H & Anor, R (on the application of) v Special Educational Needs Tribunals & Anor

MR JUSTICE LEVESON: The appellants are the parents of MH who was born on 29th May 1988 and is now nearly 16 years of age. In 1999, at the age of 11, he was placed at Rushmoor School in Bedford, an independent secondary school.

On 21st July 2000 a statement was made of his special educational needs. Unfortunately the parents fell out with the school over its treatment of their son and on 24th April 2003 brought a claim to the Special Educational Needs and Disability Tribunal under Part 4 of the Disability Discrimination Act 1995.

As this application proceeded Rushmoor School applied pursuant to regulation 44 of the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 to strike out the claim on the basis that MH was not a disabled person within the meaning of the Disability Discrimination Act 1995, that most of the alleged discriminatory acts were statute barred and that the claim was frivolous or vexatious.

Having elected to make oral representations in relation to this application a hearing took place on 22nd September 2003 before a Tribunal chaired by its President. Suffice to say the Tribunal struck out the claim on the basis that MH was not disabled within the meaning of the legislation. It is against that decision that the parents now appeal pursuant to section 11 of the Tribunal and Inquiries Act 1992.

I must first deal with the mechanism chosen to determine this issue. Mr Nicholas Bowen, who appeared for the parents before me as he had before the Tribunal, explained that before hearing submissions the President emphasised that the nature of the application, being an application to strike out, was such that they would exercise their discretion under the regulations on the same basis as though it were an application to strike out in ordinary civil litigation, that is they would proceed on the basis of the appellant's version of the facts. That approach is not reflected in the formulation of the Tribunal's decision and I am far from clear as to its true meaning and effect.

On an application to the court the relevant part of CPR 3.4 provides that the court may strike out a statement of case if it appears that the statement of case discloses no reasonable grounds for bringing the claim: see CPR 3.4(2)(a). This covers claims obviously ill-founded and claims which do not amount to a legally recognisable claim. I can readily understand such a process if, for example, there was absolutely no evidence of any impairment to the claimant in the papers, or if a complaint made was obviously and clearly out of time. Here the material before the Tribunal was vast. It took the form of statements of evidence, medical reports and detailed correspondence with contradictory allegations and responses passing between the parties. Further, the approach which the Tribunal in fact adopted was not to deal with the case by asking whether it was obviously ill-founded. Rather, it analysed all the evidence to reach a conclusion of fact as to whether MH was disabled within the meaning of the statute citing selective parts of the evidence and drawing its own conclusions. Thus it seems to me that what transpired was in fact the determination of a preliminary issue on the papers alone without the benefit of witnesses being called to elaborate or to be the subject of cross-examination.

Further, although, as I shall explain, regulation 44 does not appear to admit oral evidence, and although MH's father did speak for a few minutes, the Tribunal specifically comment in their decision at paragraph C of its conclusions that they had no evidence either written or oral which could support a claim that MH was unable to carry out normal day-to-day activities.

The Tribunal recited the application to strike out and summarised in brief form the facts. They referred to the submission made by Mr Piper, then appearing for the school, and his reference to authority to the effect that it was important to make clear the nature of an impairment that was claimed to have an effect on the claimant's ability to carry out normal day-to-day activities. Mr Piper submitted that MH's mental impairment was not the result of a clearly diagnosed illness and that he was able to cope in a mainstream school with some support. The Tribunal also summarised in very brief form Mr Bowen's submissions referring only to his contention that past disabilities within the terms of the Act continue to protect from discrimination even if the disability was no longer present. Mr Bowen went on to submit that MH's difficulties were acknowledged to be"complex" and were neither minor nor trivial.

The Tribunal reached its conclusion expressed as follows:

Mr Bowen appeals primarily on the basis that the Tribunal applied the wrong legal test to the meaning of disability in this legislation, failing to apply the guidance of the Code or the relevant case law. Alternatively he submits that the decision reached by the Tribunal was perverse without adequate reasoning to explain the evidence contrary to that which they preferred.

