X Endowed Primary School v Special Educational Needs and Disability Tribunal & Ors

This is an appeal by the Governing Body of X Endowed Primary School (“the Governing Body”) against a decision of the Special Educational Needs and Disability Tribunal (“the Tribunal”) issued on the 9^th June 2008 that a pupil at the school, JT, then aged 10, was the subject of disability discrimination contrary to the Disability Discrimination Act 1995 (‘the 1995 Act’).

JT was at all material times a registered pupil at the school which is a maintained primary school within the School Standards and Framework Act 1998. As the governing body of a school within s.19, Education Act 2002, the Governing Body is the body responsible for the school within s.28A (5) and Schedule 4A to the 1995 Act and was the appropriate Respondent to the claim made before the Tribunal by his parents, (“Mr. and Mrs. T”), the Second Respondents to this appeal, about the manner in which JT was treated while he was a pupil at the school.

JT has Attention Deficit and Hyperactivity Disorder (“ADHD”). The problems commonly associated with children with ADHD include non-compliant behaviour, temper tantrums, mood swings, learning problems and aggression. The school encountered a number of difficulties with JT’s behaviour. There were internal and external exclusions. This culminated in JT’s exclusion from the school on the 6^th November 2007 following an incident when he physically assaulted a member of staff.

Mr. and Mrs. T brought proceedings before the Tribunal on a number of bases. The claim was successful in only one respect, namely it was established that the Governing Body, in breach of its duties under Part IV of the 1995 Act as amended, had failed to make a reasonable adjustment by enlisting the advice and support of the Access to Learning Specialist Team prior to the incident on 6^th November 2007. The Tribunal accordingly concluded that the Governing Body unlawfully discriminated against JT in excluding him from the school on 6^th November 2007. It ordered the Governing Body, inter alia, to apologise to Mr. and Mrs. T in respect of the single act of unlawful discrimination which it found established and to ensure that all staff who have contact with JT undertake training in respect of their duties under the 1995 Act, including specific and distinct disability awareness training on ADHD.

By its notice of appeal the Governing Body specifically challenges the Tribunal’s conclusion at paragraph 19F of its ruling that “an appropriate strategy and reasonable adjustments for the school would have been to enlist the advice and support of the Access to Learning Specialist Team prior to the incident on 6^th November 2007”. The sole ground of appeal is that the Tribunal erred in law in concluding that there was a failure to make a reasonable adjustment for JT’s ADHD i.e. that there was a failure to take reasonable steps to ensure that JT was not placed at a substantial disadvantage in comparison with pupils who are not disabled, contrary to section 28C of the 1995 Act. It is submitted that that ruling was wrong because the only aspect of JT’s ADHD in relation to which the Tribunal ruled that there had been a failure to make a reasonable adjustment was his tendency to physical abuse of other persons and it is specifically provided by Regulation 4 of the Disability Discrimination (Meaning of Disability) Regulations 1996, S.I.1996/1455 (“the 1996 Regulations”) that a tendency to physical abuse of other persons is not to be treated as a disability for the purposes of the 1995 Act.

The decision of the Tribunal may be summarised as follows.

On behalf of the Governing Body, Mr. Oliver Hyams submits that the only aspect of JT’s ADHD in respect of which the Tribunal concluded that there was a need to make a reasonable adjustment was his tendency to physical abuse of other persons. This, he submits, is not to be treated as a disability by reason of Regulation 4(1) of the 1996 Regulations. The nub of the Tribunal’s decision was that “an appropriate strategy and reasonable adjustment for the School would have been to enlist the advice and support of the Access to Learning Specialist Team prior to the incident on the 6^th of November 2007”, i.e. the date when JT was excluded from the school for violent behaviour. The purpose of enlisting that advice was clearly to minimise the risk of JT physically abusing other persons. The Tribunal implicitly concluded that the School had breached s.28C(1) of the 1995 Act by failing to enlist advice and support which related only to JT’s tendency to physical abuse of other persons. Mr. Hyams submits that there can be no obligation to make a reasonable adjustment for an impairment which is not a disability within the meaning of the 1995 Act.

On behalf of the Second Respondents Mr. and Mrs. T, who are supported by the Equality and Human Rights Commission in resisting this appeal, Mr. Robin Allen QC submits that the Tribunal did not err in ruling that there was a failure to make a reasonable adjustment in the case of JT as the correct statutory interpretation of Regulation 4(1) of the 1996 Regulations is that it only applies to free standing conditions and not to consequential symptoms or manifestations of an already protected impairment. As JT’s behaviour, namely the scratching and struggling to get free from his teacher, was related to his underlying protected disability, namely his ADHD, the Tribunal was correct to hold that JT’s behavioural difficulties were not excluded under the Regulations.

In the alternative, Mr. Allen submits that if the 1996 Regulations do not relate only to free standing conditions and can relate to manifestations or symptoms of an underlying protected condition, the reason for JT’s exclusion did not relate solely to the excluded condition or the Tribunal’s finding of “behavioural difficulties” does not amount to finding of “a tendency to physical abuse of other persons”.

More generally Mr. Allen submits that the Appellant’s suggested interpretation unjustifiably narrows the scope of protection of the 1995 Act for persons who have a disability such as JT’s, to their very great detriment. It undermines the socially inclusive purpose of promoting the fuller participation of disabled children into education, and, indeed, disabled adults into all areas of life in the United Kingdom. He submits that this reading is wholly inconsistent with the currently understood purpose and effect of the 1995 Act, current Government proposals in tackling exclusions from school and the international human rights obligations of the United Kingdom.

