N suffers from Attention Deficit Hyperactivity Disorder ("ADHD"), such as to amount to a disability within the meaning of the 1995 Act. This diagnosis was made in 2000 when she was referred to the North East London Mental Health NHS Trust ("the Trust") because she had attention and behavioural difficulties. At the time of the hearing before the Tribunal N, then aged 13 years and 6 months, continued to be supported by the Trust and was under the care of Dr Elhussein, Associate Specialist in

In paragraph 2 of its decision the Tribunal noted that the School:

The Tribunal has power to hear claims concerning discrimination against an individual on the basis of their disability by reason of their exclusion on a fixed tem basis under s.52(l) of the Education Act 2002 by virtue of Sections 23 and following of the 1995 Act.

The 1995 Act, in so far as is material, provides as follows:

For the purposes of section 28A, a responsible body discriminates against a disabled person if—

for a reason which relates to his 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.

For the purposes of section 28A, a responsible body also discriminates against a disabled person if—

it fails, to his detriment, to comply with section 28C; and

it cannot show that its failure to comply is justified.

less favourable treatment of a person, or

failure to comply with section 28C, is justified,

less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.

If, in a case falling within subsection (l) —

the responsible body is under a duty imposed by section 28C in relation to the disabled person, but

it fails withoutjustification to comply with that duty,

has discriminated against a person in a way which is made unlawful under this Chapter, or

is by virtue of section 58 to be treated as having discriminated against a person ("A^t') in such a way,

If the [appropriate tribunal] considers that a claim under subsection (I) is well founded —

it may declare that A has been unlawfully discriminated against; and

if it does so, it may make such order as it considers reasonable in all the circumstances of the case.

The power conferred by subsection (3)(b) —

may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates;

The material conclusions of the Tribunal were as follows:

We were content that N's behaviour was more likely than not to be a part of her ADHD To our knowledge this is a condition that is thought to affect about 1% of the school aged population and is one that is diagnosed when certain symptoms, from a range, are present to a particular degree. It is not a simple condition and it is hardly surprising, still less is it decisive, that Mr [G] and Ms [B] have not come across a child like N. Certainly Dr Elhussein seems to have written to Ms Ali in general terms. In our view that was likely to have been because the condition manifests through symptoms that occur differently in different individuals. We found nothing in the behaviour presented (and it is the behaviour that led to the exclusions that is important) that was beyond that which is part of ADHD In particular aggressiveness and poor discipline are common and in so finding we have placed reliance upon research evidence such as that published by the BUPA Research Team in 2004 and freely available on the internet and elsewhere. Mr Oldham [appearing on behalf of the School] reminded us that the burden of proof here is upon the [first respondent] to prove disability. That is the case, but that she is disabled is not in dispute. Given the nature of the disability; that it is diagnosed as we say above; and that the behaviour is consistent with those symptoms we are content that the behaviour that has given rise to the exclusions agreed was part ofNs ADHD.

We are fortified in this conclusion by the absence of other diagnoses or of any other explanation for the behavioun N was presented to the Mental Health NHS Trust with attention and behaviour difficulties. She was diagnosed with ADHD and nothing else. It was not stated, for instance, that other factors were in play, such as environmental ones or that she had traits ofother conditions.

Mr Oldham invited us to reach the contrary conclusion because N was aware of her difficulties. She knew right from wrong. She had moral awareness. With respect to Mr Oldham that appears to have been an entirely questionbegging position. It assumes that the degree of self-awareness that N can exhibit is a contra-indication for ADHD which he accepts as properly diagnosed and, in any event, it would render useless those strategies that sufferers are introduced to in order to help them to deal with their condition. Further, even granting that N can reflect upon her disruptive behaviour on occasion, it does not follow that she could have done so in respect of the particular behaviours on the specific occasions in issue here.

The Responsible Body were aware throughout the period during which the exclusions in issue took place that N was disabled and concede that she was disabled within the terms of section 1 of and Schedule I to the Act.

The Tribunal ordered as follows:

By no later than the end ofthe school tenn commencing January 2007 apologise in writing to N and her mother for the discrimination we have found proven.

By no later than the end of the term referred to above undertake together with the senior management team of the school either refreshing or reviewing training in respect of their respective duties under the [1995 Act]. In any event this should include specific and distinct training and address the manifestations of ADHD and the varying needs of children diagnosed with it.