Finally, he also complains that the procedure was unfair and that the Tribunal purported to limit its consideration to a legal analysis, but then proceeded to consider and analyse the evidence and make findings of fact.

Mr Clive Sheldon, who appeared for the school before me, but did not appear in the Tribunal below, submits that it was perfectly permissible to take the case at its highest and then determine whether that case satisfied the test set out in the legislation as to disability.

Regulation 44 of the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 is in these terms:

Regulation 42 provides that a Tribunal may regulate its own procedure but this power does not appear to visualise the calling of evidence. As I observed earlier in this judgment if the power to strike out was limited to claims manifestly and obviously unfounded that may not matter, but it is difficult to visualise how this power can be used in a case which requires detailed investigation of the facts. Certainly the Tribunal could not, in my judgment, justify using this procedure to determine disputed issues of fact on the papers. Although there may be circumstances in which it is possible for a tribunal considering the papers to determine that, at its very highest, making every assumption in favour of the claimant that ought properly to be made, the claim does not fall within the provisions of the legislation. Suffice to say that in this case I am not at all satisfied that such an approach was justified. Having said that, if it was appropriate legitimately to conclude that at its highest this claim had to fail because MH was not disabled and thus did not fall within the jurisdiction of the tribunal, then I would not intervene, notwithstanding Mr Bowen's concern that the precise mechanism which the Tribunal intended to adopt was not made crystal clear.

Section 1 of the Disability Discrimination Act 1995 states:

Paragraph 1 of schedule 1 defines impairment in these terms:

Paragraph 2 of the schedule under the heading "Long-term effects" provides:

The phrase "normal day-to-day activities" in paragraph 2 is itself defined in paragraph 4 in these terms:

Section 2 of the 1995 Act states:

Section 3 of the 1995 Act provides that:

Relevant guidance is available in two statutory instruments to which I have been referred. The first is entitled "Guidance on matters to be taken into account in determining questions relating to the definition of disability." The definition of a disabled person is repeated as:

In relation to impairment, mental impairment is said (at paragraph 13) to include:

Part II of the guidance deals with the meaning of the word "substantial". I quote three parts of it:

The guidance goes on to deal with normal day-to-day activities including "memory or ability to concentrate, learn or understand." I quote only C6:

The other guidance to which I have been referred is the Code of Practice for Schools; in large part that is to like effect. It has been cited extensively to me by reference to the examples given within the guidance. I, for my part, do not find these examples of particular assistance in the context of this case and the question which I have to determine.

The relevant statute has been the subject of consideration in a number of previous decisions. In Goodwin v The Patent Office [1999] IRLR4 the Employment Appeal Tribunal were concerned with a paranoid schizophrenic whose hallucinations affected his ability to concentrate on his work. The Tribunal had held that the effect on his normal day-to-day activities was not substantial. Giving the judgment of the court Morison J observed that it was necessary to look at four different conditions: the impairment condition, the adverse effect condition, the substantial condition and the long-term condition. I deal only with two of them. As to the adverse effect condition he said at paragraph 34:

As to the substantial condition Morison J observed at paragraph 40:

In Leonard v Southern Derbyshire Chamber of Commence [2001] INLR9 the Employment Appeal Tribunal referred to the guidance provided by Morison J in Goodwin and observed in relation to the issue of substantial impairment (per Nelson J at paragraph 27):

Mr Sheldon submitted that it was by no means clear that the Tribunal had agreed that MH suffered an impairment and therefore an impairment within the meaning of the Act. He submits that the proper way of reading the conclusions to which I have already referred is that they did not find it necessary to determine that question, or indeed the adverse effect issue because they were prepared to conclude that any adverse effects were not substantial. It is difficult, in my judgment, to read the sentence: "In our view the adverse effects of MH's impairment were not substantial" as leaving open either the question of impairment or the question of adverse effects. For the avoidance of doubt, however, in my judgment it is quite clear that their earlier recitation of the fact that Dr Pauline Hey, a consultant community paediatrician, had concluded that Aspergers Syndrome should be regarded as MH's main diagnosis cannot be taken as leaving that issue open. Indeed, looking at the evidence which was before the Tribunal, it is abundantly clear that the medical advisers who had considered MH's condition were generally of the view that he presented a complex series of conditions. It is sufficient to quote from Dr Hey's report:

