P v Governing Body of A Primary School [2013] UKUT 154 (AAC)

UKUT-AAC

P v Governing Body of A Primary School

[2013] UKUT 154 (AAC) · 2013-03-25

Fiona Scolding of counsel, instructed by the solicitor to the local authority responsible for maintaining the School for the respondents.

DECISION

The appeal is allowed.

For the reasons below, the decision of the First-tier Tribunal is wrong in law. It is set aside. The appeal is referred to the First-tier Tribunal to be heard again. It should be heard with the others issues in the appeal to the First-tier Tribunal that were adjourned while the question of permanent exclusion was considered separately.

It is for a judge of the First-tier Tribunal to determine whether the rehearing should be by the same judge and members as the previous tribunal or by a new tribunal panel, and to make case management directions.

My direction of 20 03 2013 that this case may only be reported or discussed publicly subject to anonymity for all concerned remains in effect unless consent of a judge of the Upper Tribunal is granted to any such publication or disclosure.

REASONS FOR DECISION

1 This appeal concerns the permanent exclusion of a ten year old child, Y, from a primary school I shall call the School from 2 10 2012. The parents, Mr and Mrs P, made a claim against the Governing Body of the School about the permanent exclusion to the First-tier Tribunal Health, Education and Social Care Chamber. They claimed that the exclusion discriminated against Y in a way that was contrary to section 85 of the Equality Act 2010 (the 2010 Act). They asked the Tribunal to direct the reinstatement of Y. The Tribunal held an expedited hearing for this reason. On 20 12 2012 a tribunal heard, and decided, the appeal about the permanent exclusion. It refused the claim and made no order for reinstatement. It postponed consideration of other issues of alleged discrimination. A First-tier Tribunal judge gave the parents permission to appeal. The Upper Tribunal also dealt with the case as a priority.

2 The central question of law before this tribunal is whether the First-tier Tribunal correctly applied the provisions of section 85 of the 2010 Act and the Equality Act 2010 (Disability) Regulations 2010 (the 2010 Regulations) to the permanent exclusion and the context of that exclusion. The focus of the case is on a provision in regulation 4 of the 2010 Regulations. This provides, as is discussed in detail below, that “a tendency to physical … abuse of other persons” is not to be treated as an impairment for the purposes of the 2010 Act.

Background

3 Y was born in 2003 and lives at home with both parents, who are the appellants in this case. The relevant history of Y’s education for the purposes of this decision starts when Y was admitted to the School, which Y then attended until the permanent exclusion that triggered the claim that led to this appeal. Immediately prior to that admission, Y had been receiving home-schooling. The exclusion took place on 2 10 2012. Part of the dispute between the parties in this case is about the reason or reasons for the exclusion and I examine that in detail below. Since that exclusion Y has again been receiving home-schooling. Mr and Mrs P have since then pursued avenues to have Y readmitted to the School and it is the outcome they seek from this appeal.

4 Y was admitted to the School on 16 04 2012 and joined Year 3. At the time of Y’s admission all concerned were aware that Y had problems. The papers show that this was the subject of a minuted meeting between Y’s mother and the special educational needs (SEN) coordinator and a colleague at the School on 8 05 2012. This was to review the home-school transition after the first two weeks. It was proposed at that meeting that Y should start full time at the School the following day, although I am told that Y never attended the School for a full school day. A timetable in the papers shows that Y’s school day was timetabled to end at 1.30, some time before the general school timetable ended.

5 Issues about handling Y unfortunately started escalating swiftly. For example, the papers show a five day internal exclusion of Y from 14 05 2012. And on 22 05 2012 the head teacher and SEN governor jointly wrote to the relevant education authorities alerting them to the problems being confronted by the School and the need for an immediate assessment of Y’s special educational needs. That was the date flagged up on 8 05 2012 as the date for the next meeting with Y’s mother for reviewing Y’s progress. The letter suggests a review had taken place and that the parents had been asked to obtain a professional specialist diagnosis of Y’s problems. There was apparently none available at that time.

6 A full diagnostic report about Y was given jointly by a consultant developmental paediatrician and a consultant clinical psychologist on 6 07 2012. It contains a full history, the results of detailed clinical observations, and a lengthy series of recommendations. The conclusion is that Y “fits within the group of children described as having Asperger Syndrome (ASD). In addition, it is likely that Y meets the criteria for a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).” The papers show that a diagnosis of ASD and ADHD was known by the school following the diagnosis in the report, apparently made on 25 06 2012. There was an outreach request form to the relevant education authority made on 3 7 2012. This shows that the School had put in place 1:1 support by a teaching assistant for Y and was asking for a new appointment from the end of that month. The 1:1 support (and the teaching assistant providing it) is referred to throughout the papers and the decision of the tribunal below as INA (individual needs assistant) and I use that abbreviation in this decision.

7 The week after that report was received at the School, the head teacher wrote formally to the relevant education authority enclosing a request for consideration of statutory assessment of Y. There was a complication in this in that Mr and Mrs P and Y live in the area of one education authority but the school being attended by Y is in the area of another education authority. The application went to the education authority where Y is resident. The papers show that the relevant authority’s county panel accepted the need for a statement in August 2012 and a decision was taken by that panel in November 2012 to issue a statement after outstanding reports were put in place. I understand that the assessment has yet to be completed as it has been put in abeyance while this appeal is proceeding. It is not for me to consider that further here. If the parties, in due course, do not agree the statement then there are separate appeal rights to the First-tier Tribunal.

8 That does not, however, alter the fact that a formal expert diagnosis of Y’s problems was in place at the time the permanent exclusion took effect. It is common ground between the parties that that diagnosis shows that Y has impairments, and that those impairments or some of them have a substantial and long-term adverse effect on Y’s ability to carry out normal day-to-day activities. They therefore amount to a disability under section 6 of the 2010 Act.

