OA v The Responsible Body for School F

The Respondent requested that an order be made under rule 14. This was agreed and unopposed by the Appellant. I consider that such an order is appropriate. The usual practice in disability discrimination cases in this Chamber is to anonymise the name of a child or young person in any published decision, without formal order, subject to any objection. In this case that also needs to extend to the identity of the Respondent both for their purposes and in order to preserve the Appellant’s anonymity.

The Appellant, who brings this appeal by way of his mother, was a student at the Respondent school (“the School”). It is not in dispute that at the material times the Appellant was a disabled person pursuant to section 6 of the Equality Act 2010, with a diagnosis of autism.

The Appellant was due to take GCSE examinations in 2022 whilst at the School. On 31 March 2022 an Access Arrangement application was made by the School to the qualification body, the Joint Council for Qualification (“JCQ”), in respect of the Appellant and potential time adjustments for his examinations.

On that application the Appellant received a 25% adjustment. On a later application made by a different body, the Appellant received a 50% adjustment.

The claim was presented on 31 August 2022. In section 5 of the claim form under the description of ‘unfavourable treatment’ it was stated: “My child was not provide with adequate Access Arrangement application made on 31.03.2022 to my child's Awarding Bodies in Subjects and Joint Council for Qualifications for GSCE as confirmed by JCQ in May 2022. My child has potential to disadvantage further choices, grades needed for courses and requirements for further education.”

Under the description of ‘disadvantage because of a failure to make reasonable adjustments’ it was stated: “Failure to make reasonable adjustments to Awarding Bodies and JCQ for access arrangements for GSCE”.

In an order made by the First-tier Tribunal (“the Tribunal”) on 28 November 2022, it was recorded that: “The Responsible Body (RB) has provided a Response. In that Response the RB submits that the Claim is in part if not entirely against the Awarding Bodies in Subjects and Joint Council for Qualifications, and therefore it is outside of the jurisdiction of this Tribunal. The RB further submits that the claim is insufficiently particularised and has no realistic prospect of success. In these circumstances the Tribunal is considering whether this claim should be struck out pursuant to Rule 8 (3) and/or (4) of the Tribunal Procedure (FtT (HESC) Rules 2008)”.

Before any strike out decision was to be taken by the Tribunal, written representations were sought from the parties.

The Tribunal ordered the Appellant to provide written responses as to why his claims should not be struck out because:

“a.

The Claim of unfavourable treatment is against the Awarding Bodies in Subjects and Joint Council for Qualifications and the Tribunal does not have jurisdiction in respect of decisions of JCQ.

b.

The Claim of unfavourable treatment in respect of the RB is so vague as to have no prospects of success.

c.

The Claimant has not identified what practice or procedure of the RB the RB failed to adjust to take account of the Claimant’s disability.

d.

The claim for reasonable adjustments against the RB is so vague and lacking in particulars that it has no prospects of success”.

The Respondent provided further information and the Appellant provided a response.

On 25 January 2023 a case management hearing by telephone took place as arranged by the earlier order. The Appellant’s mother attended as did counsel for the Respondent, who also represented the Respondent at this appeal hearing.

After that hearing the Tribunal reached a decision, sent to the parties on 03 February 2023, that the claim should be struck out under rule 8(4) of the Tribunal (First-tier Tribunal Rules) 2008 because the Appellant had: “failed to provide particulars of any claim under the Equality Act 2020 that has any reasonable prospects of success in this Tribunal and in these circumstances, it is proportionate to strike this claim out”.

On 03 March 2023, the Appellant applied for permission to appeal to the First-tier Tribunal, which was refused on 07 June 2023.

Permission to appeal was made the Upper Tribunal on 07 July 2023. This was refused on the papers by Judge Price on 14 November 2023.

The Appellant made an application for an oral hearing of the permission to appeal application and permission to appeal was granted by a decision sealed on 19 November 2024.

The Notice of Appeal relies upon two main grounds. These were described by the Appellant as follows:

“Ground 1: Irrationality

•

Section 20 was not considered in the Tribunal’s decisions dated 3 February 2023 and 7 June 2023, respectively. Judge Tudur’ decision related to section 15 and 19 Equality Act 2010. I believe it is irrational for the Tribunal to consider section 15 and 19 because I did not bring claims under these grounds.