I granted an application by the National Autistic Society (“the NAS”) that they be added as a party to the appeal pursuant to CPR Part 52.1(3)(ii) on the basis that there will be no order for costs in favour of or against the NAS in this appeal. In the event, the submissions of Mr. David Wolfe and Miss Helen Mountfield on behalf of the NAS were limited to written submissions.

The NAS submits that the Appellant’s arguments are wrong in law and in principle. Furthermore, it submits that were the appeal to be allowed this would have profound and widespread detrimental implications for children and adults who have a disability in relation to which a tendency to react violently is inherent. Such persons include many persons with ADHD and many of those with Autistic Spectrum Disorders which can be associated with ADHD.

The NAS has lodged witness statements by Judith Gould, a Chartered Consultant Clinical Psychologist, and Mark Lever, the Chief Executive of the NAS, which I have admitted in evidence. These statements address, inter alia, the nature of ADHD and Autistic Spectrum Disorders.

The NAS has also responded in detail in writing to the reliance placed by the Governing Body on the special educational needs regime in Part IV, Education Act 1996.

Section 1 of the 1995 Act provides:

“1(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.”

The relevant provisions of Part IV of the 1995 Act are as follows:

“28A (2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.

…

(4)

It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily.

…

28B (1)For the purposes of section 28A, a responsible body discriminates against a disabled person if—

(a)

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

(b)

it cannot show that the treatment in question is justified.

(2)

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

(a)

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

(b)

it cannot show that its failure to comply is justified.

…

28C (1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that –

…

(b)

in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.

…

(4)

In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 14 of the Equality Act 2006.”

Paragraph 1 of Schedule 1 confers a power to make regulations.

“1 (2) Regulations may make provision, for the purposes of this Act -

(a)

for conditions of a prescribed description to be treated as amounting to impairments;

(b)

for conditions of a prescribed description to be treated as not amounting to impairments.

(3)

Regulations made under sub-paragraph (2) may make provision as to the meaning of “condition” for the purposes of those regulations.”

Regulation 4(1) of the 1996 Regulations provides:

“For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(a)

a tendency to set fires,

(b)

a tendency to steal,

(c)

a tendency to physical or sexual abuse of other persons,

(d)

exhibitionism, and

(e)

voyeurism.”

Section 3(A1) of the 1995 Act provides:

“The Secretary of Sate may issue guidance about matters to be taken into account in determining whether a person is a disabled person.”

Section 3 (3) provides:

“An adjudicating body determining, for any purpose of this Act…whether a person is a disabled person, shall take into account any guidance which appears to it to be relevant.”

The Secretary of State has issued guidance under s.3, to which reference will be made later in this judgment.

There is some authority on the application of the 1995 Act to a person who suffers from both a condition excluded by Regulation 4 from the ambit of the 1995 Act and an impairment which is not so excluded. It should be noted, however, that all of the cases on this point to which I have been referred, with the exception of McNicol v Balfour Beatty Rail Maintenance Limited[2002] ICR 1498, concern claims of discrimination against a person for a reason related to a disability as opposed to claims of discrimination based on a failure to make a reasonable adjustment for a disability.

In Power v. Panasonic UK Limited [2003] IRLR 151 Ms. Power claimed that her dismissal from her employment was contrary to the 1995 Act. It was not disputed that during the period when she was off work prior to her summary dismissal she was both depressed and drinking heavily. The Employment Tribunal held that she had failed to show that she was a disabled person. It relied on Regulation 3 of the 1996 Regulations which provides that “addiction to alcohol…is to be treated as not amounting to an impairment for the purposes of the Act”. The majority in the Employment Tribunal considered that that provision should be given greater weight than paragraph 11 of the Guidance issued by the Secretary of State which stated that “it is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded.” The Employment Appeal Tribunal (Ms. Recorder Slade QC, Mr. D. J Hodgkins CB, Mrs. M. T. Prosser) allowed the appeal. In its view the Employment Tribunal had not considered whether her depression had a substantial and long term adverse affect on her ability to carry out normal day-to-day activities but considered instead whether alcoholism caused her depression. It observed:

“It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering is caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such as disability.” (at paragraph 12)

It considered that the Employment Tribunal had fallen into error by its emphasis on the cause of the impairment from which the applicant was suffering at the material time.

Power assists the Appellant to the extent that it supports the view that it is irrelevant, for the purposes of determining whether a condition constitutes an impairment, how the condition came about. In Power it was irrelevant that depression, a protected impairment, may have been caused by alcoholism, an excluded condition. On this basis it should also be irrelevant whether an excluded condition was caused by a protected impairment. If this approach is correct it undermines the distinction Mr. Allen seeks to draw between a free standing condition comprising one or other of the various tendencies identified in Regulation 4(1) and a state of affairs where the tendency is a symptom or manifestation of, i.e. caused by, an underlying disability which is protected under the legislative scheme.