9 Of direct relevance to this appeal is the part of that application that states the educational advice given to the applicants by the education authority about Y. Under the heading of “behaviour” this identifies significant problems in handling Y, not least in displays of aggressive behaviour towards both children and adults and in the unpredictability and erratic nature of the behaviour. The application then sets out the statements of special educational needs for Y. This reflects the strengths and difficulties of those with autistic spectrum disorder – Asperger’s Syndrome and ADHD and sensory processing difficulties so reflecting the diagnosis given a few days before.

The incident on 2 10 2012 and resulting exclusion

10 A contemporary note from the head teacher on 2 10 2012 describes the events that triggered (in a temporal sense) the exclusion of Y from the School. At 8.30 the head teacher met with INA, who had been kicked by Y the previous day. The head teacher informed INA of the decision, already discussed with others, to exclude Y permanently “for cumulative reasons (on-going and unsafe behaviour)”. 45 minutes later the head teacher heard loud banging and crashing. This was being caused by Y. The head teacher escorted Y from the room to another room. The parents were asked to collect Y from the School and the School’s SEN governor was asked to attend. INA had been kicked by Y several times resulting in a swollen leg and broken skin and causing INA to be very distressed. Mr P attended the School to collect Y some minutes later. The head teacher informed Mr P that Y would be excluded permanently from the School, to be told in reply that the parents were thinking of removing Y in any event. The SEN governor took INA to the minor injuries unit of the local hospital for treatment. I have taken that note from the evidence before the tribunal. It accepted the evidence as noted in paragraph [17] of its decision.

11 The head teacher wrote to Mr and Mrs P later that day formally notifying them of the decision permanently to exclude Y. As Mr Wolfe put the terms of the formal decision in issue, I quote it from that letter:

“Y has been excluded because in spite of implementing all the strategies recommended by [the education authority’s relevant experts] and [a specialist NHS hospital]:

Y continues to deliberately and aggressively kick staff

Y threatens other children

Y puts … own safety and that of others at risk by throwing objects and waving sharp objects around in an uncontrolled manner

Y consistently disrupts the education of other children in the school

The school has made all possible reasonable adjustments to include Y and having implemented all the advice from other professionals, Y’s behaviour has deteriorated.

This morning Y attempted to run away from school and I managed to persuade Y not to leave the premises by saying I would need to call the police. In a bout of fury, Y repeatedly kicked the INA and INA has been taken to minor injuries in […] to be checked because INA’s leg is swollen in several places, bruised and the skin has been broken.”

The letter then sets out the procedure to be followed for Y and to review the decision. No issue was taken by Mr Wolfe about the correctness of that procedure and I do not need to detail it.

12 As required by the procedure, the Governing Body’s behaviour and discipline committee met on19 10 2012. The parents were invited to attend but did not. The papers contain both the head teacher’s speaking note to that meeting and the minutes of the meeting. The speaking notes set out a bullet-point list of reasons for Y’s exclusion that was essentially a more robust version of the bullet points set out in the letter to the parents together with another point:

“Y refused to follow instructions for … own safety and the safety of others with defiant and controlling behaviour..

The notes add the comment that this was the first time that the head teacher had needed to take “this exceptional route”.

13 The minutes show that there were other factors in play at this stage. They record the head teacher as informing the committee that:

“we… would have preferred to have used the governors’ powers of removal as outlined in the Education Act 2002 section 29(3) for health and safety (behaviour) reasons – placing Y in alternative provision… However [the relevant education authority for that purpose] would not co-operate with the school … in offering an alternative placement. This left me as head teacher in a position where my only option was to permanently exclude… Our school was not receiving sufficient support from [either of the two relevant education authorities] … The evidence demonstrates that we could not meet Y’s needs.”

14 It was pointed out by an educational official present that the relevant educational authority could not take the action sought by the head teacher without parental consent. That had not been given. Other help had been offered by an educational authority but the parents had declined to be involved in that. The head teacher is recorded as indicating awareness of this. It should be added that the details included in the discrimination claim show that the parents maintain that they were not informed of this nor asked for their permission It is clear from the minutes that there was a genuine discussion of the case by the committee and that the head teacher’s views on the options were challenged and debated. At the end of the meeting, however, the committee confirmed the permanent exclusion on behalf of the Governing Body.

15 The parents were informed of the decision formally the following Monday, 22 10 2012. The papers show that they also had their own note taker at the meeting. The formal letter confirmed that the committee had confirmed the decision of the head teacher to exclude Y permanently, and had done so for the following reasons:

“1. The school has put in place all recommended strategies to include and support Y.

2. There were serious breaches and on-going breaches of the school’s Behaviour Policy which increased in severity.

3. The safety and welfare of pupils and staff in the school community were compromised.”

The letter invited the parents, if they wished, to ask for the decision to be reviewed by an independent review panel operating for the relevant education authority. I am told that the parents did not exercise that right. Instead they filed a claim with the First-tier Tribunal.

16 The school’s behaviour policy, as last reviewed in the summer of 2012, is included in full in the papers. It is, as one might expect, a lengthy document and cannot easily be summarised, although there is a short form of the policy for general circulation described as a code of conduct. The formal document lists a series of bullet points identifying unacceptable behaviour. These include (as relevant in this case):

· Bullying in any form or physical aggression

· Unwanted or inappropriate physical contact

· Loud uncontrolled voices.