By no later than the end of the term referred to above ensure that there is added to N's school file a note recording that [the Tribunal] has found the four fixed term exclusions detailed to have been discriminatory and that, consequently, they should not have been given. For the avoidance of doubt if N's file is no longer in the possession of Clack School the headteacher of her next school should be notified of this decision and sent a copy to be placed on N's file".

The Notice of Appeal contained 14 grounds of appeal, 8 of which were pursued at the hearing. In summary those grounds were as follows: there was no evidence to support the conclusion that the misbehaviour was for a reason related to the ADHD (Ground l); the Tribunal's reliance on evidence not referred to by either party (in particular

It will be convenient to consider Grounds 1-4 together which are all concerned with the issue as to whether the reason for exclusion related to the disability. Ground 6 concerns prima facie justification in relation to the first, 16 day exclusion. Grounds 8 and 10 raise the issue of reasonable adjustments and can be considered together; and finally, Ground I I concerns remedies.

Mr Goudie commended the approach adopted by Mr Recorder Foskett QC in Servite Houses v. Perry (Unreported, I March 2004). A claim for possession of premises was based on the conduct of the tenant. One issue was "whether it can be said the Defendant's behaviour was caused by her disability." (second para 46). The Defendant suffered from epilepsy and took drugs to control it. At para 47 the Learned Judge said:

However, as Mr Giffin QC, appeanng on behalf of SP, submits that is not the correct test. The proper approach is that identified by the Court of Appeal in the London Borough ofLewisham v. Malcolm [2007] EWCA Cive 763.

The 1995 Act makes it unlawful for a person who manages any premises (a "landlord") to discrimmate against a person with a disability who occupies those premises "by evicting [him] or subjecting him to any other detriment"

In my view, adopting the test in Malcolm, the submission that there was no evidence to support the conclusion that N's misbehaviour which led to the exclusions was for a reason related to ADHD fails. The material evidence was as follows:

Dr Elhussein in her letter of 2 March 2006 described

In para 8 of the Grounds on which the claim is opposed it is said that 'The School does not have the medical evidence to support the contention that the extreme degree of abusive, disruptive, defiant and sometimes violent behaviour which [NJ has consistently shown to staff and pupils . is the result of her alleged disability." However, in her oral evidence to the Tribunal Ms Bates, NS key worker, explained that N was 1 of 18 pupils at the School with a diagnosis of ADHD. In para 4 of the Decision the Tribunal record that "she stated that NS behaviour could be more extreme than that of other children with the diagnosis although she also stated that others' behaviour could be as extreme as hers but N's was more extreme more often. She stated that she understood that children with ADHD were different from each other. There was not a single presentation". (The Tribunal did record the evidence of another witness, Mr who said "he had not come across a child who exhibited the behaviour that N exhibited").

Mr [G] and Ms [Bl were specifically asked what behaviour N had exhibited that was outside the range of that described by Dr Elhussein in her letter of 2 March 2006. In response they said that she could be openly defiant and stubbom (see para 4 of the Decision). However, the statement of special educational needs in respect of N produced in July 2006 that was in evidence before the Tribunal specifically refers to the need for "support to develop coping strategies to manage her feelings and responses to certain situations".

As part of the formal assessment of N's special educational needs the London

Further evidence before the Tribunal included the School's Behaviour Support Plan dated July 2005 and the School's Educational Support Plan dated September 2005. The former refers to the fact that "N may often make inappropriate comments without actually realising the consequences of what she is saying. This can create conflict in both social and classroom situations.'t The latter refers to the fact that "she does not always understand instructions explaining how to do work and will therefore misbehave in order to detract from the fact that she doesn't know what to do". The Educational Support Plan notes, "She does not always know how to react in confrontational situations and so can react verbally" and "N can react in a very impulsive manner with no thought as to consequences"; if she becomes disruptive or refuses to do work "someone from SEN" should be sent for.

In the light of the evidence set out above it cannot be said that there was no evidence on which the Tribunal could be satisfied that N's open defiance and stubbornness was ADHD related. Dr Elhussein noted in her report of 2 March 2006 that the behaviour of children not on medication can become "extremely difficult". N's medication was reduced in January 2006 (see letter dated 23 January 2006 from Dr Elhussein).

The Tribunal concluded that "N's behaviour was more likely than not to be a part of her ADHD" (Conclusion A). In my view that is not a conclusion that was unsupported by any evidence before the Tribunal.