The decision of the Court of Appeal in McNicol v Balfour Beatty Rail Maintenance Limited[2002] ICR 1498 reinforces the point. There, the applicant complained of disability discrimination, asserting that he had suffered from a spinal injury, that his employers had refused him the right to work and that they had failed to make any reasonable adjustment to his employment arrangements. There was no medical evidence which established any physical cause of the back pain of which he complained and no evidence was adduced by him to establish that his back pain was a result of or consisted of a clinically well-recognised mental illness (a requirement of a disability as the statutory provisions then stood) or that it fitted the medical description of functional or psychological “overlay”. The Employment Tribunal held that he was not suffering from a physical or mental impairment and rejected the submission that a mental condition which caused pain was, by reason of that, a physical impairment. The Employment Appeal Tribunal dismissed an appeal by the applicant. The Court of Appeal, in dismissing a further appeal, held that “impairment” in paragraph 1 (1) of Schedule 1 to the 1995 Act was to bear its ordinary and natural meaning and it was clear from Schedule 1 that impairment could result from an illness or consist of an illness. Otherwise it was left to the good sense of the Tribunal to make a decision in any case on whether the evidence established that the applicant could fairly be described as having a physical or mental impairment.

Mummery L.J. with whom the other members of the court agreed observed:

“17.

The approach of the tribunal should be that the term “impairment” in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a “clinically well-recognised illness”. Apart from this there is no statutory description or definition of physical or mental “impairment”. The Guidance issued under section 3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states that “it is not necessary to consider how an impairment was caused” ( Part 1, Introduction, paragraph 11) and some examples of physical and mental impairment are given (e.g. sensory impairments affecting sight or hearing), but no general definition or description of “impairment” is attempted.

18.

I agree with the recent observations of Lindsay J in College of Ripon &York St John v Hobbs [2002] IRLR 185, 188, para 32:

“Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1, paragraph 1(1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the tribunal's ability, so familiar to tribunals in other parts of discrimination law, to draw inferences …”

This passage supports the Appellant’s case. Although the Court was not there concerned with the question of an excluded impairment, it accepts in a more general context that an impairment may be either an illness or something which results from an illness. No distinction is drawn between an underlying disability and its manifestations or effects.

Neither Power nor McNicol appears to have been cited in Murray v The Newham Citizens Advice Bureau Limited [2003] IRLR 340. There the applicant had applied to work as a volunteer at a Citizens Advice Bureau. He disclosed that in 1993 he had been imprisoned for stabbing a neighbour with a knife at which time the applicant had been diagnosed as a paranoid schizophrenic. He was not offered the post and complained of discrimination. The Employment Tribunal dismissed his complaint on the basis that he had not been discriminated against for a reason relating to his disability. It acknowledged that the stabbing incident was a direct result of the illness of paranoid schizophrenia. However it considered that the applicant’s tendency to physical abuse of other persons was a condition within Regulation 4(1) and accordingly could not be considered a disability within the meaning of the Act. The Employment Appeal Tribunal (Judge Serota QC, Mr. B Beynon, Mr. J R Crosby) allowed his appeal, observing:

“14.

… However, it seems to us that the language of the statute and of the Regulations is clear and it is unnecessary for us to give a purposive construction to section 1 of the Act. It is clear that the applicant suffered from a disability within the meaning of section 1, as the employment tribunal held in paragraph 39 of its decision. Section 1 and section 5 of the 1995 Act refer to a person having a “disability” which is a “physical or mental impairment”. Paragraph 1(2)(b) of Schedule 1 provides for “conditions” to be treated as “not amounting to impairments”. Parliament could have excluded conditions such as those provided for in Regulation 4(1) of the 1996 Regulations from being treated as part of a disabled person's disability, so far as the protection of the Act was concerned; it did not. Parliament could also have provided that discrimination against a disabled person, by reason of his having a condition specified by the 1996 Regulations, was outwith the protection of the Act. Again, it did not do so. In our opinion, the language of the provisions to which we have referred is clear. “Conditions” within the meaning of paragraph 1(2)(b) of Schedule 1 to the Act refer to free-standing conditions, and not to those conditions that are the direct consequences of a physical or mental impairment within the meaning of section 1(1) . The applicant's tendency to violence was found by the employment tribunal to be a consequence of the well-recognised mental illness of paranoid schizophrenia.

15.

In our judgment, where a person such as the applicant suffers from a recognised illness such as paranoid schizophrenia, a consequence of which is a tendency to violence, a potential employer may only treat him less favourably than other persons if he can justify that discrimination under section 5(1)(b) of the Act.”

I have some difficulty in following the reasoning in this passage. The fact that Parliament has excluded certain conditions from being an impairment as opposed to excluding them from being a disability to which an impairment may give rise is not a matter to which I would attach any particular significance. Furthermore, I am unable to see how the language of the provisions gives rise to a clear conclusion that “conditions” refers only to free standing conditions. Nevertheless, in its result this decision firmly supports the Respondent’s case.

The question whether the statutory scheme does draw a distinction of the kind identified in Murray arose for consideration by the Employment Appeal Tribunal once again in Edmund Nuttall Limited v Butterfield [2005] IRLR 751. Mr. Butterfield committed two offences of indecent exposure and one of dangerous driving on the same day. The next day he was admitted to hospital. He was sentenced to a three year community rehabilitation order with a condition of medical treatment and was also disqualified from driving. It emerged that he had been exposing himself to females over an eighteen month period. Mr. Butterfield told his employers that he had been disqualified from driving but said nothing about the offences of indecent exposure. His employers later found out about this. Mr. Butterfield was told that the company had lost trust in him as a result of the lies which he had told and he was dismissed. An Employment Tribunal upheld Mr. Butterfield’s claims of disability discrimination and unfair dismissal. It found that Mr. Butterfield committed the offences of indecent exposure because he had a mental illness, depression. On the employer’s appeal to the Employment Appeal Tribunal Mr. Butterfield relied on Murray v The Newham Citizens Advice Bureau. He submitted that Regulation 4(1) applied only to free standing conditions and that once it was found that the claimant had a disability within the meaning of the Act the Regulations were irrelevant if the claimant’s condition was a consequence of the disability. The Employment Appeal Tribunal (Judge Peter Clarke, Mr D Evans CBE, Mr B M Worman) considered Power and Murray and continued:

“29.

