“[C] is a very able student who is underperforming in some key literacy skill areas. She has strengths in many skills, but also some definite weaknesses. This pattern of strengths and weaknesses is typically found in dyslexia. The degree to which this affects [C] is mild. [C’s] dyslexia means that she will find it difficult to access fluently and easily at an ability appropriate level. This will affect reading comprehension, especially where complex text is involved or where there are time constraints. It is possible also that she may experience difficulties in foreign language learning; organising and writing complex written assignments to a tight time schedule; understanding and using maths symbols; and difficulty in accurately proofreading her work.”
“[C] requests blue coloured paper with 16 Arial font for her school notes, exams & public exams, extra time in exams if she is entitled, these adjustments be made within school & the appropriate applications to the examination boards within the time frames before31 January 2014 for modified paper & before21 March 2014 for extra time to be made by school. A standard modified paper could be considered. [C] needs working practice of all adjustments within school before her major exams and preferably in her mocks. School to review policies/training re disability.”
“ The recommendations of the Dyslexia Association report and the actions taken: the Panel recommends that, despite there being no objective way of measuring whether [C] benefits from coloured paper when wearing her precision tinted lenses, there is a subjective improvement and the provision of coloured paper and text in a particular font should be used. The Panel also recommends that the issue with the application for extra time in public examinations should be dealt with proactively and immediately. Consideration should be given to submitting the evidence which is currently available and letting JCQ [the Joint Council for Qualifications] inform both the parents and the School if any further request or assessments are required. The quality of the teaching provision: the Panel recommends that there needs to be a better operational management of the actions and communication within the School when a report is submitted to the School which states a newly diagnosed special educational need such as dyslexia. The process of writing and reviewing IEPs also needs improvement. Equality of education: the Panel recommends that the disagreement over the definition of ‘substantial disadvantage’ should be reviewed by both parties. Unfortunately, the only absolute way to settle this would be by testing the definition through legal proceedings which would be upsetting for all concerned and expensive for both sides. The Panel feels this issue needs both sides to consider reaching a middle ground. The provision of coloured paper, text printed in an acceptable font and the provision of 1 to 1 tuition of at least 1 hour a week is achievable. The Panel recommends that both parties consider these courses of action as appropriate. The need to define [C] as having a disability from a legal point of view can then be considered less important and the distressing move to a Tribunal can be avoided.”
“(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 requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. This is stated in the Act at S212(1). This section looks in more detail at what ‘substantial’ means. It should be read in conjunction with Section D which considers what is meant by ‘normal day-to-day activities’.”
“ B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment.”
“9. In relation to [C’s] mild dyslexia there is the November 2011 Dyslexia Association (‘DA’) report. The School accepts that such mild dyslexia is a ‘mental impairment’ for the purposes ofsection 6(1) Equality Act 2010 . However, the School does not accept that [C’s] mild dyslexia has a substantial adverse effect on her ability to carry out normal day-to-day activities including studying and taking exams. 10. ‘Substantial’ in this context means more than a minor or trivial effect, sees 212(1) Equality Act 2010 . The School accepts that dyslexia, depending on its severity , may amount to a disability for the purposes ofs 6(1) Equality Act 2010 but the effect of [C’s] mild dyslexia is not sufficiently severe to meet the definition: the School contends that the effects of [C’s] mild dyslexia are not substantial because they are not limitations that go beyond the normal differences in ability which may exist among people. Indeed, this was accepted by the Claimant who, unlike her parents, gave a clear and unbiased account of her weaknesses and strengths. In her oral evidence to the Tribunal, [C] accepted that her abilities were in line with her contemporaries (see to similar effect, Mr King’s witness statement paragraphs 15 – 22 [D303 – 304] and Mr Griffin’s evidence at paragraphs 22 – 33 [D315 – 316]. As explained in Mr King’s witness statement at paragraphs 4 – 6 [D301 – 3012], the intake at Leicester Grammar School is atypical: it selects on the ground of academic ability and obtains very high GCSE results. 11. In the population at large there will be differences in ability to concentrate, read etc. In order to be substantial, the effect must fall ‘outwith the normal range of effects that one might expect from a cross-section of the population’, see Paterson v Commissioner of Police of the Metropolis[2007] ICR 1522 , para 27 per Elias P. It is clear from the uncontested evidence before the Tribunal that [C’s] abilities are not outwith the normal range. [C’s] mild dyslexia does not have a substantial adverse effect. Indeed, [C’s] evidence was that her failure to perform well in her recent exams was a result of her failure to revise sufficiently rather than any mental impairment.”