•

It is further irrational for the Tribunal not to have considered section 20.

•

Judge erred by referring to negligence as this is not a negligence claim and you have never proposed this to be the case. Together with this and above, I believe the Tribunal erred because they took into account irrelevant considerations.

•

Medical Evidence of Dr Kelly report demonstrates pages 9 through 12 show very low range, see page 9, paragraph 7.15, page 10, para 7.20 and 7.40 and 7.80 Extremely low range and the access arrangements are on page 29.

•

Access Arrangement Applications for exams on March 2022 and October 2022.

•

The Outcome of [the Appellant] passed his exams in early January 2023 before the Telephone Case Management Hearing

•

The case has therefore been struck out without full consideration and I was not given an opportunity to submit further evidence, or a rebuttal of the RB’s response.

•

As above, the Tribunal must provide written reasons for a final decision, and these reasons must be sufficient to explain why the decision has been reached.

•

The Decision Notice did not provide sufficient written reasons to explain the Judge’s decision

Ground 2: Procedural unfairness

1.

I accept I did not particularise my claim in the initial claim form. I did, however, do this my response to the Tribunal Order dated 29 November 2022. Further, I intended to do so at the TCMH but felt unable to (as you have already set out in your initial application for permission to appeal to the FTT).

2.

I was not given a fair chance to make my case – I refer to Witness Statement attached. Also I requested a transcript of the Telephone Case Management Hearing but was advised that the Tribunal cannot provide this-see attached Witness Statement of Telephone Case Management Hearing on 25 January 2023

•

The Responsible Body(RB) had a barrister, I was unrepresented.

•

The Judge did not make a decision at the Telephone Case Management Hearing and as such I should have been given an opportunity to provide submissions as the matter being considered was of upmost importance for example whether the claim should proceed.”

The Notice of Appeal stated that both a section 15 and a section 19 claim were not being pursued. At the permission to appeal hearing Mr Friel for the Appellant confirmed that no section 19 issue was being pursued and that the appeal was based upon the reasonable adjustment claim and permission to appeal was granted with respect of the section 15 issue.

The two main grounds of appeal reformulated and pursued were: (i) inadequate reasons provided by the Tribunal; and (ii) a failure by the Tribunal to consider both section 15 and section 20 claims: the Appellant had provided sufficient evidence and the Tribunal had failed to have regard to it.

The ground of inadequate reasons was dismissed as not being arguable.

Permission to appeal was granted on the section 15 issue after a conclusion that it was arguable that on a proper application of the guidance from the authorities, the Tribunal impermissibly considered the Appellant’s claim as being an allegation of negligence (whether meant in a legal sense or otherwise) and not anything arising from the Appellant’s disability as alleged such that the claim had no reasonable prospect of success.

It was also noted that it was clear that the arguments made at the permission to appeal hearing were made with significantly more clarity than those before the Tribunal and the full position before the Tribunal would be considered at the substantive appeal hearing.

It was also recorded that at the substantive appeal consideration may be given as appropriate to authorities addressing the approach to section 15 claims, such as the Court of Appeal in City of York Council v Grosset [2018] EWCA Civ 1105 and the Employment Appeal Tribunal in Department of Work & Pensions v Elaine Robinson UKEAT/0021/19/BAwhere mishandling the implementation of recommended adjustments could, in principle and depending on the facts, be contrary to section 15, just as refusing to implement them, or making the claimant pay for them, could be a breach of the section (see also generally the Court of Appeal decision in Dr Peter Dunn v The Secretary of State for Justice and HMIP [2018] EWCA Civ. 1998). Although in the instant case the Tribunal’s role was not to determine the claim but to assess whether the Appellant’s case on this issue had a reasonable prospect of success.

Permission to appeal on the section 20 issue was also granted. It was considered that although the Appellant was not able to articulate an adjustment to the Tribunal at the hearing, the Tribunal did consider that the Claimant’s mother inferred from an alleged failure of the School to secure a 50% allowance that it had failed to take the correct steps. The Tribunal considered that the 50% allowance was secured at a different time and in different circumstances, but having regard to the authorities set out above relating to striking out discrimination claims, it is arguable that the Tribunal’s approach does not necessarily address the question of whether a reasonable adjustment could have been made in the circumstances prevailing at the material time.