We do not find the relationship between legitimate impairment and excluded condition provided for in the [1995 Act], read with the 1996 Regulations, a comfortable one. Having considered the earlier cases and the submissions received from Counsel, our analysis, on the facts as found by this Tribunal, is as follows:

(1)

We respectfully agree with the EAT approach in Power that the question is not what caused the legitimate impairment.

(2)

We are not persuaded that the concept of a "free-standing condition" is helpful, c.f. Murray.

(3)

It is plain that a Claimant may have both a legitimate impairment and an excluded condition. That was the factual position in both Power and Murray and in the present case.

(4)

In these circumstances, it seems to us that the critical question is one of causation. What was the reason for the less favourable treatment, here dismissal of the Claimant?

(5)

If the reason was the legitimate impairment, then prima facie discrimination, subject to the defence of justification, is made out; if the reason was the excluded condition and not the legitimate impairment, then the claim fails by reason of his disability.

(6)

That distinction may be easily stated. However, it does not deal with the case where both the legitimate impairment and the excluded condition form the employer's reason for the less favourable treatment. In those circumstances, we find assistance in the approach of Mummery P, consistent with high authority, in O'Neill v St Thomas More School [1996] IRLR 372, in relation to dismissal on the grounds of pregnancy. The then President held in that case that it was not necessary for the Claimant to show that pregnancy was the only reason for her dismissal, provided it was an effective cause. Reverting to the wording of section 5(1)(a) DDA, the Claimant must show that the less favourable treatment was for a reason related to the Claimant's disability. Thus, in our judgement, focusing on the employer's reason for the less favourable treatment, if the legitimate impairment was a reason and thus an effective cause of the less favourable treatment, then prima facie discrimination is made out notwithstanding that the excluded condition also forms part of the employer's reason for that treatment.

30.

Applying that legal analysis to the facts as found by the Tribunal in this case, our conclusions are as follows:-

(1)

At the time of his dismissal on 7 April 2004, the Claimant was suffering from a mental impairment, depression, and was disabled within the meaning of Section 1 DDA.

(2)

The Respondent was aware of his mental state. He was admitted to hospital on 22 November 2003 and remained off work thereafter. Nevertheless, at the meeting on 19 February 2004, based on the account given by the Claimant, the Respondent was content for him to continue working for them with adjustments made to deal with his loss of his driving licence.

(3)

What changed, in the mind of the Respondent's directors, was the revelation by the Claimant's wife to Mr Medcroft as to the true position; that the Claimant had been convicted of offences of indecent exposure for which he received a CRO.

(4)

Having discussed the matter with his fellow directors, it was decided by Mr Medcroft that the Claimant must be dismissed, not because he suffered from a moderately severe depressive illness, as was made clear in Dr Nehaul's report, but because he had committed offences which could be deemed to be unethical or inappropriate behaviour which could bring the company into disrepute (Reasons paragraph 23). In evidence before the Tribunal, Mr. Medcroft added that the Claimant had misled the Respondent (as indeed he had at the meeting on 19 February).

(5)

In these circumstances, it seems clear to us, on the facts as found, that the sole reason for dismissal related to the excluded condition, not to the legitimate impairment. We do not accept that a legitimate medical impairment underlying an excluded condition, where that condition is the reason for less favourable treatment, means that disability is a reason for the less favourable treatment. To so find would, as Mr Croxford submits, render the effect of the Regulations nugatory. That cannot have been Parliament's intention in passing the Regulations.

Accordingly, we uphold the first ground of appeal and set aside the Tribunal's finding of prima facie discrimination by reason of disability.”

The reasoning of the Employment Appeal Tribunal in Butterfield provides powerful support for the Appellant’s submissions in the present case.

The only one of these decisions which is binding on me is the decision of the Court of Appeal in McNicol. Decisions of the Employment Appeal Tribunal, while not binding on me, would normally be accorded considerable respect and would be regarded as persuasive authority. However, in the present case I am faced with two conflicting decisions of the Employment Appeal Tribunal.

Mr. Allen in his submissions drew attention to the fact that both Murray and Butterfield are concerned with disability related discrimination as opposed to an obligation to make reasonable adjustment with which we are concerned in the present case. Nevertheless, the statutory provision to be applied is the same and I have found the reasoning of the Employment Appeal Tribunal in Butterfield of particular assistance in considering the interpretation of the relevant provisions.

