Case No.: CO/1916/2004
Royal Courts of Justice
Strand
London WC2
B e f o r e:
MR JUSTICE LEVESON
A (R on the application of) | Claimant |
-v- | |
Governing Body of Hob Moor Community Primary School | Defendant |
Mr Wolfe (instructed by The Disability Rights Commission) appeared on behalf of the Claimant.
The Defendant did not appear and was not represented.
J U D G M E N T
MR JUSTICE LEVESON:
A is now 6 years of age, having been born on 2nd April 1998. She started full-time education at a primary school in September 2002, but was withdrawn within six months on the grounds that her mother complained that she was disabled and the subject of discrimination because, without justification, the school had either treated her less favourably because of her disability, or failed to take reasonable steps to ensure that she was not placed at a substantial disadvantage in comparison with her non-disabled peers. She applied to the Special Educational Needs and Disability Tribunal ("SENDIST") on the grounds of unlawful discrimination, but on 22nd March 2004 her claim was dismissed on the preliminary ground that she was not disabled within the meaning of the Disability Discrimination Act 1995. It is against that decision that A's mother now appeals, pursuant to section 11 of the Tribunals and Inquiries Act 1992.
Having had the chance to consider the notice of appeal and more importantly the detailed skeleton argument, which served as the grounds of appeal and is dated 17th May, both the school and the Tribunal took the view that they would not oppose this appeal and would consent to the decision being quashed, with the matter being remitted for a further hearing before a freshly constituted Tribunal. This represents the totality of the relief sought by the appeal. They did so on the basis that it was accepted that there was an arguable point of law, but not that the decision was necessarily wrong.
Although the court could give A's mother no more, it was not sufficient for the Disability Rights Commission, who have supported and funded this appeal. They wrote in these terms:
"This does not provide our client with an effective remedy. In particular, she would be required to go through the time and inconvenience of a fresh Tribunal (preparation and hearing) faced with the real possibility that the same legal errors will be repeated; and after a substantial further delay ...
"The position also needs to be put into its wider context. Since the Disability Discrimination Act was extended to apply to schools/education some two years ago, the DRC has supported four appeals against SENDIST decisions on similar points. Each has raised, like this one, legal points of significantly wider importance for the SENDIST's determination of the DDA appeals which it now hears. Indeed, if the points did not raise such wider points, the DRC would not fund the cases -- it does so precisely because of their importance in establishing the legal principles in this field in pursuit of its statutory objectives to work towards the elimination of discrimination against disabled persons ...
"In each case the Tribunal has consented to judgment either on a ground which had no wider implications beyond the case and where the error would be unlikely to be repeated in the remitted appeal (such as a ' reasons' challenge), or -- as here -- on the basis that the legal points in issue were 'arguable' (but no more).
"The effect of that approach by the Tribunal is that the issues which need to be resolved arising from the application of the DDA to education go unresolved by the court. Moreover, even if the Tribunal were itself to get the law right, that would not fill the gap because Tribunal decisions are not published in full and, in any event, are not binding precedents. Accordingly, the members of the Tribunal and, more importantly, schools and other education providers, as well as disabled young people and their parents do not benefit from the resolution of various legal uncertainties."
In response to that letter, both the local authority and the Treasury Solicitor, on behalf of SENDIST, have intimated that they would take no further part in the proceedings. The Treasury Solicitor responded to the concerns of the Disability Rights Commission in these terms:
"The Tribunal considers this approach to be flawed. The claimant has been offered exactly the remedy she is seeking; namely for the matter to be remitted back for a further hearing. Indeed, there is no other option or remedy available. Nothing turns on whether the Tribunal is prepared to concede on the basis that there is an 'arguable' point of law, as the same remedy is being afforded to the claimant in any event.
"Moreover, it does not necessarily follow that the Tribunal is effectively 'reserving the right for the second Tribunal to make the same errors'. This is, with respect, misconceived, as there is absolutely nothing to suggest a subsequent Tribunal would make the same error, as would be the case in any statutory appeal or judicial review where a decision is remitted back for re-consideration.
"The Tribunal is of the view that the most appropriate way forward is for the claimant to make any representations concerning what is the correct statutory test, and indeed any of the wider issues it considers appropriate, to the Tribunal itself, at any subsequent re-hearing. This would ensure that this matter can be re-listed by the Tribunal clerks as soon as possible, and the situation in respect of the claimant's child is clarified without further and unnecessary delay. Otherwise, a re-hearing is possible only after the appeal is heard and the Court gives judgment. To this end, the Tribunal is of the view that proceeding with this appeal cannot be considered in the best interests of the claimant, or the child, despite any desire on the part of the DRC to put the position in a wider context or bring a test case."