The claim

17 The parents filed a disability discrimination claim about the School’s treatment of Y on 9 11 2012. This identified the claim as being focussed on Y’s permanent exclusion and the parents’ wish that Y be reinstated. But in reply to the standard question on the claim form “How did the alleged discrimination take place” the parents set out a fully argued commentary on the school’s handling of Y that extends for over four closely typed pages. It is difficult to summarise this in any useful way, not least because the allegations include the statement that “throughout Y’s time at [the School] Y was treated unfavourably compared to the other children culminating in Y being permanently excluded due to … disability.” The form was accompanied by some 40 pages of enclosures.

The actions of the First-tier Tribunal

18 The First-tier Tribunal received the email including this claim on 9 11 2012 but after the standard final time for service that day. It reacted immediately both issuing a formal notice to the School’s Governing Body including a copy of the claim and issuing a practice direction for case management of the case to all concerned naming the day for hearing and requiring the names of witnesses. These directions and the information accompanying them emphasise that the issue of permanent exclusion was being handled on an accelerated timetable. These included limitations to the numbers of witnesses and fixed dates for the evidence to be filed by those involved. That timetable included a deadline for any request to amend the directions.

19 The papers contain a detailed response by the head teacher to the points raised in the claim form by the parents. They are divided into 42 separate points and each is addressed. Points 10 and 11 deal with the permanent exclusion and other points arising about the events on 2 10 2012 (the day that occurred). The comments include a specific rebuttal of the claim that Y was excluded because of disability. It was “because of repeated, severe behaviour towards children and staff.” The statement to the committee meeting on 19 10 2012, noted above, is repeated but an explanation is added about the involvement of the two education authorities. It makes the point that one of the authorities did not refuse to involve itself at the time but found itself unable to do so. The comments include a series of rebuttals to the claims made by the parents about events on that date. The response is accompanied by at least 46 appendices, some of which have multiple parts. I say “at least” because it is difficult to identify which document is included in which appendix from the papers in front of me as they appear to have been delivered out of order because of problems transmitting them electronically and most do not have appendix identifications on them. The documents in total extend from document 699 to document 1471 in the papers before the First-tier Tribunal.

20 Not surprisingly, these lengthy responses drew requests from the parties for extended time to respond. A First-tier Tribunal judge refused them. Extra time was also asked to produce witness statements. That was refused. Application was also made to include the documents relating to the statutory assessment of Y in the papers. That was also refused. However the tribunal took note of the amount of paperwork that had been produced even with these exclusions and on 14 12 2012 directed the production of a chronology by the appellants. At the same time a tribunal judge also directed as follows:

“The parties should note by way of clarification that the hearing is presently listed to consider issues relating to exclusion and reinstatement, hence the rapidity of the listing. Other substantive matters are not likely to be concluded at this hearing if the evidence of them is substantial, and will be dealt with on another day.”

21 The School’s Governing Body responded to this on 17 12 2012 (a Monday). It did so with a covering note emphasising that it had produced this without having seen a paginated tribunal bundle and without having had time to see submissions from the appellants that only arrived at the school on 14 12 2012. I draw attention to this document because as far as I can see it is only in this document that the School’s Governing Body respond to the claims made against it. The other, extremely lengthy, document was presented to the tribunal as the head teacher’s response with a note that “the main response will follow shortly” (see email to the tribunal of 6 12 2012).

22 The response is accompanied by a useful case summary. This suggests the issues to be considered by the tribunal as a series of questions. The second is

“(2) Was there direct discrimination? RB – no Y was excluded for … behaviour, not …condition.”

The accompanying full response deals with the exclusion by the Governing Body at paragraph [60]. This repeats exactly the three points noted above at paragraph 15 above.

23 I have set out the processes between the claim being made and the hearing for two reasons. The first is that it is clearly essential to establish why Y was excluded.

24 The second is that the decision was taken to divide the tribunal’s consideration of the case to accelerate only the permanent exclusion issue. Mr Wolfe drew attention to this because, he submitted, the tribunal had not dealt with the case properly in dividing its consideration of the appeal as it did. I treat that as one of the grounds for this appeal, and take it as the basis for the following decision recorded by the tribunal on 21 12 2012, at the beginning of the full decision with reasons issued that day:

“In addition to the permanent exclusion claim, your claim raises the following breaches of section 85 Equality Act: a failure to make reasonably adjustments during [Y’s] period of attendance at the […] school, and unfavourable treatment arising under section15 Equality Act.

The Tribunal has not been able to make a decision on the above claims, and issues directions set out below so that they can be decided at a future date.”

The decision concludes with the following:

“21 All allegations of discrimination apart from the permanent exclusion remain to be determined. We issue the following directions, which are agreed by counsel.”

The directions, which are then set out, follow the standard pattern for the tribunal in non-accelerated cases. I am told that this second hearing has been postponed until after the Upper Tribunal has issued its decision.

The tribunal decision

25 The tribunal decision was produced with commendable speed on the day of the hearing. In that context, it is not surprising that it is a relatively short document when compared to the extremely large volume of evidence in the papers before it. In Mr Wolfe’s view it was too short and inadequate. Miss Scolding robustly defended its brevity by reference to the timetable under which it was produced. If I may say so, I am impressed with one aspect of the decision, which is less usual. The decision is addressed directly to the parents and is formed as an explanation to the parents for the decision taken. In that context it deals with the law very briefly. As it states in its decision, it was handed a bundle of authorities at the last minute and refused to admit it.

26 The tribunal’s decision is:

“Your child was permanently excluded by the governing body.

In relation to the reasons for the permanent exclusion, your child is not disabled under section 6 Equality Act 2010.

The exclusion is not in breach of the Equality Act section 85(2)(e).

Reinstatement is refused.”

It then sets out the note on the adjourned issues I have included above.