However, it was readily acknowledged that there is a limit to which a Tribunal can extend an inquisitorial role and/or identify an argument on behalf of a party from the material presented and the Court of Appeal in DPP Law v Greenberg [2021] EWCA Civ. 672 reconfirmed at paragraphs 57 and 58 that decisions of tribunals must be read fairly and as a whole, it is a virtue for a tribunal to give its reasons simply, clearly and concisely and that decisions should be subject to sensible evaluation, not “pernickety critiques” or over analysis.

The Respondent was represented by Ms de Coverley who was present at the original Tribunal hearing and the Claimant was represented by Mr Friel, who has been instructed for the purposes of this appeal and was not present at the original Tribunal hearing.

Rule 8(3) and (4) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“Tribunal Procedure Rules”) provides the following with regard to a Tribunal’s discretionary power to strike out a party’s case:

“(4)

The Tribunal may strike out the whole or a part of the proceedings if—

(a)

the applicant has failed to comply with a direction which stated that failure by the applicant to comply with the direction could lead to the striking out of the proceedings or part of them;

(b)

the applicant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or

(c)

the Tribunal considers there is no reasonable prospect of the applicant's case, or part of it, succeeding.

(5)

The Tribunal may not strike out the whole or a part of the proceedings under paragraph (3) or (4)(b) or (c) without first giving the applicant an opportunity to make representations in relation to the proposed striking out”.

Common law authorities confirm discrimination claims are generally fact sensitive and proper determination is desirable, but confirms that cases can be struck out (see for example Anyanwu v South Bank Student Union [2001] ICR 391, HL). In Ahir v British Airways plc [2017] EWCA Civ. 1392, CA LJ Underhill stated:

“…tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment”.

There are also other relevant authorities such as Ezsias v North Glamorgan NHS Trust [2007] ICR 1125, CA; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, CS; Chandhok v Tirkey [2015] ICR 527, EAT and Christian Mallon v Aecom Ltd UKEAT/0175/20, EAT where main principles are addressed relating to “a core of disputed fact” and “accepting a case at the highest”:

“It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation (Ezsias). 

“Strike out is a draconian measure, generally inappropriate where there is a core of disputed fact, to be approached with particular caution in discrimination claims and inappropriate in all but the clearest cases . . . I appreciate that, even where there is a factual dispute in a discrimination case, strike out could be appropriate where, for example, accepting a parties case at the highest, the claim or defence has no reasonable prospect of success: the key facts might not be disputed, the claim or defence might be wholly inconsistent with incontrovertible documents, or, even if it is assumed that evidence on a disputed matter will be accepted, the claim or defence could still be hopeless” (Mallon).

These principles are of equal application across jurisdictions and there is no difference in approach for the First-tier Tribunal relating to special educational needs and disability in schools (see Anyanwu for a general view of discrimination claims).

In Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2001] UKHL 16 where the issue of defective pleadings was considered, it was confirmed:

“Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies”.

An appeal judge:

“should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge” - Royal & Sun Alliance Insurance Plc v T&N Ltd [2002] EWCA Civ 1964 (QB).

In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 it was further confirmed that:

“What is clear is that the hurdle for an appellant is a high one whenever a challenge is made to the outcome of a discretionary balancing exercise. The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter. . . It is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge”.

In Howells -v- Newport City Council [2025] EWHC 22 (Ch) it was common ground that when considering a strike out/summary judgment application:

“the court ought to assume that the facts relied on by the claimant are true: that is, the defendant’s contention is that, even if (which it does not necessarily accept) the facts alleged by the claimant are true, his claim must fail”.

With regard to the Apellant’s disability discrimination claim, section 15 provides:

“(1)

A person (A) discriminates against a disabled person (B) if –

(a)

A treats B unfavourably because of something arising in consequence of B’s disability; and

(b)

A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2)

Sub-section (1) does not apply if A shows that A did not know and could not have reasonably be expected to know that B had the disability”.