There has been placed before me a statement dated as recently as 10th September provided by the legal officer of the Disability Rights Commission. She explains that the DRC has supported appeals, partly to support particular claimants, but also because of the points raised in them, which it regards as being points of wider importance. She refers to each of the four cases in which there was consent to a decision being set aside. She goes on:
The DRC has been made aware of another case in which the Tribunal agreed to its decision being quashed but without accepting its illegality, the matter was heard again by a freshly constituted Tribunal panel which repeated some of the legal errors of the first tribunal and the matter is currently the subject of a second appeal to the High Court. Indeed, in that case, the claim to SENDIST was originally submitted in June 2003 and, following a strike-out hearing, an appeal to the High Court and a further strike-out hearing the matter has still not been properly decided by the Tribunal."
Mr Wolfe seeks to argue this appeal in support of the approach of the Disability Rights Commission and, given that there is no consent order which has been placed before me, I must deal with the appeal on its merits, recognising of course that the defendants do not oppose it and in correspondence have recognised, at least implicitly, its merits. Having said that, it is not part of the task which I am prepared to undertake, with submissions only from one side, to enter into some wide-ranging analysis of the statutory regime in order to provide general guidance which is intended to govern the approach of these Tribunals to all cases in the future. To do so having heard only one side without any representations as to the possibilities that, in acceding to impressive arguments on behalf of the Disability Rights Commission I have set the test lower than required, would not be in the interests of parents or a tribunal. To be fair, Mr Wolfe does not suggest that I should, and abandons any request for guidance of the type suggested in the correspondence to which I have referred. Suffice to say that, if there is a real perception that tribunals up and down the country are wrongly construing the approach to this legislation, such does not appear to be obvious from the number of appeals being brought before the Administrative Court. In relation to all aspects of the jurisdiction of SENDIST, there were but 16 appeals between 1st September 2003 and 31st August 2004. In any event, if there is a problem, it is better resolved in other ways. One possibility would be to raise the general concern with the president of the tribunal who, if it is thought appropriate, could arrange to provide assistance for individual chairmen through the Judicial Studies Board.
With that introduction, I turn to the specific issues of this case. A suffers from a rare condition, benign paroxysmal tonic upgaze of infancy ("BPTUI"), although after examination, for reasons to which I shall refer, it is clear that this condition has not been the cause of what is contended is A's disability. In addition, she has global developmental delay and suffers from incontinence.
The former was the subject of some argument before the Tribunal. A's mother contended that, as a result, she had difficulty understanding other people's behaviour and was very sensitive to criticism and to appearing as different to other children. However that issue might be resolved, it was common ground that the incontinence meant that she continued to wear nappies at school. The medical evidence was that it was likely to be due to overall learning difficulties, or mild global developmental delay. It is said that, as a result, she was bullied and teased by other children. The mother contended that others treated her as a baby. It is unnecessary to say more about the alleged discrimination, for the Tribunal never got as far as having to consider it. Rather, it concluded that she was not disabled.
With that, I turn to the law. Section 1 of the Disability Discrimination Act 1995, as amended, states:
Meaning of disability and disabled person.
"(1). Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
"(2). In this Act 'disabled person' means a person who has a disability."
Subsection 1(3) states:
"(1). The Secretary of State may issue guidance about the matters to be taken into account in determining --
whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or
whether such an impairment has a long-term; effect."
Section 3(3) goes on to provide that:
"A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant."
Further assistance as to the meaning of the term "impairment" can be found in Schedule 1 of the Act, which provides:
"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following--
mobility;
manual dexterity;
physical co-ordination;
continence;
ability to lift, carry or otherwise move everyday objects;
speech, hearing or eyesight;
memory or ability to concentrate, learn or understand; or
perception of the risk of physical danger."
It is now appropriate to mention the guidance provided by the Secretary of State under Section 3, to which I have referred, dealing, first, with the meaning of the term "substantial adverse effect". At A1, the Guidance provides:
"The requirement that an adverse effect be substantial 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 more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A 'substantial' effect is one which is more than ' minor' or 'trivial'."
The Guidance gives examples in relation to this issue. At C17, that guidance deals with impairment and, in particular, with continence in these terms:
"This covers the ability to control urination and/or defecation. Account should be taken of the frequency and extent of the loss of control and the age of the individual.
"Examples.
"It would be reasonable to regard as having a substantial adverse effect: even infrequent loss of control of the bowels; loss of control of the bladder while asleep at least once a month; frequent minor faecal incontinence or frequent minor leakage from the bladder.
"It would not be reasonable to regard as having a substantial adverse effect: infrequent loss of control of the bladder while asleep; infrequent minor leakage from the bladder."