In support of his submissions Mr. Hyams also relied on Lewisham LBC v. Malcolm [2008] 1 AC 1399 where the House of Lords held that in order to constitute discrimination contrary to the 1995 Act it had to be shown that there was some relationship or connection, not necessarily close, between the reason for the treatment and the disability. There, the claimant, a tenant of the local authority, had sub-let his premises in breach of the tenancy agreement. The tenant suffered from schizophrenia, unknown to the landlord. The question arose whether the landlord in giving notice to quit was discriminating unlawfully against the tenant. The House of Lords concluded that the tenant’s schizophrenia was not causally connected with or responsible for the subletting. Contrary to the submission of Mr.Hyams, I am unable to see that this decision casts any light on the correct approach to the issue of interpretation in the present case.

In Anyanwu v South Bank Student Union [2001] ICR 391 Lord Bingham, referring to section 33, Race Relations Act 1996 observed:

“2.

Section 33(1) is to be read in its context, as a provision in an Act passed to remedy the “very great evil” of racial discrimination (as recognised by Templeman LJ in SavjanivInland RevenueComrs [1981] QB 458 , 466–467), and it must be construed purposively (see Jones v Tower Boot Co Ltd [1997] ICR 254 , 261–262, per Waite LJ). Since the 1976 Act is one of a trio of Acts (with the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995) which contain similar statutory provisions although directed to different forms of discrimination, it is legitimate if necessary to consider those Acts in resolving any issue of interpretation which may arise on this Act.”

In Jones v Tower Boot Co Limited [1997] ICR 254 at pp.261H-262A Waite LJ observed:

“The Governing Principles of Statutory Construction

Two principles are in my view involved. The first is that a statute is to be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it (“the purposive construction”) and the second is that words in a statute are to be given their normal meaning according to general use in the English language unless the context indicates that such words have to be given a special or technical meaning as a term of art (“the linguistic construction”).

In his submission on behalf of the Appellant Mr. Hyams argued that it is necessary to focus on not only the question of what impairment is said to have given rise to the disability but also on the circumstances in which the Act is said to have been contravened. However, I consider that this approach confuses the scope of the protection against discrimination afforded by the Act with the question whether there has been any operative discrimination in an individual case. The question of the scope of the protection conferred by the statute is to be decided on the basis of the interrelationship of section 1 of the 1995 Act and Regulation 4(1) of the 1996 Regulations having regard always to the legislative purpose of these provisions.

The Respondent’s submission that the exclusion from protection established by Regulation 4(1) applies only to free standing conditions and not to derivative symptoms from an already protected, non-excluded condition could be accepted only if the conditions identified in Regulation 4(1) were each capable of existing as a free standing condition. However, there was evidence that each of the impairments identified in Regulation 4 (1) is capable of existing either as a free standing condition or as a derivative symptom from another disorder and this was common ground between the parties. I proceed on this basis.

The definitions of “disability” and “disabled person” in section 1 of the 1995 Act require a physical or mental impairment which has certain characteristics, namely a substantial and long term adverse affect on the ability to carry out normal day to day activities. Paragraph 1 of Schedule 1 makes clear that the legislation contemplates a need to treat certain conditions as not amounting to impairments for this purpose. Certain conditions which might otherwise be considered impairments are not to enjoy the protection against discrimination conferred by the Act.

Regulation 4(1) excludes from the protection of the Act five propensities to behave in a particular way, each of which is antisocial and unacceptable. Conduct of this kind would, in each case, normally constitute a criminal offence. Each is to be treated as not amounting to an impairment for this purpose.

Each is described in paragraph 4(1) as a “condition”. On behalf of the Respondents Mr. Allen submits that the word “condition” is in each case intended to describe a free-standing condition but is not intended to extend to symptoms or manifestations of an underlying impairment. However, I consider that the word “condition” used in its natural meaning is wide enough to include both categories. Just as the word “impairment” in Schedule 1 to this Act is appropriate to include both an illness and its manifestations (see College of Ripon and York St. John v. Hobbs [2002] IRLR 185, 188, para. 32; McNicol v. Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 at paras. 17, 18), I consider that “condition” is not as a matter of ordinary usage limited in the way suggested by the Respondent. To my mind the use of the word “condition” does not limit each of the tendencies identified in the following sub-paragraphs to independent, free-standing conditions. The words defining the excluded categories are general.

Contrary to the submission of Mr. Allen, I am unable to accept that the other provisions of the Regulations provide any support for his submission in relation to Regulation 4(1). Regulation 3 makes provision for addictions of various types. As in the case of the conditions identified in Regulation 4(1), they are to be treated as not amounting to an impairment for the purposes of the Act. However, paragraph (2) of Regulation 3 excludes the operation of paragraph (1) in cases where the addiction was originally the result of the administration of medically prescribed drugs or other medical treatment. There is no corresponding provision in relation to Regulation 4(1) excluding its operation where the condition is the product of an underlying disability. Similarly, paragraph (2) of Regulation 4 provides that seasonal allergic rhinitis (hayfever) shall be treated as not amounting to an impairment but this is then qualified by paragraph (3) which provides that this shall not prevent that condition from being taken into account for the purposes of the Act where it aggravates the effect of another condition. While I would accept that the scheme of these other provisions in the Regulation is not identical to that of Regulation 4(1), the provisions are closely analogous and had it been the intention of Parliament to limit Regulation 4(1) in the manner suggested by the Respondent I consider that it would have done so by a similar express provision.

