Neurodiversity: Are we nearly there yet?

The week of 18^th to 24^th March 2024 was Neurodiversity Celebration Week, an annual event seeking to challenge stereotypes and misconceptions surrounding neurological differences.

April is also Autism and Neurodiversity Awareness Month, so it’s a good time to revisit the legal system around this area.

I have had a particular interest in Autism and Neurodivergence for over 10 years, how it personally affects people and their families and how it translates into different working environments, but as a lawyer I also look at how the law assists people with inclusion and diversity and/or how it excludes them.

Autism Spectrum Disorder (ASD) is a neurodevelopmental disorder that can affect language skills, behaviour, socialising, and the ability to learn. The ‘spectrum’, is not linear, and refers to the level of support one needs within each symptom of Autism. There is no treatment or cure. It is not a mental health condition.

Autistic people may find it hard to understand what others are thinking or feeling, become anxious in social situations, find it hard to express how they feel, become anxious if a regular routine changes, and often have other comorbid diagnoses, such as a learning disability, Attention Deficit Hyperactivity Disorder (ADHD), anxiety, or depression.

ADHD is a neurodevelopmental disorder that characterised by symptoms of inattention, hyperactivity, and impulsivity. There is prescribed treatment in the form of medication, however this isn’t always easily accessible.

Legislation

• The Autism Act 2009 https://www.legislation.gov.uk/ukpga/2009/15/contents

This is an Act which aimed to make provision for “meeting the needs of adults with autistic spectrum conditions; and for connected purposes”. The Act imposed an obligation on the Secretary of State to publish an “Autism Strategy” to meet the needs of adults in England with autistic spectrum conditions by improving the provision of relevant services to such adults by local authorities, NHS bodies and NHS foundation trusts. The Act runs only to 6 sections, is vague and non-committal. It does not appear fit for purpose when considering the strides made by various organisations and charities over the last 15 years in raising awareness of neurodiversity.

• The Equality Act 2010 https://www.legislation.gov.uk/ukpga/2010/15/contents

s6 of the Act confirms that Disability is a protected characteristic, and defines such Disability as:

(1)A person (P) has a disability if—

(a)P has a physical or mental impairment, and

(b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

• The Human Rights Act 1988 https://www.legislation.gov.uk/ukpga/1998/42/contents

Article 5 of the Act provides that “Everyone has the right to liberty and security of person.”

Article 6 provides a “Right to a fair trial”.

Article 8 provides that “Everyone has the right to respect for [their] private and family life, [their] home and [their] correspondence.”

Autism and ADHD are disabilities within the meaning of s6 Equality Act 2010 and so are protected characteristics.

When we consider how the law should protect neurodivergent people, as opposed to how it protects neurodivergent people, they can be two very different things.

Case Law

The reported High Court authority in AB v Chief Constable of British Transport Police [2022] EWHC 2749 (KB) in which MSB Solicitors acted for the Claimant demonstrates the law’s shortcomings: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/2022/2749.html&query=(AB.+OR+British+OR+Transport+OR+Police.)

Here, the Claimant, who is autistic, complained about records retained by British Transport Police that contained inaccurate allegations which caused the Claimant psychiatric harm. The Claimant was questioned by police on both occasions but was not charged with any criminal offence, despite this, the inaccurate data was still held on police databases.

It was held that the data in the police records was not accurate, not proportionate, nor up to date and that British Transport Police were in breach of the Claimant’s rights under the Data Protection Act 1998, the Data Protection Act 2018 and under Article 8 of the European Convention of Human Rights. The Claimant sought deletion of his data and damages.

At Trial, HHJ Sephton QC (now KC) found in favour of the Claimant. The Judge ordered that British Transport Police erase the data and ordered them to pay damages for distress, pecuniary losses, as well as aggravated damages.

British Transport Police appealed against the decision.

Sitting in the High Court Media and Communications List, Mr. Justice Johnson dismissed the appeal against the decisions on proportionality and quantum.

Mr. Justice Johnson ruled that it had not been shown that the Trial Judge was wrong to conclude that the retention of the records was a disproportionate interference with AB’s right to respect for private life. He therefore dismissed the appeal against the Judge’s declaration that the retention of the records was unlawful. Mr Justice Johnson also dismissed the appeal against the Judge’s assessment of damages.

Perhaps the takeaway line here is that there had been a disproportionate interference by a public body with the Claimant’s right to respect for private life. British Transport Police did not properly consider the Claimant’s Autism (a Disability) and did not justify their actions.

So what now?

The Government’s strategy, as required by the Autism Act 2009, was published in 2014. It was replaced on 22^nd July 2021 to extend the scope of the strategy to children and young people for the first time, in recognition of the importance of ensuring that they are diagnosed and receive the right support as early as possible and across their lifetime.

https://www.gov.uk/government/publications/national-strategy-for-autistic-children-young-people-and-adults-2021-to-2026/the-national-strategy-for-autistic-children-young-people-and-adults-2021-to-2026#introduction

It states that the “goal must be nothing less than making sure autistic people from all backgrounds, ethnicities, genders, sexualities and ages – in all parts of the country – get the support they need to live full and happy lives”, and that the Covid-19 Pandemic was a setback in the Secretary of State for Health and Social Care’s efforts to achieve that goal.

There are 6 themes as follows:-

1. improving understanding and acceptance of autism within society
2. improving autistic children and young people’s access to education, and supporting positive transitions into adulthood
3. supporting more autistic people into employment
4. tackling health and care inequalities for autistic people
5. building the right support in the community and supporting people in inpatient care
6. improving support within the criminal and youth justice systems

We are almost 3 years into the current strategy and neurodivergent people, and their families, may question what gainful efforts have been made.

In September 2023, The Guardian reported that “The government has quietly signed a contract targeting 20% cuts to the number of new education plans for children with special educational needs and disabilities (Send) to bring down costs” and that Local Authorities across England were grappling “with huge financial deficits on Send budgets caused by a combination of rising demand and longstanding underfunding”.

Part of the government’s response has been the launch of the Delivering Better Value in Send programme (DBV), which supports 55 Local Authorities to bring down their large Send budget deficits through measures such as early intervention and teaching children with special needs in mainstream schools. Perhaps money may be better spent on increasing the number of additional needs schools and/or increasing the funding available to those additional needs schools already in existence.

It was further reported that Gillian Doherty, of campaign group Send Action, stated that “Aside from potential legal implications, this action will simply push the funding problem down on to mainstream schools, which are already in a state of acute financial and recruitment crisis.

This is irresponsible behaviour that will seriously undermine inclusion. It will also result in a two-tier system that severely disadvantages disabled children in local authorities with financial difficulties.”

So, overall, are we nearly there yet?  Not from my point of view but having campaigns like ‘Neurodiversity Celebration Week’ and ‘Autism and Neurodiversity Awareness Month’ really does help raise awareness and allows people, communities and businesses understand how they can take part and be inclusive.

At MSB, to further increase our awareness, we have just launched our ‘Supporting Neurodivergence’ policy, with an aim to be supportive to our team and seek input and suggestions of how we may further widen the support and awareness offered.