The general issues to consider on a section 15 claim are:

A more detailed summary of (a) to (d) above, as derived from the relevant authorities, was set out by the Employment Appeal Tribunal in Pnaiser v NHS England & another [2016] IRLR 170 at paragraph 31:

“(a)

A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B.  No question of comparison arises.

(b)

The Tribunal must determine what caused the impugned treatment, or what was the reason for it.  The focus at this stage is on the reason in the mind of A.  An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case.  Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case.  The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

(c)

Motives are irrelevant.  The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant . . . A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises.

(d)

The Tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is “something arising in consequence of B’s disability”.  That expression ‘arising in consequence of’ could describe a range of causal links . . . more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e)

However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f)

This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 

(g)

. . . the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability. 

(h)

. . . the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability.  Had this been required the statute would have said so.  

(i)

. . . it does not matter precisely in which order these questions are addressed.  Depending on the facts, a Tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant’s disability”.  Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to ‘something’ that caused the unfavourable treatment.”

The starting position in law in respect of the duty to make reasonable adjustments is contained in section 20 of the Equality Act 2010, which provides:

“(2)

The duty comprises the following three requirements.

(3)

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)

The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)

The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”.

Once satisfied that the section 20 duty has potentially been triggered, consideration is then given to what adjustments could and should have been made. The onus falls on the claimant, not the respondent, to identify in broad terms the nature of the adjustment that would avoid the substantial disadvantage, as was considered in Project Management Institute v Latif [2007] IRLR 579 where the EAT held:

“53.

We agree with Ms Clement. It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable amendment has been identified.

54.

In our opinion the paragraph in the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.

55.

We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”.

The burden of proof provisions are contained in section 136 of the Equality Act 2010.

The parties also referred to other authorities expressing similar principles, such as SS v Proprietor of an Independent School [2024] UKUT 29; Meagher v The Chancellor, Masters And Scholars of the University of Cambridge & Ors [2025] EWHC 30 (KB); and A Multi Academy Trust v RR [2024] UKUT 9 (AAC), which I have taken into account.

The Tribunal set out its reasons in respect of the section 15 claim as follows:

“Ms de Coverley [for the Respondent] submitted that this was not a claim that could be pursued under either Section 15 or 19 of the Equality Act 2010 because the complaint related to alleged negligence, rather than either unfavourable treatment as a result of [the Appellant’s] disability or a provision, criterion or practice which discriminated against [the Appellant] having regard to his disabilities. I accepted the submission.

The provision, criterion or practice relied on by the Claimant is that of seeking special arrangements for examinations. The very purpose of this practice is to make adjustments for disability, and I accept that the Claimant had no prospect of succeeding with a claim for indirect discrimination under Section 19 in respect of the matters alleged by [the Appellant’s mother].

In respect of the claim under Section 15, I accepted the submission made by the RB that what was alleged was disadvantage arising from negligence on the part of the RB and not anything arising from [the Appellant’s] disability. Accordingly, there was no prospect of a claim succeeding under that Section.”

After considering the reasonable adjustment argument the Tribunal concluded:

“The Claimant has repeatedly been ordered to identify the reasonable adjustments it is alleged that the RB should have been made in seeking special arrangements. The Claimant has failed to identify those reasonable adjustments and during the telephone case management hearing conceded that she could not identify reasonable adjustments. My understanding is that the Claimant’s mother alleges that it is to be inferred by the failure of the RB to secure a 50% allowance that it failed to take the correct steps. The RB did secure a 25% allowance. A 50% allowance was secured in different circumstances and at a different time. The Claimant has failed to identify any specific reasonable adjustments that he maintains the RB should have made and I am not satisfied that the inference of failure to make reasonable adjustments advanced by [the Appellant’s mother] has any real prospects of success.

In these circumstances I was satisfied that the Claimant has failed to provide particulars of any claim under the Equality Act 2010 that has any reasonable prospects of success in this Tribunal and in these circumstances, it is proportionate to strike this claim out. In arriving at this conclusion, I have had regard to the submissions and evidence submitted by both parties”.

The parties provided helpful written submissions supplemented by oral argument.