27 The tribunal reminds itself that it must make findings of fact on the actual reason for Y’s exclusion. It accepts the diagnosis of ADHD and ASD adding that Y has been identified also as having dyspraxia, sensory processing difficulties, social communication problems and that Y can become anxious. It accepts that on this basis Y is disabled. It continues:

“10 However as noted above the Equality Act excludes from the definition of disability a tendency to physical abuse. Case law that this tribunal must follow makes clear that this applies even if such a tendency has arisen out of the impairment (in this case Y’s ASD and ADHD).

11 Our finding is that, although Y would appear to be disabled in other respects, in respect of the reasons Y was excluded Y is not disabled because of the effect of this particular provision.”

The “particular provision” is clearly regulation 4 of the 2010 Regulations although it is not in fact “noted above” in the decision. And the binding authority is clearly the decision of Lloyd Jones J in Governing Body of X Endowed Primary School v SENDIST, Mr and Mrs T and the

National Autistic Society

[2009] EWHC 1842 (Admin)

, to which I refer below as XvT . Both are in the papers.

28 The tribunal discussed the history of Y’s attendance at the School in paragraphs [12] to [19]. Paragraph [16] summarises events on 2 10 2012. Paragraph [17] decides that:

“We have determined that though the RB (responsible body) may well have decided in principle that Y should be excluded before this final incident, we should take into account all facts leading to the actual decision”

At paragraph [18], having summarised some of the evidence, the tribunal finds:

“we are satisfied that the records show a clear tendency to abuse during Y’s history at this school.”

The tribunal then comments briefly on other incidents and closes the decision with the formal directions about the postponed issues.

The submissions of the parties

29 At the opening of the hearing Miss Scolding asked me to admit a witness statement from a director for the Centre for Autism at the National Autistic Society in evidence. This was a general statement of evidence about the problems of children with ASD. It did not include any specific evidence about Y. I indicated that I was minded to accept the evidence on that basis, but also pointed out that judges of this Chamber have much experience in dealing with cases of children with ADHD and ASD not only in connection with education cases but also, for example, because of claims about the needs of children for disability living allowance and other benefits. Mr Wolfe did not object to the admission of the evidence as general evidence and I admitted it on that basis. I have since read it but see no need to refer to it further in this decision.

30 Mr Wolfe, for the appellants, took me to the relevant legislation, and I set out the provisions to which he drew attention below. He submitted that a proper analysis of the relevant provisions of the 2010 Act imposed on the First-tier Tribunal the duty of establishing initially why Y had been excluded permanently, to identify if this was because of something arising in consequence of disability. In his submission the School had excluded Y because of the reasons set out in the head teacher’s report. The tribunal had therefore to decide if all the conduct identified in that report arose out of Y’s accepted disability. It also had to decide whether the breaching by Y of the School behaviour policy put Y at a substantial disadvantage and whether there were reasonable steps that could have been taken to reduce the disadvantage. But it was accepted by the appellants that there was no direct discrimination against Y.

31 He contended that the tribunal had not looked at all these questions. It had adopted what he termed a short cut. It had focussed only on the violent conduct of Y, and concluded from this that Y had a tendency to physical abuse. It then found, based on regulation 4 of the 2010 Regulations, that the tendency to physical abuse was not a disablement. In doing so it considered itself bound by XvT . But it had said nothing about the complaint of a failure to take reasonable steps. On this, he argued that the tribunal had divided the case into two parts in the wrong place. It could not ignore the question of reasonable adjustments entirely when dealing with permanent exclusion in this case because the two were too closely linked. The tribunal should have considered whether reasonable adjustments would have avoided the situation that led to the permanent exclusion arising.

32 Mr Wolfe argued that XvT did not assist the tribunal in the way it contended. In that case the tribunal had found a failure to make reasonable adjustments in failing to take measure for the management of pupils with ADHD generally. That was the focus of the decision in XvT but this tribunal had failed to consider it. Here, that reasoning applied only if it could be said that all the relevant reasons for exclusion amounted to a condition of a tendency to physical abuse. That, h e contended, was not what the evidence showed. And, in any event, the tribunal had failed to ask itself the specific question why Y had been excluded permanently.

33 Turning to the key test in regulation 4, Mr Wolfe argued that the word “abuse” could not be ignored. It was not the same thing as “violence”. The phrase connoted a tendency to deliberate and targeted conduct with the intention of inflicting pain. And even if abuse was present here, it could not, he contended, be disputed that Y’s conduct was also because of the ADHD and ASD. And in any event this analysis did not apply to the conduct that was not “physical abuse”.

34 The tribunal had therefore erred in law and the appeal should be returned to the First-tier Tribunal for rehearing.

35 Miss Scolding robustly supported the decision of the tribunal. As a general point, she supported both the procedure under which the tribunal had determined the case and the decision it had taken about permanent exclusion. The tribunal was faced in this case with the difficulties of reconciling a vast volume of evidence with the need to make an expedited decision. It had produced its decision on the day and could not therefore be expected to enter into the sort of detailed analysis that would deal with all the law and all the evidence. It had implied some aspects of its decision without setting everything out in full and I should note this and accept it.

36 She submitted that the core arguments for the appellants were founded on the assumption that, for the purposes of this decision, Y was disabled. But the tribunal had determined that the predominant or operative cause of the exclusion was the physical violence of Y towards others. This was evidence of a tendency to physical abuse. That being so, the tribunal was entitled to focus on that issue without examining other forms of poor behaviour. The tribunal had rightly found that this was an excluded characteristic under regulation 4. Having done so, it was also right in leaving until later consideration of issues about reasonable adjustments. This hearing was solely about the exclusion.