She subsequently explained in a letter before the Tribunal:

In a subsequent report of 9th July Dr Hay went on:

The only possible conclusion open to the Tribunal was that MH suffered an impairment. Further, I do not consider that the Tribunal expressed a different view; neither do I conclude that the Tribunal took the view that MH did not suffer adverse effects as a consequence. The papers are littered with references to behavioural problems and the medical reports to which I have referred relate the problems of which MH's parents complain, which are also represented in the papers from the school, and then reach the conclusion or diagnoses to which I have referred. The question thus becomes whether the impairment is "substantial" in the sense that this word is given by the authorities to which I have referred. In that regard I find the Tribunal's conclusion difficult to follow. I repeat it:

In my judgment the last part of that sentence falls into the trap to which Nelson J referred in Leonard when he spoke of references to the many things that an applicant can do rather than a need to concentrate on what the applicant cannot do or can only do with difficulty. Similarly, in order to conclude that the impairment was not substantial in the light of the statute, the guidance and the authorities, in my judgment the Tribunal necessarily did have to reach a conclusion that the impairment was indeed minor or trivial, yet the language used specifically does not reach that conclusion at all.

I bear in mind that this application was heard as a strike out. There was no opportunity to investigate with the witnesses the precise relationship between the various difficulties which MH suffered and his impairment. The material before the Tribunal had not been prepared for its purpose but historically had been collected in the case. It is sufficient for this judgment if I indicate that I do not consider that the question of disability, albeit going fundamentally to the jurisdiction of the court, was one that was suitable for summary determination under regulation 44. Whether the Tribunal could or should have determined that issue as the first issue of fact to be followed only if the claimant was successful by a consideration of the allegation of discrimination is not for me to say. The Tribunal must govern its own procedure, but in my judgment there are sufficient flaws in the approach of the Tribunal to justify it being quashed and remitted for further consideration. I am not reaching any conclusion myself as to whether MH's condition falls within the jurisdiction of the Tribunal, that is a matter for the Tribunal.

I cannot leave this case without making a further observation. It is a very real sadness that the issues between these appellants and the school should have come to this stage. MH is now at a different school and therefore there is now no longer any link between the appellants and the school. Having considered the papers I encourage the appellants to reflect long and hard about the desirability of pursuing this matter and encourage both sides to explore some satisfactory mechanism for resolving their dispute without incurring the vast costs that would be involved in further determinations.

MR BOWEN: Thank you, my Lord, for such a careful judgment. Could I simply ask for my costs of the appeal?

MR SHELDON: My Lord, I am instructed to oppose an application for costs on the grounds of, in a sense, taking up your last comments that this is a case where the parties thought they had reached an agreement before the last hearing on the basis of consenting to the entire matter, but unfortunately that did not occur and that is why we are here today. Given that MH has moved from the school some time ago and that any future litigation in respect of this matter cannot remediate the effects of MH's time at the school, and given the way in which the respondents have sought to deal with this matter, we submit it is not appropriate for an order of costs to be awarded in this particular case.

MR JUSTICE LEVESON: Thank you. Well I am going to make an order for costs of this hearing only. The costs, however, that I am referring to do not include any of the costs of preparation of the Tribunal or any of the costs that will continue to be incurred and the warning that I have given will doubtless have to be considered carefully because of the potential implication that it might have should the case go to a full hearing.

MR BOWEN: I am very grateful, my Lord.