By virtue of sections 3(A1) and 3(3) of the 1995 Act I am required, in determining whether a person is a disabled person, to take account of the Guidance issued by the Secretary of State. “The Disability Discrimination Act: Guidance on matters to be taken into account in determining questions relating to the definition of Disability” addresses exclusions from the definition at paragraphs A 12 et seq. Paragraph A 12 merely summarises the provisions of the Regulation. Paragraph A 14 provides with regard to paragraph 3 of the Regulation :

“A 14. A person with an excluded condition may nevertheless be protected as a disabled person if he or she has an accompanying impairment which meets the requirements of the definition. For example, a person who is addicted to a substance such as alcohol may also have depression, or a physical impairment such as liver damage, arising from the alcohol addiction. While this person would not meet the definition simply on the basis of having an addiction, he or she may still meet the definition as a result of the effects of the depression or the liver damage.”

This passage from the Guidance seems to me to do nothing to advance the Respondent’s suggested reading of Regulation 4(1). However, its acceptance that protected disabilities and excluded conditions may accompany each other in the same person does lend some support to the reading of Regulation 4(1) for which the Appellant contends.

Parliament might have decided that a distinction should be drawn between persons exhibiting one of the tendencies described in Regulation 4 as a free standing condition and those exhibiting one of those tendencies as a manifestation of another impairment which is entitled to protection under the legislation. This might possibly be justified on the ground that in many cases the latter would be more deserving of protection from discrimination than the former. However, for the reasons I have set out above I consider that there is nothing in the statutory provisions which supports the view that such a distinction was intended. Had this been the intention of Parliament, I should have expected this to be spelt out in clear terms.

The Regulation was adopted in 1996 shortly after the legislation was passed. In support of his proposed reading of the Regulation Mr. Allen drew attention to the fact that since then the legislation has been substantially amended – notably, for present purposes, by the Special Educational Needs and Disability Act 2001 which inserted, inter alia, sections 28A, 28B and 28C. As a result the applicable anti-discrimination regime now contains two types of anti-discrimination provision: those prohibiting disability related discrimination and those imposing an obligation to make reasonable adjustments. He submits that in the latter case, with which we are concerned in the present case, there is a need to anticipate situations in order to make adjustments. Here the focus is not on the disability but on the disabled person. He argues that whereas it is just possible to envisage a situation where protection against discrimination is to be denied in the context of a provision prohibiting discrimination if the sole cause was an excluded impairment, issues of causation do not arise where the duty is to make reasonable adjustments. As a result, he suggests, the reading contended for by the Appellant would make huge inroads into the protection afforded by such reasonable adjustment provisions.

In considering this submission it is necessary to bear in mind that the Regulations are not limited in their application to the field of education but are of general application. The 1995 Act as originally enacted included reasonable adjustment provisions in relation to other fields. Regulation 4 was intended from the outset to perform the same function in relation to both types of anti-discrimination provision. It must bear the same meaning in relation to both types of provision. Consequently, while the amendments inserted in the Act in 2001 do not advance Mr. Allen’s submission, it remains open to him to submit that the Appellant’s reading of Regulation 4 is incompatible with the reasonable adjustment provisions to which it must apply. However, for reasons which will become apparent when I come to address Mr. Allen’s alternative case, I am unable to accept that it is not possible to apply reasonable adjustment provisions by reference to protected disabilities and excluded conditions where they co-exist in the same person.

In my judgement, having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment. This reading is consistent with paragraph A 14 of the Guidance which contemplates situations in which excluded conditions and protected disabilities co-exist in the same person.

Mr. Allen criticises this result on the basis that it would make it necessary to examine in individual cases whether discrimination relates to a protected disability or an excluded condition. It is correct that such questions of causation will arise. However, they can be resolved, as the Employment Appeal Tribunal demonstrated in Butterfield. Moreover, it should be noted that the reading for which the Respondent contends would require a distinction to be drawn between a free standing condition and one which is a symptom of an underlying impairment. This could often be a complex and controversial question requiring expert medical evidence. In any event, the meaning of the provisions is not to be determined by the practical difficulties which may be created by the competing interpretations.

On behalf of the Governing Body Mr. Hyams seeks to rely, in support of his proposed reading, on the relationship of the 1995 Act and Part IV of the Education Act 1996 which makes provision for children with special educational needs. Mr. Hyams suggests that when the two statutes are considered in conjunction there is no need for the provisions under the 1995 Act to be given the wide reading for which the Respondent contends. He points to the duties imposed on a governing body or local education authority under section 317 of the Education Act 1996 and submits that the two statutory schemes are intended to be complementary. He relies in particular on the Code of Practice for Schools made pursuant to Part IV of the 1995 Act (“the Schools Code”). This identifies the three main sources of support available to disabled pupils in school as the disability discrimination duties, the planning duties and the Special Educational Needs framework (paragraph 3.1). Moreover, paragraph 3.13 provides:

“The duties in the Disability Discrimination Act are designed to dovetail with existing duties under the SEN framework. The main purpose of the SEN duties is to make provision to meet the special educational needs of individual children. To the extent that disabled children rely on special educational provision to have their needs met, equal opportunities for disabled children are dependent on the quality of the provision made through the SEN framework.”

While I accept that the provisions of the 1995 Act and the Education Act 1996 are intended to be complementary and that they may both apply to certain situations in the field of education, I am unable to accept that the scope and effect of the special educational needs provisions of the latter statute can cast any light on the question of interpretation now before me. First, Regulation 4(1) of the 1996 Regulations is of general application and is not limited to the field of education. Secondly, even if it were permissible to interpret one statutory scheme by reference to another, the Education Act of 1996 was passed after the Disability Discrimination Act 1995. Furthermore, the provisions in sections 28A and following were inserted by amendment in 2001.