As acknowledged in the permission to appeal decision, it was of considerable assistance to have the full picture clarified that was before the Tribunal.

As stated above, the Appellant’s pleaded case before the Tribunal with regard to unfavourable treatment was: “My child was not provide with adequate Access Arrangement application made on 31.03.2022 to my child's Awarding Bodies in Subjects and Joint Council for Qualifications for GSCE as confirmed by JCQ in May 2022. My childs has potential to disadvantage further choices, grades needed for courses and requirements for further education. The pleaded reasonable adjustments claim was: “Failure to make reasonable adjustments to Awarding Bodies and JCQ for access arrangements for GSCE”.

The Appellant has not sought to amend those pleadings.

Judge Lom gave an opportunity to the Appellant to provide a written response as to why the claims should not be struck out and in doing so assisted the Appellant by setting out the identified deficiencies in the pleaded case.

In response the Appellant provided a typed 21-page submission together with the Equality and Human Rights Commission Technical Guidance for Schools in England and additional evidence in a PDF totalling 88 pages.

The Upper Tribunal at this hearing was presented with the Respondent Counsel’s summary note of the Tribunal hearing, which seems to contain an inaccuracy over the presence of an individual, but it is presented by Counsel knowing their duty to the Upper Tribunal and therefore it is accepted as an account, but with weight placed upon it as appropriate in the full context of the other available material.

The body that can sanction the provision of additional time in examinations is the Joint Council for Qualifications (“the JCQ”). The Appellant wished to apply for additional time and the Respondent made an on-line application in respect of the Appellant. Statements from teachers were considered and included with the School’s application to the JCQ.The School had not rejected Dr Kelly’s report, it had been considered and evaluated as part of all the evidence.

The on-line application made by the Respondent produced an assessment by the JCQ of an additional 25% time. The Appellant was assessed as not meeting the JCQ criteria for up to 50% extra time.

It is not in dispute that the report of Dr Kelly dated 28 March 2021 is the principal material that the Appellant says was dealt with incorrectly by the Respondent. It is also not in dispute that this was a privately commissioned report.

The Joint Council for Qualifications is regulated by its own ‘Regulations on Access Arrangements and Reasonable Adjustments’ (“the JCQ Regulations”).

The JCQ Regulations state under the heading “Importance of these Regulations” (with JCQ emphasis):

“These regulations must be used when processing applications using Access arrangements online.

Failure to comply with the regulations contained in this document have the potential to constitute malpractice which may impact on the candidate’s result(s).”

Rule 7.3.6 provides:

“A privately commissioned assessment carried out without prior consultation with the centre cannot be used to award access arrangements and cannot be used to process an application using Access arrangements online.”

The on-line application did not provide a copy of Dr Kelly’s report to the JCQ as expressly directed by its rules.

A second application to the JCQ was made on the Appellant’s behalf. This was made by a different educational establishment after the Appellant had been educated in a different setting since September 2022. His ‘normal way of working’ needed to be observed by professionals at that educational setting for the purposes of obtaining access arrangements. It was confirmed to me by both counsel that Dr Kelly’s report was also not provided to the JCQ with that application.

Therefore the Tribunal was correct when it stated that: “A 50% allowance was secured in different circumstances and at a different time”.

It is not arguable on the facts that the School failed to provide Dr Kelly’s report to the JSQ. The JSQ Regulations do not permit it and contrary to the view expressed at the permission to appeal hearing, the second application also did not provide a copy.

I accept the submission on behalf of the Respondent that the Tribunal’s reference to ‘negligence’, when placed in context, was to summarise the Appellant’s assertion of the School’s failed preparation.

With regard to the section 15 claim, once it has been established that there was no scope for the Respondent to provide a copy of Dr Kelly’s report to the JCQ and that the second application also did not provide that report, the case falls on the content of the application somehow being unlawfully inaccurate.

The JCQ Regulations set out that an application for extra time of more than 25% and up to 50% must only be processed in stipulated “exceptional circumstances”. The Regulations state that: “so as not to give an unfair advantage, only very substantially below average standardised scores of 69 or less are acceptable”. A candidate must have two very substantially below average standardised scores which relate to two different areas of speed of working.

