy the problem?
There is no silver bullet – solutions required multi-layered responses. Here at the SENDay Times our contribution tends towards the legal. This is because firstly, there is a lack of understanding of legal entitlements and obligations and secondly, the law is the ultimate arbiter between two disputing parties – the bottom line if you will.
An analogy is an employment dispute between employer and employee. It is right and proper to try to amicably resolve disputes via discussion and mutual consent but we all know that when the two parties remain at loggerheads it is the law the ultimately steps in a decides in a manner that binds both parties.
Put simply the law can force people to act or prevent people from taking actions in a way informal discussions cannot.
The SENDay Times is fully supportive, indeed participates in, awareness campaigns to raise the level of knowledge in society of SEND, but our contribution to this multi-layered approach is to empower parents and young persons to obtain their rights through the law when they are otherwise refused.
If a local authority (LA) refuses an EHCP then no amount of pleading will remedy the matter – only a legal appeal will work.
So, back to ASD – where a school or LA is unsympathetic towards an autistic child, or seeks to punish an autistic child for exhibiting distressed behaviour (meltdowns) then the following quotes can be deployed to show how such behaviour is an intrinsic part of autism which must be managed, not punished.
High Court on Autism
The following is obiter but useful. The High Court said in D and E (parent with Autism):
“1. Autism, including Asperger syndrome, is a lifelong developmental disability affecting how people communicate with others and sense the world around them. 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.
2. Many autistic people will have difficulties with the following areas, although this is not a definitive list:
(a) Literal interpretation of language;
(b) Unclear, vague and ambiguous instructions;
(c) Unwritten rules;
(d) Unexpected and sudden change;
(e) Hypothetical thinking – specifically the ability to accurately interpret and make a decision based on something that has not yet happened;
(f) Hypersensitivity to lights, noise, temperature and/or touch.
3. Many autistic people are methodical and logical and demonstrate strengths in the areas of problem-solving, attention to detail, and creative thinking. (…)
[5] 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. 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. Further, many people with autism have had a lifetime of difficulties interacting with others which can negatively impact on their self-worth and self-esteem.(…)
[Later the court approvingly quotes an expert]
40. …autistic traits are associated with a triad of social impairments and perceived emotional irregularities or behaviours to specific circumstances that may at times be demonstrated by those autistic traits and there may be occasions when they would be less able to understand the emotional needs of others…”[2]
Autism and aggression
The High Court explains:
Anxiety… 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) or they may be visibly distressed and start crying.[3]
Autism, meltdowns, temper tantrums and aggression
The Upper Tribunal:
Mr. Lever’s evidence (backed-up by academic literature) is that an autism meltdown is not the same as a temper tantrum. It is not ‘bad’ or ‘naughty’ behaviour and should not be considered as such. Rather, such challenging behaviour is increasingly being described as ‘distressed behaviour.’ An autistic child who feels very anxious and stressed – for example, because they are experiencing sensory overload, or are overwhelmed by social demands and interactions – may behave in a way that cannot reasonably be described as a choice. They may not understand the effect of their behaviour and any prospect of punishment is unlikely to have any deterrent effect upon them.[4]
Elsewhere in that case the UT stated:
…some children with disabilities such as autism or attention deficit hyperactivity disorder (“ADHD”) may lash out at others around them in school. In the case of children with autism this may be simply because of difficulties arising from being in the school environment. Challenging behaviour or ‘meltdowns’ may be caused by the child being overwhelmed with frustration arising from an inability to express their wants and needs, a reaction to unexpected changes to fixed daily routines and/or sensory overload. The particular child may have no intention to hurt others and their aggressive behaviour may be intrinsic to their underlying disability.[5]
This post is adapted with permission from Chapter 3 of “SEN & EHCP: Know the law. Use the Law.” The book explains precisely what the law is regarding SEN and EHCP and precisely how to obtain the provisions. Preview it here.
References
[1] Andres Roman-Urrestarazu and others, ‘Association of Race/Ethnicity and Social Disadvantage With Autism Prevalence in 7 Million School Children in England’ (2021) 175 JAMA Pediatrics e210054.
[2] D and E (Parent with Autism) [2020] EWFC B18.
[3] D and E (Parent with Autism) [2020] EWFC B18 at [7].
[5] [2019] AACR 10 at [1].
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