37 Miss Scolding argued that the tribunal had taken the right approach to XvT . It was bound to follow that decision, as it did. The provisions relevant in that case and here were essentially the same. Lloyd Jones J had given clear guidance about how to interpret the provisions now in regulation 4 and how a tribunal should approach the relevant questions. That was binding on the tribunal and should also be followed by me. The arguments put forward for the appellants to the opposite effect were attempts to attack that decision, and that could not be done either before the tribunal or before me.

38 Miss Scolding buttressed this with arguments based both on dictionary definitions and the principles of interpretation that “physical abuse” and “physical violence” are synonymous terms, and that the definition put forward by Mr Wolfe was wrong. His meaning was, in effect, that of torture or cruel and unusual punishment.

The law

39 This case is the first case involving permanent exclusion to be heard by the Upper Tribunal under the provisions of the 2010 Act and Regulations.

40 It is clearly important to establish under the new law what constitutes conduct that can give rise to a claim of discrimination. As this is the first case at this level on this Act in its educational context, it is expedient to set out the law at some length.

41 The central provision in the 2010 Act relevant to a school is section 85. This provides, so far as relevant to this appeal:

“ 85 Pupils: admission and treatment, etc.

(1) The responsible body of a school to which this section applies must not discriminate against a person—

(a)in the arrangements it makes for deciding who is offered admission as a pupil; (b)as to the terms on which it offers to admit the person as a pupil; (c)by not admitting the person as a pupil.

(2) The responsible body of such a school must not discriminate against a pupil—

(a)in the way it provides education for the pupil; (b)in the way it affords the pupil access to a benefit, facility or service; (c)by not providing education for the pupil; (d)by not affording the pupil access to a benefit, facility or service; (e)by excluding the pupil from the school; (f)by subjecting the pupil to any other detriment.

(3) The responsible body of such a school must not harass—

(a)a pupil; (b)a person who has applied for admission as a pupil.

(4) The responsible body of such a school must not victimise a person—

(a)in the arrangements it makes for deciding who is offered admission as a pupil; (b)as to the terms on which it offers to admit the person as a pupil; (c)by not admitting the person as a pupil.

(5) The responsible body of such a school must not victimise a pupil—

(6) A duty to make reasonable adjustments applies to the responsible body of such a school.

(7) In relation to England and Wales, this section applies to—

(a)a school maintained by a local authority;

…

(9) The responsible body of a school to which this section applies is—

(a)if the school is within subsection (7)(a), the local authority or governing body …

(10) In the application of section 26 for the purposes of subsection (3), none of the following is a relevant protected characteristic—

(a)gender reassignment; (b)religion or belief; (c)sexual orientation.”

As the tribunal recognises, this imposes a duty on the Governing Body of the School as the responsible body under the 2010 Act not to discriminate against a pupil by excluding the pupil from the school.

42 The concept of discrimination is central to the Act, as is the duty on anyone to whom the Act applies not to discriminate. Section 15 deals with issues of discrimination involving disability:

“15 Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence

of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving

a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not

reasonably have been expected to know, that B had the disability.”

As Mr Wolfe pointed out in argument, this is a new provision in the 2010 Act replacing to different effect the equivalent provision under the Disability Discrimination Act 1995. He drew attention to this because it was the 1995 Act that informed the decision of Lloyd Jones J in XvT .

43 For these purposes, section 4 of the 2010 Act lists “disability” as a protected characteristic. Section 6 defines disability:

“6 Disability

(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.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability—

(a) a reference to a person who has a particular protected characteristic is

a reference to a person who has a particular disability;

(b) a reference to persons who share a protected characteristic is a reference

to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has

had a disability as it applies in relation to a person who has the disability;

accordingly (except in that Part and that section)—

(a) a reference (however expressed) to a person who has a disability

includes a reference to a person who has had the disability, and

(b) a reference (however expressed) to a person who does not have a

disability includes a reference to a person who has not had the

disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into

account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect.”

Neither party took me to any relevant guidance about this provision.

44 The 2010 Act provides further for disabled people by imposing a duty to make adjustments on public authorities. This is set out in section 20, with the act of discrimination being defined by section 21:

“20 Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person,

this section, sections 21 and 22 and the applicable Schedule apply; and for those

purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice

of A’s puts a disabled person at a substantial disadvantage in relation to a

relevant matter in comparison with persons who are not disabled, to take such

steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a

disabled person at a substantial disadvantage in relation to a relevant matter in

comparison with persons who are not disabled, to take such steps as it is

reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but

for the provision of an auxiliary aid, be put at a substantial disadvantage in

relation to a relevant matter in comparison with persons who are not disabled,

to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the

steps which it is reasonable for A to have to take include steps for ensuring that

in the circumstances concerned the information is provided in an accessible

format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not

(subject to express provision to the contrary) entitled to require a disabled

person, in relation to whom A is required to comply with the duty, to pay to

any extent A’s costs of complying with the duty.

(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or

third requirement is to be construed in accordance with this section.

(9) In relation to the second requirement, a reference in this section or an

applicable Schedule to avoiding a substantial disadvantage includes a

reference to—

(a) removing the physical feature in question,

(b) altering it, or

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart

from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a) a feature arising from the design or construction of a building,

(b) a feature of an approach to, exit from or access to a building,

other chattels, in or on premises, or

(d) any other physical element or quality.

(11) A reference in this section, section 21 or 22 or an applicable Schedule to an

auxiliary aid includes a reference to an auxiliary service.

…

(13) The applicable Schedule is, in relation to the Part of this Act specified in the

first column of the Table, the Schedule specified in the second column.”

The Table identifies schedule 13 as relevant to education.

“21 Failure to comply with duty

(1) A failure to comply with the first, second or third requirement is a failure to

comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in

relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with

the first, second or third requirement applies only for the purpose of

establishing whether A has contravened this Act by virtue of subsection (2); a

failure to comply is, accordingly, not actionable by virtue of another provision

of this Act or otherwise.”