This Guidance has been the subject of some analysis in litigation concerning different fields other than educational needs. The identical Guidance was discussed in an employment case, College of Ripon & York St John v Hobbs [2002] IRLR 185, by Lindsay J in these terms:
"There is no statutory definition of 'impairment' and nothing in the Act or Guidance which requires that the task of ascertaining whether there is a physical impairment involves any rigid distinctions between an ongoing fault, short-coming or defect of or in the body on the one hand, and evidence of the manifestation of the effects thereof on the other. The Act contemplates that impairment can be something that results from an illness as opposed to itself being an illness. It can thus be cause or effect. In the present case, therefore, it was appropriate, and not simplistic for the tribunal to ask itself whether there was evidence before it on which it could hold, directly or by inference, that there was something wrong with the applicant physically, something wrong with her body."
Finally, I ought to add one further provision, bearing in mind A's age. Under the Disability Discrimination (Meaning of Disability) Regulations 1996, paragraph 6 makes clear:
"For the purposes of the Act where a child under six years of age has an impairment which does not have an effect falling within paragraph 4(1) of Schedule 1 to the Act that 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 a substantial and long-term adverse effect on the ability of a person aged 6 years or over to carry out normal day-to-day activities."
Before concluding this short analysis of the statutory background, it is appropriate to refer to another decision dealing with a different field, but covering the same principles, namely Goodwin v The Patent Office [1999] IRLR 4, a decision of Morison J in the Employment Appeal Tribunal. He said at paragraph 34:
"What the Act is concerned with is an impairment on the person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts ... The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do."
I deal with the conditions in turn. In relation to A's condition of benign paroxysmal tonic upgaze of infancy, the Tribunal concluded:
"It clearly is something more than a minor or trivial effect and A may well have the condition in her early years ... However it is not clear that it has an impact on A's normal day-to-day activities."
Mr Wolfe concedes that this approach was correct. The Tribunal was rightly concerned with impact. Unfortunately, however, it does not appear to deal in terms with the consequences or impact of incontinence, although, in relation to developmental delay, it describes A's mother's concern in these terms:
"[A's mother] also asserts that A is disabled because she has a global developmental delay, that being a mental impairment which has a substantially adverse effect on A's ability to carry out her normal day-to-day activities, in particular it causes an incontinence problem."
That analysis of the concern is correct. Mr Wolfe submits that the Tribunal did not, however, grapple with it in those terms. Rather, its approach was set out in this way:
"The first question that we considered was whether not withstanding a diagnosis of mild global developmental delay the difficulty was sufficiently substantial to bring A within the description of a disabled person as set out in the Act. In this context we have looked particularly at the evidence concerning A's level of functioning. The nursery carried out a detailed assessment of A both when she started and this continued during her stay in the nursery. There was also an IEP for her. An important meeting was held at school on 12th February 2003 this included a review of A's progress. Mrs Hornby, the foundation stage co-ordinator described A as having made a lot of progress such as being at the 'Blue' stage of 'Stepping Stones Foundation Stage Assessment Profile'. This placed her on a level with other children in her group. A detailed note on A's progress dated 12th February 2003 set out in some detail the various skills that A had acquired in relation to such matters as literacy, numeracy, etc. These skills did not in our view suggest that A had substantial difficulties and this was also supported by the LEA Educational Psychologist, Mr Mills. We did take into account the report submitted by the Occupational Therapist, Jules Hunter in which she gave examples of what she considered to be A's developmental delay. However we do not consider that they demonstrate severe impairment of intelligence and social functioning. Further that we preferred the evidence of school based staff who had more regular contact with A. Therefore we conclude that in this regard A does not meet the definition of a disabled person set out in Section 1 of the Act."
It is of relevance to underline that nowhere in that analysis is any mention of A's lack of continence, not withstanding the medical evidence that it was likely to have been caused by the developmental delay. Rather, the Tribunal asked itself, as Mr Wolfe summarises:
'Whether not withstanding a diagnosis of mild global developmental delay the difficulty was sufficiently substantial to bring A within the description of a disabled person as set out in the Act.'
Whether A's 'skills, 'suggest that A had substantial difficulties'.
Whether the evidence 'demonstrate[s] severe impairment of intelligence and social functioning'."
Mr Wolfe submits that this approach fell into error. In particular, he argues that there is no statutory requirement for a diagnosis of a disorder which is sufficiently substantial to bring A within the description of a disabled person as set out in the Act. Secondly, there is no test within the Act that there must be substantial difficulties suffered by A and, thirdly, there is no requirement for the impairment to be severe. Rather, what the Tribunal should have considered was whether A's impairment had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The progress which she had made in a broad sense did not mean that A's global developmental delay did not have a substantial adverse effect on her ability to carry out such normal day-to-day activities.
I agree with this analysis. In my judgment, the Tribunal did fall into error and did not apply the test that I have sought to elaborate. In the circumstances, I conclude that the approach of the Tribunal was flawed and its decision is quashed. A freshly constituted Tribunal will have to determine whether A is indeed disabled within the meaning of the Act, applying the tests laid down in the statute.
MR WOLFE: My Lord, I am most grateful. I make no application for costs.
MR JUSTICE LEVESON: Very good. Thank you very much.