MR SHELDON: My Lord, if I can just come back on that. I appreciate you have made an order in respect of that. I would like to have some clarification. This matter was due to come on in February. The parties had prepared for it to come on in February, and then due to the fact that they understood an agreement would be reached that matter did not go ahead and was taken out of the list. To the extent that cost were incurred in advance of that hearing, which in a sense are wasted costs, I would ask for that to be taken off or rather a proportion of costs to be awarded rather than the full costs. Inevitably because of the withdrawal or vacation of that date costs were incurred by both sides that were unnecessary, and I submit it would not be fair for the respondent to have to bear the appellant's costs which were wasted thereby. So if one is making an order for costs I would ask you to make a proportion of the order rather than----

MR JUSTICE LEVESON: Well, yes, if I did it I did it slightly differently. The question is whether the costs of the negotiation in leading to the first hearing should simply fall with the appeal or whether they should be subject to reservation depending on the ultimate outcome of the proceedings.

MR BOWEN: My Lord, it is quite impossible for me to -- first of all, I am taken by surprise by what my learned friend has said on several counts. There was never an agreement in the case.

MR JUSTICE LEVESON: I understand that.

MR BOWEN: In the shortest summary, Mr Hill was always very keen to compromise. The school refused to offer any form of apology and, accordingly, it was not possible to reach an agreement. The reason that the case went off -- my skeleton argument was lodged. At that stage I do not think there was a skeleton in response. That, however, was not the reason why the case went off. The case went off because both sides agreed that it was going to be sensible to try to make some attempt to mediate. Sadly, that did not happen. It is impossible for your Lordship to take a view on why that did not happen.

MR JUSTICE LEVESON: I am sure.

MR BOWEN: There is inherent in that -- it is a tale in itself.

MR JUSTICE LEVESON: I am sure that is so. The question is: let us assume that this claim went on and failed. Then whatever the position might be in relation to today, in respect of which you have been successful and I have made an order, why would it not be relevant at least----

MR BOWEN: There is an easy answer to the question you are about to pose, my Lord. The answer is this: it was the school who decided to make what I would characterise as a wholly unreasonable and wildly over-optimistic application that this boy never had a disability and, ergo, the case should be struck out. The Tribunal did its best. They erred in law and I am not submitting that the Tribunal would not be responsible in some ways for the costs first time around, which I think is actually procedurally impossible under Part 52 as I understand it.

Having made that application, the client having incurred costs first time around and second time around on appeal, it is a situation entirely created by Mr Sheldon's clients. The fact that they might conceivably win the day on justification or some other element of the discrimination argument does not matter. This is a separate discrete point. They have fought the case energetically. They have lost and they should pay.

MR JUSTICE LEVESON: Yes, but any discussion as to compromise, and I am not interested in how it went or how it proceeded, would have been of the whole case not just of this because one simply could not compromise.

MR BOWEN: That is true, yes.

MR SHELDON: One further point is as you have indicated in your judgment you have not determined the issue of disability and that is a matter which is still alive.

MR JUSTICE LEVESON: Right.

MR SHELDON: And, therefore, I would urge you to reserve part of the costs, if not making an award of proportion.

MR BOWEN: My Lord, will you just hear me on that briefly?

MR JUSTICE LEVESON: Yes.

MR BOWEN: Plainly having gone into the material in the detail that you have gone into it your Lordship is now in a very good position to reconsider that aspect of your judgment, express a view and then it is remitted back to the Tribunal in the normal way and the Tribunal will then, with the benefit of that judgment, exercise their discretion accordingly. But it would certainly be open to you, my Lord, having expressed a very clear view on the fact that there is only one possible answer to the fact that there is an impairment, to equally go the -- I say it is not even the further mile, it is hardly a tenth of a mile -- to say that given the correct test is more than the low threshold, the words now escape me, your Lordship could very easily solve real problems subsequently if it is not possible for the parties to see sense and settle this case.

MR JUSTICE LEVESON: I could have done.

MR BOWEN: If I am pushing at a closed door----

MR JUSTICE LEVESON: Well, I could have done. Given that there had been no full investigation with evidence being called, I deliberately chose not to. But I was conscious that it was open to me to do so.