Section 22 makes provision for regulations.

45 The regulations made under section 22 of the 2010 Act are the Equality Act (Discrimination) Regulations 2010 (SI 2010 No 2128). Regulation 4 of those regulations is directly in question here. Mr Wolfe submitted that this could only be interpreted in context, so I set out the part of those regulations including regulation 4. I have emboldened the key words in regulation 4 that are in issue in this appeal.

“PART 2 Determination of Disability

Addictions

3. —(1) Subject to paragraph (2) below, addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act.

(2) Paragraph (1) above does not apply to addiction which was originally the result of

administration of medically prescribed drugs or other medical treatment.

Other conditions not to be treated as impairments

4. —(1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments :—

(a) a tendency to set fires,

(b) a tendency to steal,

(d) exhibitionism, and

(e) voyeurism.

(2) Subject to paragraph (3) below, for the purposes of the Act the condition known as seasonal allergic rhinitis shall be treated as not amounting to an impairment.

(3) Paragraph (2) above shall not prevent that condition from being taken into account for the purposes of the Act where it aggravates the effect of any other condition.

Tattoos and piercings

5. For the purposes of paragraph 3 of Schedule 1 to the Act, a severe disfigurement is not to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if it consists of—

(a) a tattoo (which has not been removed), or

(b) a piercing of the body for decorative or other non-medical purposes, including any object attached through the piercing for such purposes.

Babies and young children

6. For the purposes of the Act, where a child under six years of age has an impairment which does not have a substantial and long-term adverse effect on the ability of that child to carry out normal day-to-day activities, the impairment is to be taken to have a substantial and long-term adverse effect on the ability of that child to carry out normal day-to-day activities where it would normally have that effect on the ability of a person aged 6 years or over to carry out normal day to day activities.

Persons deemed to have a disability

7. A person is deemed to have a disability, and hence to be a disabled person, for the purposes of the Act where that person is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist.”

46 Those provisions apply to the responsible body of a school by reason of section 85(6) of the Act, set out above. So that duty applied to the Governing Body of the School in connection with Y and Y’s accepted disability.

XvT

47 XvT is a decision of the Administrative Court. It is now well established, without citation of authority, that while the Upper Tribunal is not technically bound to follow a decision of the Administrative Court of the High Court it will normally do so. In this case, as I stated at the hearing, I have no hesitation in following the careful decision of Lloyd Jones in XvT and am grateful to him for the careful analysis of the legislation and case law before him. Equally, the First-tier Tribunal was right to say that it was bound by the decision. As Mr Wolfe submitted, some of the legislation in the 2010 Act and regulations differs from the 1995 Act. But other provisions are in identical or very similar wording to that in that decision. That decision was made in 2009 and was therefore authority when Parliament modified parts of the discrimination law while reendorsing other parts. That in my view adds to the authority of that decision, as does the joinder to that case of the National Autistic Society as a party (represented by Mr Wolfe).

48 Mr Wolfe accepted that I should follow that decision as a matter of comity. But he asked me to note that he wished to reserve his right to argue elsewhere that the decision was wrong on some aspects of interpretation. Having noted that I must also note my own view that where the 1995 Act and the 2010 Act make identical or substantially similar provision, I have no hesitation not only in following the decision but in agreeing with it as to the interpretation of the legislation.

49 The legislation in question in that case differs in part from that in this case and the focus of the case was different. But the underlying factual issues have considerable similarity. As in this case, that case concerned the permanent exclusion of a pupil from a maintained primary school by its governing body. That child had ADHD. Following a series of incidents and internal and external exclusions the child was permanently excluded from the school following an incident when the child physically assaulted a member of staff.

50 The context of the appeal to the Court was different. In that case the parents appealed to the tribunal. The tribunal refused the claim of the parents about the permanent exclusion but found that the school had not fully made reasonable adjustments for the child. The appeal to the High Court was by the governing body, which sought to have the tribunal decision set aside on that point. There was no counter-appeal and the decision about exclusion was therefore not specifically in issue. But it did, in my view, form part of the full reasoning of the Court in allowing the appeal.

51 Whether or not I am strictly bound to do so, I adopt the reasoning of Lloyd Jones J as the basis for this decision on two issues of law. That applies to his discussion about the relevant case law (at paragraphs 22 to 33 of his judgement) about the approach to be taken to the questions that arise in cases such as this and to his views about the then equivalent of what is now regulation 4 of the 2010 Regulations (at paragraphs 35 to 49 of his judg ment). I do so without extensive citation or reargument – not least because this decision and the documentation behind it are already very long. That decision was plainly in the mind of the First-tier Tribunal even if it refused at the last minute to accept a bundle of authorities. It was central to parts of the argument before me.

52 I take from that the need for the tribunal to ensure it asks itself the right questions. To paraphrase for current purposes the judgment of Lloyd Jones J, himself citing other authority, at paragraph [30], “the critical question is one of causation. What was the reason for the less favourable treatment…?” If that analysis shows more than one reason “if the legitimate impairment was a reason and thus an effective cause of the less favourable treatment, then prima facie discrimination is made out notwithstanding that the excluded condition also forms part of the … reason for that treatment.”

53 I agree with Mr Wolfe that the terms “legitimate impairment” and “excluded condition” could have been replaced with more felicitous language, but the point is clear.

54 I also take from that decision the proper interpretation adapted to key terms in what is now regulation 4. Lloyd Jones J had noted (at paragraph 38) the argument that “each of the impairments identified in Regulation 4(1) is capable of existing either as a free standing condition or as a derivate symptom from another disorder”. He accepted the argument that both aspects of the term were within the scope of “impairment” in that regulation, stating at paragraph [41]:

“I consider the word “condition” used in its natural meaning is wide enough to include both categories.”

