F Primary School v T & Ors

THE DEPUTY JUDGE: This is an appeal under section 11 of the Tribunals and Inquiries Act 1992. That is an appeal "in point of law". The appeal is brought against a decision of the Special Educational Needs and Disability Tribunal ("the Tribunal"). The Tribunal itself has not participated in the appeal.

The appeal is brought by a primary school ("the school"). It is brought against a finding by the Tribunal that the school had treated a pupil, CT, born on 8th April 1996, unlawfully within the meaning of the Disability Discrimination Act 1995, as amended ("the 1995 Act"). The appeal is resisted by the parents of the pupil.

The unlawful disability discrimination found by the Tribunal was by excluding CT from the school on the later two of three occasions on which he was excluded. He was excluded in October 2004, in December 2004 and in March 2005, on each occasion by the Head, upheld by the governors, for, to put it euphemistically, unacceptable behaviour. The school were undoubtedly confronted by a very difficult and challenging situation with which they endeavoured to grapple.

The school now accepts, albeit that it did not accept before the Tribunal, that CT did have a disability within the meaning of section 1 of the 1995 Act. I observe that it is no doubt easier to adjust reasonably to a situation of disability if one has at least recognised that a disability exists as well as special educational needs.

CT has Oppositional Defiant Disorder ("ODD"), he has Attention Deficit Hyperactivity Disorder ("ADHD"), and most importantly he is likely to have some form of Pervasive Developmental Disorder, possibly even Asperger's syndrome. Overall, as was contested but is now accepted, he has a mental impairment for the purposes of the 1995 Act. The outstanding issue is whether the two later exclusions, on 6th December 2004 and at the beginning of March 2005, amounted to discrimination under the 1995 Act on the ground of the now admitted disability.

The Tribunal, having found that those two exclusions did amount to discrimination, made an order with three limbs. First, that the school should arrange an external evaluation and review of its special educational needs policy, and importantly how pupils with disabilities are affected by the school's behaviour policy.

I interpose that neither the school's behaviour policy nor its equal opportunities policy drew any distinction at the material time between children with disabilities and those without, or made any adjustment for children with disabilities. One may add that CT's individual education plan, still in force at the time of the December 2004 exclusion, said under the heading "Teaching Strategies":

The second limb of the Tribunal's order is that the school should arrange external support, monitoring and awareness raising of the needs of pupils on the ADHD/Asperger's syndrome. Thirdly, that the school should apologise to CT. At least the final item has not yet been done.

Section 28B of the 1995 Act deals with the meaning of discrimination against disabled pupils. A school discriminates if, for a reason which relates to the pupil's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply and it cannot show that the treatment in question is justified, which can be so if the reason for the treatment is both material to the circumstances of the particular case and substantial.

Section 28C imposes a duty to make reasonable adjustments. If that duty is not complied with, the treatment of a pupil cannot be justified unless it would have been justified even if that duty had been complied with.

The two exclusions to which I have referred, that is the second and third exclusions, were respectively an exclusion in December 2004 from lunchtime and playtime for 11 days, and in March 2005 a 13-day fixed term exclusion. Applying the proper comparator, they constituted less favourable treatment for a reason related to CT's disability. Therefore, the key and related questions were as to justification and reasonable adjustments. It is to be noted that the December 2004 exclusion related to playtime and lunchtime. The Tribunal's findings of fact include that CT had particular difficulty during unstructured times at school. It is to be noted that the March 2005 exclusion resulted from the operation of the school's tally system, an aspect of its behavioural policy. The Tribunal appear to have found, however, that the tally system was operated flexibly.

The Tribunal ruled that the first exclusion, a three-day fixed term exclusion, was not unlawful. This was because at that stage, prior to a report by Dr Umoh on 19th November 2004, the school could not reasonably have been expected to know that CT was disabled in the way he was. The Tribunal found that the second and third exclusions were unlawful, because the school had not shown that the exclusions were justified.

As regards the second exclusion, the Tribunal ruled that by then, in December 2004, the school should have realised that when CT's behaviour became challenging and confrontational, he should have been handled in a different way. As regards the third exclusion, the Tribunal ruled that the exclusion was unjustified because it took no or insufficient account of CT's difficulties, which were known to the school, and had not learnt the lessons from a helpful training package in November 2004, a point also made in relation to the December 2004 exclusion.

The Tribunal duly acknowledged that CT had not been an easy pupil, and that in many ways the school had acted sympathetically and sensitively towards him. Nonetheless, in the Tribunal's judgment, the school had not adjusted their approach to his problems sufficiently to prevent discrimination. Sufficiency is, of course, a matter of degree and evaluation.