MR BOWEN: I will not pursue it.

MR JUSTICE LEVESON: What I intend to do in relation to the costs, save for the costs of today, is make them in the case. If this claimant succeeds then the costs will include the costs thrown away by the hearing. If he fails then he will bear those costs; equally conversely. I give every impetus to both sides to resolve their disputes.

MR BOWEN: Could you just give me a moment, my Lord?

MR JUSTICE LEVESON: Well, what we are talking about here is not the costs of the appeal, we are merely talking about such costs as are thrown away because the case came out of the list. That is all we are talking about; that is all I am talking about.

MR BOWEN: Well, certainly I am at cross-purposes with your Lordship then because I thought that the costs order you just made deprived me of the fruits of my victory in terms of my costs of today.

MR JUSTICE LEVESON: Absolutely not.

MR BOWEN: Right. I do not know if Mr Sheldon misunderstood as well.

MR JUSTICE LEVESON: What I am doing is saying this: in relation to any cost thrown away because the case came out of the list -- there may not be any, I do not know whether there are or there are not, I am making those in the case, the costs of the appeal are yours.

MR BOWEN: I am just struggling to see -- I am sorry if I am being obtuse here, my Lord, but I am struggling to see how the costs of the adjourned hearing, adjourned because both sides sought to be sensible and settle it, could be anything other than the costs of the appeal. I just do not understand at the moment how those costs----

MR JUSTICE LEVESON: Why am I not in a position to----

MR BOWEN: Because it is not a taxation matter, my Lord.

MR JUSTICE LEVESON: Is it not?

MR BOWEN: Well, no, I do not think so.

MR JUSTICE LEVESON: Why is it not?

MR BOWEN: Because it is about the principle of costs as opposed to the minutiae of figures. Somebody has to take a view on -- you are asking if you make that order for the costs judge or the costs officer to look at the material, to look at the emails which I remember relatively well, the discussions between solicitors, Mr Owen's response or the insurer's response and Mr Hill's response, and then to make a balanced judgment on who was reasonable and who was not reasonable.

MR JUSTICE LEVESON: No, it is not at all. It is not saying that at all. I have said that the amount of costs that were incurred as a consequence of the deferment of the hearing of this case and in the negotiations between the parties for that deferment are in the case, and if the claimant succeeds before the Tribunal he should get those costs. But in relation to the costs of the notice of appeal and the costs of today and the preparation of today he should get his costs in any event.

MR BOWEN: The case, the cause, is over, my Lord. The separate jurisprudentially, as I understand it -- I am sorry to take time over this, but it is potentially important. There is a separate statutory cause of action under section 11.

MR JUSTICE LEVESON: Why can I not----

MR BOWEN: I am a little unsure of the -- this is not entirely straightforward. I think what your Lordship is doing is grabbing hold of the statutory cause in front of the Tribunal and morphing, if that is the right word, the costs of the error of law appeal with the Tribunal appeal.

MR JUSTICE LEVESON: No, it is not the costs of the error of law appeal, it is the costs of the negotiation.

MR BOWEN: Which were within the context of the statutory appeal my Lord, but I can say no more.

MR JUSTICE LEVESON: Were they?

MR BOWEN: Yes, absolutely.

MR JUSTICE LEVESON: They were not to do with the whole of the Tribunal?

MR BOWEN: Forgive me, this is why we have been at cross purposes. The purpose of the negotiation was the legal advice given to Mr Hill throughout this sorry affair, that he had a strong prospect of succeeding to quash this decision. He therefore offered to withdraw his statutory appeal in so far as the school were willing to enter into some form of joint document which was agreeable to both parties. The crunch point came in whether or not the school were prepared to accept any degree of fault, albeit relatively mildly expressed, and they said they were not. So Mr Hill took a risk and said 'all right, fine; if they are not prepared to apologise I will bat on' and it was on that basis that the school were being intransigent on one level. It might be said that Mr Hill was being intransigent, that is what Mr Sheldon would say.