The term does not limit each of the tendencies to independent, free-standing conditions.

Analysis

55 This appeal clearly confronted the judges of the First-tier Tribunal with considerable difficulties. Y was only at the School for less than two terms, and did not attend full time at any time during that short period. Further, the medical diagnoses on which the claims are founded were only formally made several months into this short period. And until that happened it is perhaps understandable that the process of making a statement of special educational need for Y – to my mind the obvious way forward in the educational context for children with problems such as those of Y – was not taken forward, let alone completed. As a result, issues that might have come before the First-tier Tribunal – and, indeed, might still do so - as issues about the proper content of such a statement still await being finalised. That also involves not only educational provision but also medical and social provision. These were also not before the tribunal in this case, so depriving it of part of the fuller context of the proper provision for Y.

56 At the same time the parents wanted Y reinstated in the School. This brought into play what I may refer to as the commendable approach of the First-tier Tribunal in seeking expedited resolution of the questions relevant to the exclusion. But it has to be said that neither party assisted that expedition before that tribunal. Both the Upper Tribunal and the First-tier Tribunal are given an overriding objective in rule 2 of the Tribunal Rules that apply to each Chamber. That objective is to deal with cases fairly and justly, and in doing so to act proportionately, to avoid formality, to enable the parties to participate fully, to use any special expertise, and to avoid delay. The tribunals are given considerable flexibility in handling procedure to assist achieving that objective.

57 It is to be emphasised that that rule 2(4) imposes a duty on the parties to help the tribunal further that overriding objective and to cooperate with the tribunal generally. In this case the tribunal’s directions for an expedited case for reinstatement were met by both parties with what can only be described as a barrage of evidence and applications. I have made the point above that the detailed statement of claim and its supporting documentation was such as to cause the head teacher to feel the need to put 42 points of rebuttal backed by several hundred pages of evidence on file. It has to be asked whether that was necessary. I hasten to add that I do not include either counsel who appeared before me in this comment. As I stated at the hearing, both dealt with this complicated case with commendable brevity and with a focus that helped me considerably. But I make those remarks because I see no sound basis in a case such as this to suggest otherwise than that the efforts of the tribunal judiciary to keep the appeal under control by insisting on the strict deadlines and refusing the repeated applications are fully consistent with that overriding objective. If the parties do not assist, there is a genuine risk in attempting to handle such voluminous complaints and evidence expeditiously and flexibly that, to use a common phrase, you can’t see the wood for the trees. That, I fear, is what may have happened here.

Why was Y excluded and not reinstated?

58 The starting point in this appeal must be the identification of the reasons why Y was permanently excluded.

59 I understand, though no argument was presented about this at the hearing, that new rules about exclusions of pupils from schools in England came into effect just a few weeks before the events that gave rise to this appeal. The statutory provisions are now those in section 51A of the Education Act 2002 as amended by section 4 of the Education Act 2011. The procedure for the School and any similarly placed school are now to be found in the School Discipline (Pupil Exclusions and Reviews)(England) Regulations 2012 (SI 2012 No 1033) in effect from 1 09 2012. This is again new law since the decision in X v T.

60 The current procedures largely confirm the previous two-stage process involved in excluding a pupil permanently from a school, though aspects and details are changed. The head teacher takes a decision permanently to exclude, giving reasons for it. The matter must then be referred to the governing body within a strict time limit. The governing body must then decide whether to confirm the exclusion or to reinstate the pupil. That decision must be notified in writing again with reasons. There is no suggestion that this procedure was not followed here.

61 However, it is in my view important to note(a) that the duty under the 2000 Act is a duty imposed on the governing body, and

(b) a permanent exclusion cannot take effect unless the governing body confirms it. I did not hear argument on this, but it appears to me clear that the real cause of any enduring disadvantage to a pupil subject to this procedure is a decision not to reinstate. Further, it is only when the governing body has taken such a decision that a claim that the governing body has failed in its duty not to discriminate against a pupil by exclusion can be said to have crystallised. The reason or reasons why a governing body confirms an exclusion are therefore in my view of primary importance as they may endorse or replace the original reasons for exclusion.

62 I have set out above how the Governing Body took that decision on 19 10 2012 and the reasons both recorded in the minutes and notified to the parents. I repeat the final reasons given:

“1. The school has put in place all recommended strategies to include and support Y.

2. There were serious breaches and on-going breaches of the school’s Behaviour Policy which increased in severity.

3. The safety and welfare of pupils and staff in the school community were compromised.”

63 I have discussed above how the head teacher informed the parents of the original decision and then presented the case to the Governing Body. The record shows that the Governing Body did not accept that approach without question. Indeed one of its members put the record straight on one element of the head teacher’s thinking. It then took the decision as noted.

64 It is not entirely clear from its decision how the First-tier Tribunal addressed the decision making process of the School and the express reasons given by the head teacher and Governing Body. The tribunal refers in paragraph [16] of its decision to consultations between the head teacher and others about permanent exclusion the day before the exclusion occurred. It then comments somewhat opaquely in paragraph [17]:

“We have determined that though the RB may well have decided in principle that Y should be excluded before the final incident, we should take into account all the facts leading to the actual decision. This is because there was no permanent exclusion of Y up to the point when the actual decision was taken and communicated, so that the head teacher was entitled to take all events, including those of October 2 nd , into account.”

I can see no evidence that the Governing Body took any decision before that taken on 19 10 2012. Nor is there any discussion of the decision making process by the Governing Body when it did meet. Even if the role of the Governing Body is regarded (in my view wrongly) as secondary, there is still a need to examine the list of reasons given by the head teacher as listed above. What the First-tier Tribunal appears to have done is to have concentrated on the events at the time of the exclusion, not the reasons given for it. And it appears to have brought the actions of the head teacher and of the Governing Body together in a way that does not reflect the full evidence.