Mr Goudie referred to the well-known passage in the speech of Lord Mustill in In Re D, (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 at 603H — 604A that:

Mr Giffin acknowledged that it was unfortunate that the Tribunal did not refer at the hearing to this research evidence. As Peter Gibson L.I. observed in Richardson v. Solihull Metropolitan Borough Council [1998] ELR 319 at 338:

The research evidence has not been produced and accordingly it is still not known what the Tribunal did in fact refer to. However, it appears that the Tribunal only placed reliance upon this evidence for the limited purpose of supporting their finding that aggressiveness and poor discipline were common in ADHD sufferers. Other evidence before the Tribunal supported this finding (see paragraph 15 above).

Mr Goudie submits that the Tribunal's view that NS behaviour must be caused by ADHD in the absence "of any other explanation for the behaviour" (para B) was irrational; altematively the decision ignored the School's case that NS behaviour was very bad for reasons which were not related to ADHD and indeed no medical condition at alL

In my view this criticism is not well founded. The Tribunal noted at para 12 of the

It is said that the Tribunal misunderstood the School's case on the issue ofwhether N knew right from wrong. The School accepted that she suffered from a disability, but that because N knew right from wrong that tended to show that her bad behaviour was not caused by ADHD.

The answer to this point is made by the Tribunal in the last sentence of para C of their conclusions: "Even granting that N can reflect upon her disruptive behaviour on occasion, it does not follow that she could have done so in respect of the particular behaviour on the specific occasions in issue here". As Mr Giffin correctly, in my view, submitted, if a person has a medical condition that makes him act impulsively without thinking about the consequences, the fact that he knows right from wrong may not assist to restrain him.

Mr Giffin accepted that there was evidence before the Tribunal that NS behaviour was giving cause for concern for health and safety. Indeed as the Tribunal noted at para 16 of the Decision Mr Grant, Headteacher of the School, gave evidence that "N's behaviour was extreme, unprecedented and such as to give serious concern for her and others' health and safety". There was other evidence before the Tribunal to this effect. Mr Giffin submits, and I agree, it is difficult to think that the Tribunal when writing in para K of their Decision that the assertions that N was giving cause for concem for health and safety was "not further explained" that the Tribunal had overlooked what

In any event the matters dealt with in paragraph K are only material to the conclusion that the first 16 day exclusion was not even prima facie justified. Even if that conclusion was wrong it would not by itself affect the decision of the Tribunal that all the exclusions were unjustified by reason of the failure of the School to make reasonable adjustments, The Tribunal also based paragraph K upon their conclusion that they were not satisfied about the reasons for the length of the exclusion.

Mr Goudie argued that the criticism that the School had made "no attempt to contact Dr Elhussein, or any outside agent (such as an educational psychologist) for guidance" (para M) was perverse. It was said that the School was in contact with Dr Elhussein; it received his reports and could raise matters with her. Further the School's Behaviour Support Plan dated July 2005 stated that another agency, Havering ADHD Support Group, was involved.

A further criticism of the Decision was that para M which sets out in the Tribunal's view what the responsible body ought to have done, concludes with the sentence, "They amount to reasonable adjustments [that] could have been made". The Tribunal does not make a finding that what was done does not amount to reasonable adjustments.

In my view these criticisms are misplaced. The Tribunal accepted that the School had adopted some strategies. However, the Tribunal considered 'tit to be more likely than not that such strategies that had been tried had been tried in no more than a piecemeal way without analysis and there was certainly no clear analysis of N's good behaviour in order to learn from it". This was the inference that the Tribunal drew from the evidence that is set out at paras 17-18 of the Decision. In my view on the basis of that evidence the Tribunal was entitled, with their specialist knowledge, to reach the conclusion that "such strategies that had been tried had been tried in no more than a piecemeal way".

Further whilst there had been some contact between the School and Dr Elhussein and an outside agent, the School had made no attempt to contact Dr Elhussein or any outside agent (such as an educational psychologist) "for guidance". Again the Tribunal was entitled to make this finding on the evidence.

The key point made by the Tribunal in para M is that the School had not "formulated a plan which systematically utilised the various strategies devised for [NJ". I accept Mr Giffin's submission that such a plan needed to be infonned by an analysis of the causes ofN's good behaviour with a view to learning from it; and that expert advice from independent professionals was needed to assist with the exercise.

On behalf of the School it was argued that the Tribunal's reasoning that N should not have been excluded repeatedly for similar behaviour was perverse. At para N the Tribunal concluded that to exclude her repeatedly for similar behaviour would only serve "to exacerbate her difficulties".