Mr. Allen drew my attention to the following statement in the Schools Code:

“4.6.

… This Code cannot determine which pupils have or do not have a disability but the following considerations may be relevant:

a child may have significant behaviour difficulties and these may relate to an underlying physical or mental impairment which amounts to a disability as defined by the Act. If they do, the child will be covered by the Act by reason of the underlying impairment.”

I do not consider that this general statement casts any light on the interpretation of the Regulation. In particular, there is no indication that the Code is here addressing the excluded conditions.

In his written submissions, Mr. Allen submitted that this was a case where it was both legitimate and helpful to consider Ministerial statements in Parliament under the principle in Pepper v. Hart [1993] AC 593. However, even if one assumes, for the purpose of argument, that the provisions are ambiguous or obscure or lead to absurdity, this submission faces insuperable obstacles. The Respondents seek to rely on statements by Mr. William Hague MP, the Minister of State for Disabled Persons, during the debate on the 1995 Act. However, as Mr. Allen accepted in the course of argument, the provision which falls to be interpreted here is to be found not in the enabling provisions of the Act but in the Regulations made pursuant to them. In any event, the passages to which I was taken in the course of argument do not make clear the meaning of the enabling provision. Mr. Allen suggests that the repeated references by the Minister to “conditions” indicate that the intention was to exclude a free standing condition and not the manifestations of an already protected impairment. To my mind, they do not support the restricted reading for which he contends. Mr. Allen also seeks to rely on an answer to a Parliamentary question by Mr. Alastair Burt MP, then Minister of State at the Department of Social Security on 24^th July 1996, some six days before the Regulations came into force. However, even if it were permissible to have regard to such a statement for this purpose, there is to my mind nothing in the answer which supports the Respondents’ proposed reading of the Regulation.

Mr. Allen also drew to my attention certain policy considerations which he says arise on this appeal.

In this regard I have also considered the submissions and the evidence on behalf of the NAS.

This appeal is, of course, not concerned with withdrawing protection from persons who have a disability, but with determining the ambit of the protection accorded by the legislation. Nor is it concerned with the achievement of various policy objectives. It is concerned with identifying the intention of Parliament by reference to the statutory provisions and the object of the legislation. The statutory scheme makes clear the intention that employers, service providers and schools, amongst others, are not required to make reasonable adjustments in respect of certain types of conduct arising from specified conditions. I am unable to find any justification in the statutory scheme or the purpose of the legislation for narrowing the excluded category in the manner suggested.

Legislation is normally to be interpreted in conformity with international law including the treaty obligations of the United Kingdom. (Salomon v. Customs and Excise Commissioners [1967] 2 QB 116). In this regard Mr. Allen has drawn my attention to two treaties.

The first is the United Nations Convention on the Rights of the Child, 1989 which the United Kingdom has ratified and which became binding on the United Kingdom with effect from 15^th January 1992. However, there is nothing in Articles 23, 28 or 29 on which Mr. Allen relies which is capable of supporting his proposed reading of Regulation 4 and nothing which would require the court to adopt that reading in order to comply with the international obligations of the United Kingdom.

Secondly, he refers to the United Nations Convention on the Rights of Persons with Disabilities. 2006. This Convention was adopted by the General Assembly of the United Nations on 13^th December 2006 so it post-dates the legislation with which we are concerned. Furthermore, although the United Kingdom has signed the Convention it has not ratified it. In any event, Articles 7 and 24 on which Mr. Allen relies, do not lend any support to his proposed reading of Regulation 4.

For these reasons I consider that the Appellant’s proposed reading of Regulation 4(1) is correct. By contrast, the Respondents’ proposed reading restricts its meaning in a way which is not supported by the language employed, the statutory scheme or the legislative purpose. While the result contended for by the Respondents may be socially desirable, a matter on which I express no view bearing in mind in particular the general application of Regulation 4(1) far beyond the particular circumstances of this case, it is not the result achieved by the provisions under consideration.

In the alternative the Second Respondents submit that the reason for JT’s exclusion did not relate solely to the excluded condition, or that the Tribunal’s finding at paragraph 19C of “behavioural difficulties” does not amount to a finding of “a tendency to physical abuse of other persons”. It is convenient to consider these submissions in reverse order.

The Second Respondents submit that the Tribunal’s finding as to JT’s conduct did not amount to a finding of “a tendency to physical abuse of other persons” within Regulation 4(1). They submit that the finding of “behavioural difficulties” in paragraph 19C is significant. While the Tribunal could have characterised the conduct as a tendency to physical abuse, as it did earlier in paragraph 19C of its decision in relation to conduct in another incident which occurred on 13^th June 2007, it did not do so.

It is puzzling why the Tribunal concluded in relation to JT’s conduct on 13^th June 2007 that it arose from a tendency to physical violence and was therefore “exempted from the jurisdiction of the Act” but did not address this point in relation to the conduct of 6^th November 2007. It appears from paragraph 14 of the decision that the conduct on 13^th June was an attack on a child of 6 or 7 years following a dispute in a football game. That incident resulted in JT being excluded at lunchtimes for a week. The Tribunal concluded that it did not have sufficient evidence to conclude that the treatment was for a reason relating to JT’s disability. It then went on to note that conditions which are a tendency to physical violence are exempted. However, to my mind this submission on behalf of the Second Respondent seeks to read too much into the terms of the decision. This does not suggest that the Tribunal concluded that the conduct on 6^th November 2007 fell short of conduct arising from a tendency to physical violence. I can see no reason for drawing such a distinction between the two instances on the basis of the facts. They are similar in kind. Nor does the Tribunal’s description of the later incident as “behavioural difficulties” support this view.