There are five grounds of appeal. The first is that the Tribunal gave no or no adequate reasons for its decision in relation to the two findings of discrimination. The law is clear. It was restated by Wall LJ in W v Leeds City Council and SENDIST [2005] ELR 617, at paragraphs 53 and 54. The decision of a Tribunal is not required to be an elaborate, formalistic product of refined legal draftsmanship. It must contain an outline of the story which has given rise to the complaint, a summary of the Tribunal's basic factual conclusions, and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable an appeal court to see whether any question of law arises. A Tribunal's reasons are not, however, intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. Their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or (as the case may be) win. These reasons should not be subjected to a detailed analysis. That is to misuse the purpose for which the reasons are given.

The Tribunal outlined the story at paragraphs 1 to 15 inclusive of their determination, summarised the submissions by counsel on behalf of the school at paragraph 17 and the parents' submissions at paragraph 18. They then gave their conclusions, with reasons, at paragraphs A to Y inclusive, before proceeding to remedies and order. Paragraphs T, U, V, W and Y are of particular importance.

Mr Friel for the school submits that the reasoning of the Tribunal did not deal with the issues raised by the school, nor with the evidence on which the school relied. In my judgment, however, the Tribunal did do so sufficiently in both respects. I find the reasons to have been adequate.

The second ground of appeal is that the Tribunal applied the wrong test in law when considering reasonable adjustments and justification. This in my judgment is not so. The Tribunal applied the language of the statute. The quarrel is with their conclusions on the facts. Indeed, it is the school not the Tribunal which seeks to put a gloss on the statutory language.

The third ground of appeal is that the Tribunal took undue account of the evidence of a Dr Perera, but that ground has not been pursued and I say no more about it.

The fourth ground of appeal is that the Tribunal applied criteria inappropriate to aggressive behaviour in a mainstream primary school with non-specialist staff. Some but not all of the behaviour was aggressive, and one needs to consider the circumstances of each particular exclusion separately in that respect.

It is suggested on behalf of the school that the Tribunal should have applied the test of adequacy of procedure. In my judgment, there is no warrant for any such test. Rather, the Tribunal was right to make an objective assessment of whether the treatment was less favourable and, looking at matters in the round, whether it was justified in the particular case considering as it did each exclusion separately. There is no basis for contending that as a matter of law the Tribunal set too high a standard. This is a question of degree upon which opinions are well capable of differing. The way Mr Friel put the point in oral argument was that the Tribunal's finding was disproportionate and placed an unsupportable burden on a mainstream school, in circumstances where there was no precise recommendation from the expert professionals as to what further the school should do. However, it was in my judgment for the Tribunal to make its evaluation as to whether matters should have been handled in a different way.

The fifth ground of appeal is that the Tribunal used its own expertise without giving due notice to the parties. This ground is raised in relation to the question whether the training was sufficiently absorbed. The complaint is that this question was never raised by the parents, and was never put to the witnesses from the school and the local education authority.

I cannot accept this submission. There was evidence about the training. There was a dispute whether the school had sufficiently taken into account CT's disability and its relationship to his behavioural difficulties, and handled him in the right way. Whether the training had been sufficiently absorbed is, in my judgment, simply another way of characterising the nature of the dispute. Of course tribunals must not give evidence to themselves which the parties have had no opportunity to challenge. The Tribunal was not, however, in my judgment giving evidence to itself. It was in my judgment performing its function as a specialist tribunal, of evaluating all the evidence before it at the hearing and legitimately using its specialist expertise for that purpose.

I conclude that the Tribunal did not err in point of law. In any event, the appeal may be out of time and given the view I have taken on the substance of the appeal I would not extend time, but I need not definitively resolve whether the appeal is out of time. The Tribunal's order must now be obeyed to the extent to which it has not already been obeyed. The Tribunal is the body to whom decisions of this kind (of the kind involved here, that is) are entrusted by Parliament, subject to the jurisdiction of the courts in relation to points of law when they arise. Finding and evaluating the facts are matters for the Tribunal. It is not for the court to make and give effect to its own evaluation of the facts, or form its own view about whether the Head and the school were right, given the problems for the school and other pupils of CT's bad behaviour, both aggressive and otherwise. The merits are for the Tribunal. A feeling of grievance, however strongly held, about how the Tribunal regarded the merits does not under the legislation give rise to any right of appeal, absent an error of law. An error of law may consist of irrationality in the Wednesbury sense, but that is not alleged here and I do not find there to have been any error of law in any other respect.

I therefore dismiss this statutory appeal.

MR WOLFE: My Lord, I am grateful. If I could ask the court for an order formally dismissing the appeal and for an order that the appellants pay the first defendant's costs to be assessed if not agreed?

THE DEPUTY JUDGE: Yes. What do you say about costs?

MR FRIEL: I accept that.

THE DEPUTY JUDGE: Yes. You are not asking for a summary assessment?

MR WOLFE: My Lord, no.

THE DEPUTY JUDGE: Thank you both very much.