“28. The evidence shows that [C’s] performance in class is good; this was acknowledged by [the parents]. This is within the context of a selective high performing school. [The parents] assert she has difficulties in the activity of taking examinations. Assertions they made about the effort that she [has] to make for reading and concentration contrast with the evidence that in class she copes. From [C’s] own evidence we find the use of spectacles has clearly assisted her, should she choose to wear them. 29. [C’s] examination results do not indicate particular difficulties. For instance, we note her recent performance in mock examinations, December 2013 set out in Mr Griffin’s statement (D303) and her grades in summer examinations in June 2013 without extra time. We find that she performs around average. 30. [The parents] referred to consequent effects of [C’s] difficulties including headaches, loss of energy, hunger and exhaustion. At the hearing [C] mentioned that her arm aches when she has to do a lot of writing. We note she is performing well in a very demanding school and from her own evidence that in years 10 and 11 she caught up from years 8 and 9. We do not find reports of [C’s] tiredness and exhaustion atypical in the context of the intensive educational environment [in which] she has been placed. Leicester Grammar is clearly a competitive school where pupils are expected to achieve high standards.”
“31. Mr Sharland’s submissions on behalf of the Responsible Body are comprehensive. We accept those submissions; we cannot find on the plain words of the statutory provision nor decided authority to distinguish between different forms of spectacles. Dictionary definitions of spectacles refer to eye glasses with a method to keep them on the face. It is nowhere stated that lens are limited to those with a refractive effect only. For the reasons above we find any residual effect of visual stress/Meares Irlen to be insignificant in the context either of school work, school examinations or other day to day activities.”
“1. Did the First-tier Tribunal deal adequately with the decision in Paterson v Commissioner of Police of the Metropolis [[2007] ICR 1522 ], to which it referred in paragraph 19 of its decision in the context of the parents’ submissions, but not at all in its own conclusions in paragraphs 24 – 33? 2. Did the First-tier Tribunal misdirect itself as to the proper approach to the meaning of disability in section 6(1) of the [2010 Act]? [Judge West then referred to paragraphs 22 and 29 of the tribunal’s decision and to the responsible body’s submission relying on paragraph 27 of Paterson and continued] However, what paragraph 27 says in full, with reference to the relevant statutory guidance, is that ‘In our judgment A1 [the predecessor of B1 of the 2010 Act Guidance] is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. As A2 and A3 make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.”
“In so far as Mr Paterson was claiming that he had been substantially disadvantaged in day-to-day activities, there was no substantial disadvantage. Any adverse effects of his impairment were minor. There was a substantial disadvantage with respect to carrying out the promotion examination, but that was not a day-to-day activity. Furthermore, although Mr Paterson was disadvantaged when compared to his non-dyslexic colleagues, he was not disadvantaged with reference to the ‘ordinary average norm of the population as a whole’.”
“14. It is clear first from the definition insection 6(1)(b) of the Equality Act 2010 , that what a tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained insection 212(1) of the Act . It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other. 15. Unfortunately, as it seems to us and we think that Mr Cross in his admirable submissions tended to agree, the guidance both in the 2006 and for that matter, the 2011 form, attempts to give assistance to tribunals and others by contrasting those matters which are clearly trivial and insubstantial on the one hand with those which are clearly substantial on the other. That might, although wrongly, be taken to indicate that there is something of a sliding scale between the two, wherein the process of assessment may operate. However, it may only operate to ask whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect upon normal day-to-day activities. As a matter of first principle when considering the statute, this requires the focus of the tribunal to be not upon that which a claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not. 16. We take that to be the approach which a reading of the statute would require. It is the approach as we see it which was adopted, albeit under theDisability Discrimination Act 1995 , in Paterson . There, the headnote [in[2007] IRLR 763 ] rightly reads: ‘The only proper approach to establishing whether the disadvantage was substantial is to compare the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.’ 17. By ‘compare the effect’ we think it means ‘assess the effect’.”