In any event, the question for determination is whether the conduct is to be regarded as arising from “a tendency to physical abuse of other persons” within Regulation 4(1). The Second Respondents, whilst not seeking to belittle JT’s behaviour, submit that it was merely an incident of scratching and kicking and of struggling to break free from being forcibly removed from class and that it is difficult to see how this type of behaviour could be that which Parliament was intending to exclude from the protection of the statute. However, although this assault and the earlier assault in the football game come low in the scale of seriousness, they are fairly to be regarded in the circumstances of this case as arising from a tendency to physical abuse of other persons.

This conduct does, in my judgement, amount to a tendency to physical abuse of other persons within the meaning of Regulation 4(1). The fact that the tendency is, as the Tribunal found, a manifestation of a condition entitled to protection under the 1995 Act (i.e. ADHD) does not, for reasons given above, remove it from the scope of Regulation 4(1).

It then becomes necessary to consider whether the discrimination found by the Tribunal in fact related to the excluded condition (the tendency to physical abuse) or to the protected disability (ADHD) or to both. Here, it seems to me, the correct approach must be based on that adopted by the Employment Appeal Tribunal in Edmund Nuttall Ltd. v. Butterfield, adapting that of Mummery P., as he then was, in O’Neill v. St. Thomas More School [1996] IRLR 372. The question for consideration in Butterfield was whether the less favourable treatment was for a reason related to a protected disability. In the present case it is necessary to consider whether the failure to take reasonable steps was, at least in part, in respect of a protected disability.

At paragraph 19C of its decision, in a passage set out in full at paragraph 6(3) above, the Tribunal describes JT’s conduct on 6^th November 2007 i.e. becoming disruptive and difficult in class, walking around the classroom, struggling to get free and scratching the learning support assistant who had taken him by the hand to remove him from the lesson. The Tribunal considered that this is consistent with the behaviour of a child with ADHD and that the escalation of events which led to his scratching a member of staff was therefore related to his disability. The Tribunal went on to conclude that had JT not displayed “such behavioural difficulties” he would not have been excluded from the school.

It appears from the context that the reference in this passage to “behavioural difficulties” as the reason for JT’s exclusion relates to his conduct in assaulting a member of staff. The whole of this passage, which appears under the heading “Exclusion on 6^th November 2007”, addresses “the event where [JT] is claimed by the school to have physically assaulted a member of staff”. Furthermore, the Tribunal accepted at paragraph 19E that the Governing Body had excluded him for the reasons they gave i.e. health and safety grounds and the maintenance of standards, which the Tribunal accepted to be material and substantial reasons. This provides further support for the conclusion that the reason for the exclusion was JT’s conduct in assaulting a teacher. I consider, therefore, that this was not a reason relating to his protected disability but one relating solely to the excluded condition.

However, the Tribunal’s decision is founded on its conclusion that the Governing Body had failed to take such steps as it was reasonable for them to take to ensure that JT was not placed at a substantial disadvantage in comparison with pupils who are not disabled. It is that conclusion which is specifically challenged in this appeal.

Although a number of complaints were made by Mr. and Mrs. T in the proceedings before the Tribunal of alleged failures to make reasonable adjustments, the only one which was upheld was the failure to enlist the advice and support of the Access to Learning Specialist Teaching Team prior to the incident of 6^th November 2007. In the passage at paragraph 19F of its decision, set out at paragraph 6(6) above, which precedes and explains this conclusion, the Tribunal refers to the fact that, following the incident which resulted in exclusion, Kathy Kreetzer from the Access to Learning Specialist Team produced a report and provided training to the staff. The Tribunal referred in particular to the evidence that none of the Learning Support Assistant staff had been offered training regarding ADHD. It was on this basis that the Tribunal concluded that an appropriate strategy and reasonable adjustment for the school would have been to enlist the advice and support of the Access to Learning Specialist Team prior to the incident on 6^th November 2007. This was, the Tribunal considered, a practical step to have taken and one which would not have made unwarranted demands on the financial resources of the responsible body. The Tribunal expressed its surprise that these strategies were not already in place.

While the measures described in the decision at paragraph 19F appear to include means of controlling a tendency to physical abuse, I do not understand them to be limited to such matters. On the contrary, they appear to include measures for the management of pupils with ADHD generally, including calming and de-escalation strategies. Such strategies may be directed at non-compliant and disruptive behaviour falling short of a tendency to physical abuse. In this regard I also note that the relief granted by the Tribunal included an order that the Governing Body ensure that all staff who have contact with JT, including the head teacher, teachers, learning support assistants, dinner time supervision staff and clerical staff, undertake training on their duties under the Disability Discrimination Act which should include specific and distinct disability awareness training on ADHD. I consider that there was here a failure to make a reasonable adjustment in respect of a protected disability.

For these reasons I consider that the Tribunal was correct in its conclusion that there had been unlawful discrimination arising from the failure to take reasonable steps to ensure that JT was not placed at a substantial disadvantage by comparison with pupils who are not disabled.