65 Although I have taken into account the role of the Governing Body as well as that of the head teacher in a way not argued for the appellants, I nonetheless conclude that Mr Wolfe’s argument is correct. The tribunal has not considered the reasons give by the head teacher for the initial decision for permanent exclusion or the reasons for endorsing it. It has concentrated on aspects of the process taking into account “all facts leading to the actual exclusion”. And while it then concludes that the records show a tendency to physical abuse, it does not make a clear finding on the reasons actually given for the exclusion and refusal to reinstate.

The test to be applied under regulation 4

66 Regulation 4 can only be applied to this claim that there was discrimination in permanently excluding Y after the tribunal has identified why Y was excluded. Mr Wolfe submitted that the only proper finding was that Y was excluded for a series of reasons, and that while regulation 4 might apply to some of them, it did not apply to all of them. The tribunal did not get that far. Its finding was in effect that events amounting to physical abuse by Y had occurred and that this justified the exclusion. That is the wrong approach. I must therefore find the tribunal to have erred in law on this point. It is only after the reasons for exclusion have been determined that it can be considered whether Y was “not disabled under section 6 Equality Act 2010”.

67 The next point of law raised for the appellant is whether the tribunal adopted the correct interpretation of the question whether Y was “disabled under section 6”. Having found that Y “would appear to be disabled in other respects” it found that Y was not disabled because of the exception to the definition of disability of a tendency to physical abuse. This arises if, as Mr Wolfe argued, the reasons why Y was excluded either did not evidence physical abuse, or evidenced that together with other reasons.

68 I have already indicated that although Mr Wolfe may dispute the correctness of the decision I adopt the meaning given to “condition” in XvT . With that wider meaning in mind, the question then is: Is the conduct of Y evidenced in this appeal evidence of a condition of “tendency to physical … abuse of other persons”?

69 Mr Wolfe and Miss Scolding also differed on the proper interpretation of the requirement that abuse be present. In his view “abuse” connotes conduct involving the intention of inflicting pain. In her view “abuse” is conterminous with “violence”. As both these issues will be for the First-tier Tribunal when rehearing this appeal, I set out my understanding of this point also.

70 I consider that the phrase “physical abuse” must be read as a whole (and together, although it is of course not relevant in this case, with the further words “and sexual”). That phraseology distinguishes this from, for example, verbal abuse which is not in my view within the scope of this provision (although it was within the School’s behaviour policy). Beyond that, I agree with Miss Scolding that this is language that is not chosen to import any formal or specific meaning. These phrases are to be applied under the Act to everyone who may be involved in alleged discrimination in any way. They are not specific to children or to education. So they should be interpreted as ordinary words. I resist the temptation to adopt any further definition. I am satisfied here that the events described in the evidence as actions of Y can be found as fact to be, on the evidence before the First-tier Tribunal, physical abuse and that the extent of those actions can properly be described on the evidence as showing a tendency to physical abuse. I therefore consider that the tribunal could on the evidence identify those actions as showing that Y had the condition of the tendency of physical abuse of others regardless of any finding or assumption that the only reason why Y engaged in those activities was the effect on Y of the ADSD and AHD.

Reasonable adjustments

71 The other error of law raised by Mr Wolfe on which I consider I should comment is that of reasonable adjustments. As he rightly contended, the tribunal did not look at this at all. If the tribunal had followed through from the written decision of the Governing Body then it would have to address the contention of that body in its confirmation of the exclusion, that “the school has put in place all recommended strategies to include and support Y”. That is put as one of the reasons for exclusion. If so, that interacts with the decision the tribunal did take and the decision it should take in a number of ways. It might be that the tribunal found that all reasonable adjustments had been made. It might be that it found (as happened in XvT ) that some adjustments were made but that others should have been made. Its focus did not have to open up all the various points made by both parties about discrimination. But the question whether the Governing Body and the School had done enough to meet the required standard of adjustments with a view to avoiding permanent exclusion was made directly relevant to the decision to exclude and not readmit by the terms of the decision of the Governing Body itself.

Conclusion

72 I therefore find that the tribunal did err in law in a material way in that it failed properly to identify the reasons why Y was permanently excluded and not readmitted and that it failed to consider whether the Governing Body was right to take the view that there were reasonable adjustments in place with a view to stopping the exclusion from happening.

73 I am satisfied that the approach taken by the tribunal to the interpretation and application of the exclusion provided in regulation 4 of the 2010 regulations was correct in law. It was the failure adequately to identify the facts to which it should be applied that constituted the error. And, save for one point, I see no reason to criticise the approach taken by the First-tier Tribunal to this appeal under its expedited procedure. Many of its difficulties arose because both parties fell short of the cooperation and restraint they should have shown to assist the tribunal in expediting this case.

74 The one point saved is that in this particular case I agree with Mr Wolfe that the division between the matters considered as part of the expedited appeal and the matters left to be considered in the further appeal was made in the wrong place. That can now be resolved by adopting the suggestion of both counsel as to the outcome of this appeal. With the agreement of both parties, I direct that this appeal be referred to the First-tier Tribunal for rehearing, that rehearing to take place together with the hearing of the matters left outstanding at the previous hearing. It will be for the First-tier Tribunal to decide if this rehearing is to be by the same panel as the previous hearing, or by a new panel. I see no reason in principle why the same panel should not hold the full hearing, but there may be practical reasons why this is not possible or desirable, particularly as expedition is required.

David Williams

Upper Tribunal Judge

25 03 2013