In support of this submission Mr Goudie referred to Governing Body of Olchfa Comprehensive School v IE and EE [2006] ELR 503 where the Tribunal decided that the child's exclusion was "justified in terms of the order and discipline within the school, and for the health and safety of other pupils and staff'. Section 28B(1)(b) of the 1995 Act (the defence that the treatment was justified) required a balancing exercise: the responsible body had to show that the unfavourable treatnent was justified in all the circumstances, including the interests of the school and the disabled pupiL In Governing Body ofOlchfa Comprehensive School Crane J. said at p.5 14:

Mr Giffin accepts that the issue of justification is to be considered "in the round".

In my view the Tribunal was entitled on the evidence to conclude in para N that 'Chad the reasonable adjustments been carried out it would not have been justified to exclude N as a disabled child on the several occasions that she was excluded". 1 agree with Mr Giffin's submission that if an approach of the kind set out in para M had been followed, it would have been sensible to give it an opportunity to work, rather than engage in a number of short exclusions of an essentially penal nature. It would also have been relevant that, if a proper approach had been taken, the misbehaviour leading to those exclusions may not have occurred. In any event this was a factual assessment for the Tribunal to make.

Mr Goudie submitted that parties should be given an opportunity to deal with what may be proposed by way of remedy before remedies are ordered. He referred to the recent Court of Appeal decision in D v Independent Education Appeal Panel of Bromley London Borough [2007] EWCA Civ. 1010 where the questions of justification for exclusion and the reasons for opposing reinstatement were dealt with together, rather than separately. The Court of Appeal held that dealing with those matters at the same hearing was not intrinsically wrong, but the questions gave rise to two separate issues which ought to be separately addressed, otherwise the parents would not know the case they would have to meet. Longmore LJ. said at para 4 that:

The order of the Tribunal as to remedies contained three elements: first, an apology; second, training; and third, a note to be added to N's school file.

There is no basis for challenging the apology that was ordered. It is clear from the Notes of the hearing that Mr Oldham, on behalf of the School, made submissions, however brief, on the "issue of apology". In my view the Tribunal was entitled to make the order that it did in this respect.

Mr Goudie said nothing about the note that was ordered to be put on Nⁱs school file and I can see no reason for disturbing that part of the order.

The real issue on this ground related to the order as to training. Mr Giffin accepted that the terms of the order differed from what was sought in the Claim Form and what was asked for by SPG representative in a Case Statement of 20 September 2006. However, in reaching my decision on this issue I take into account the following matters:

The Notice of Claim dated 4 May 2006 requested that "training to be given to Board of Govemors on the governing role and how to remain impartial on hearings. For all teachers to be made aware of the practice of exclusion and advice and training in dealing with this and strategies on how exclusion can be dealt with".

SP's representative in a Case Statement dated 20 September 2006 stated that

In the Grounds on which the claim is opposed dated 22 September 2006 the School do not address the issue of remedies.

Training is a remedy commonly ordered by Tribunals in discrimination cases

One remedy, namely an apology, was raised before the Tribunal (see para 37 above). The Tribunal's Notes of the final submissions on behalf of the School contain the words: "Remedy — no longer there so what can be done by way of order — issue Of apology — for reasons not appropriate". There was therefore the opportunity for the School to address the issue of training, if the School had chosen to do so.

The terms of the Tribunal's order require the Governing Body of the School together with the senior management of the School to refresh or review training in respect of their respective duties under the 1995 Act. This should include specific and distinct training to address the manifestations of ADHD and the varying needs of children diagnosed with it". SP indicated at the hearing that N would not be retuming to the School and it may have been in

Mr Goudie submitted that no training was required and suggested that the School will review the management of training and is better placed to do so. Mr Giffin was not adverse to the terms of the order being adjusted if there was a sensible reason for doing so. In my view it was proper for the Tribunal to make the order as to training in the terms that it did. Neither Mr Goudie nor Mr Giffin submitted that it should be reformulated in any specific terms and I do not consider it would be appropriate for me to reformulate this part of the order, nor do I propose in all the circumstances to remit this matter to the Tribunal.

The only amendment that I do need to make arises from the requirement that the Governing Body of the School do what was ordered "by no later than the end of the school tenn commencing in January 2007". I shall amend the time by which the apology shall be given and the note on Nⁱs school file added; they shall be done by no later than the start of the summer term 2008. I order that the time by which training be completed be amended to the end of the summer term 2008.

In my judgment the Tribunal has committed no error of law. Accordingly for the reasons I have explained, this appeal must be dismissed.