MR JUSTICE LEVESON: I cannot unpick that. What I wanted to do, and if I cannot do it I will not do it, is to try to distinguish between the costs of fighting this statutory appeal, which as you correctly say you have succeeded and which I have awarded you, and any costs involved in the negotiation of the fundamental underlying issues.

MR BOWEN: They were within the context of the statutory appeal. I mean clearly the exercise that the parties were going through was looking at the powers that the Tribunal ultimately had and we have not taken you to that my Lord, but effectively they can order an apology or offer more training. The powers that this Tribunal has if we succeed are limited. They cannot order compensation for instance. So by drawing up an acceptable document Mr Hill was trying to achieve what he might possibly achieve if he won. The school said 'No, we are not going do that', so the appeal proceeded. So separating it out is not, at this stage, possible.

MR JUSTICE LEVESON: Did everybody turn up to a hearing?

MR BOWEN: No, it was taken out of the list about, I would have to check, but about a week before.

MR SHELDON: That is just not correct. The matter was taken out practically the night before the case. I submitted a skeleton -- I thought the case was not happening, that is what I had been told. I had to put in a skeleton argument at the last minute.

MR JUSTICE LEVESON: All right. Mr Sheldon, help me with this: is what I have done or purported to do in your submission legitimate in the sense that the complaint is made that I am placing the responsibility for a separate hearing on to the Tribunal?

MR SHELDON: As a result of your decision there would have to be a separate hearing before the Tribunal.

MR JUSTICE LEVESON: No, that is not what I asked. Am I entitled to place the burden of some small measure of costs, whatever they are, onto the Tribunal? Or am I required, and thinking about it it may be in the light of the way in which this statute operates I am required, to make a final decision now?

MR SHELDON: My Lord, you are not required to make a final decision now.

MR JUSTICE LEVESON: No, I can reserve them, but that would be very foolish. The question is, what I have purported to do was to leave the costs, as it were, as I might if this was an appeal from the county court to the Queens Bench Division in the case that is still being determined in the county court. Now the point that Mr Bowen has made, and he might be right, is that as this is a separate statutory appeal there is no power in the Tribunal to make any order in relation to the costs of this.

MR SHELDON: Well, my Lord, the Tribunal cannot make an order.

MR JUSTICE LEVESON: Yes, they can make an order of costs in relation to the Tribunal.

MR SHELDON: No, they cannot make an order of costs at all.

MR BOWEN: That is not right.

MR SHELDON: Well, they can in very extreme circumstances, frivolous and vexatious and so on. They do not have a normal jurisdiction like the county court jurisdiction. They could not make a decision on costs in respect of 'should we have made a deal in advance of this hearing or not?'.

MR JUSTICE LEVESON: Yes. It is quite clear from what I am told about that and also what I am told about the powers of the Tribunal that it may be quite difficult to decide whether the claimant wins or loses in any event.

MR SHELDON: My Lord, I think it would be clear if the claimant had won or lost, they say the claimant had succeeded on his appeal.

MR JUSTICE LEVESON: No, well.

MR SHELDON: The point I am trying to make in terms of costs, a part of the costs which my learned friend will seek to recover as part of this appeal, included costs which I say were wasted as a part of the adjourned hearing and also, as you have indicated, part of negotiating a resolution of the entire matter, and I am asking for that to be taken out of the costs which you have ordered which I think I will not be able to resist which are preparing the notice of appeal, preparing the skeleton argument and turning up today. The other costs, that I say, we should not have at this stage.

MR JUSTICE LEVESON: Right. Thank you very much. I reverse my previous decision. The claimants can have their entire costs.

MR BOWEN: I am grateful.

MR JUSTICE LEVESON: Thank you, Mr Sheldon. I am sorry, but it seems to me that I was opening a can of worms which was inappropriate.

MR BOWEN: Thank you, my Lord. I am sorry the time estimate was three hours. We have exceeded it slightly.