It was argued on appeal that the scores assessed by the School with reference to the Appellant were not correct having regard to Dr Kelly’s report, which references a conclusion of an “entitlement” of “up to” 50% extra time. That is disputed by the Respondent, which argues that although the score for Processing Speed was below 69, to qualify for the 50% time allowance, there has to be a score below 69 in two areas. Although Cognitive Proficiency was also below 69, it is a composite score derived from Processing Speed and Working Memory, as confirmed by the Wechsler Intelligence Scale for Children Manual and Cognitive Proficiency does not count as a “separate area” under the criteria.

However, all does not rest on Dr Kelly’s report, the JCQ Regulations further provide that a SENCo must also have clear evidence that extra time of up to 50% is needed, as set out under paragraph 5.3.2, such as evidence of the candidate’s current difficulties and how they very substantially impact on teaching and learning in the classroom and showing the involvement of teaching staff in determining the amount of extra time required.

A witness on behalf of the School confirmed that: “The Educational Psychologist (EP) Report provided by the candidate as evidence for his appeal is a report that was produced for a tribunal involving his Local Authority regarding his EHCP. A private EP report is not accepted as the basis for awarding access arrangements; however, in this case, we did take it into consideration”, my emphasis.

Once the material before the Tribunal is clearer, notwithstanding the detail of the above legal and factual analysis, this appeal can be addressed reasonably succinctly. I accept the Respondent’s submissions that sufficient reference to the scoring issue had not been made on behalf of the Appellant in the material, or at the hearing before Judge Lom, despite having had a significant opportunity to do so.

The issue raised in the long written representation by the Appellant’s mother to the Tribunal was essentially that Dr Kelly’s report was ‘rejected’ by the School and more explanation does not appear to have been provided at the hearing.

This may explain the observation stated on behalf of the Appellant in the Notice of Appeal, although recognising of course that the Appellant’s mother is a lay-person: “I believe it is irrational for the Tribunal to consider section 15 and 19 because I did not bring claims under these grounds”.

The Tribunal may not have expressly referred in its decision to authorities relating to the exercise of caution when striking out discrimination claims, but it is my conclusion that when subject to sensible evaluation it was open to the Tribunal to decide that there was no reasonable prospect of the Appellant's case succeeding under rule 8 of the Tribunal Procedure Rules. The Tribunal applied the correct principles, took into account the matters that should have been taken into account, left out matters which were not relevant and the decision cannot be regarded as being outside the ambit of discretion entrusted to the Tribunal.

The weight to be given to the salient factors was a matter for the Tribunal and putting the Appellant’s claim at its highest on the information provided to the Tribunal it was inconsistent with the undisputed contemporaneous documentation.

With regard to the reasonable adjustments claim, once the circumstances before the Tribunal are clear, the decision on appeal is reasonably straight forward. There was no error of law by the Tribunal when it concluded that the Claimant had not identified the constituent elements of a reasonable adjustment claim.

As recorded in the permission to appeal decision, it has not been argued that the Tribunal was incorrect when it stated that the Appellant’s mother conceded when representing the Appellant at the case telephone management hearing that she could not identify the reasonable adjustments. The Appellant was given sufficient opportunity to identify the adjustment and the best that was achieved was the Tribunal’s understanding that the Appellant’s mother alleged that it was to be inferred by the failure of the School to secure a 50% allowance that it had failed to take the correct steps.

Having regard to the burden of proof provisions, the authorities cited above with regard to striking out claims, and having established that Dr Kelly’s report was not provided as part of the second application to the JCQ when a 50% allowance was granted, there was no error of law in the Tribunal concluding that the Appellant had failed at the Tribunal hearing to identify any specific reasonable adjustments that he maintains the School should have made.

The starting position is section 20 of the Equality Act 2010, the case of Latif confirms that there must be some indication of the broad nature of the adjustment that it is argued should have been made and that a key point is a claimant must establish the duty has arisen. It is not an error of law for a tribunal to consider first what potential reasonable adjustment is being argued, as the Tribunal had done in this case.

Given those circumstances it was again open to the Tribunal to decide that there was no reasonable prospect of the Appellant's case succeeding pursuant to rule 8 of the Tribunal Procedure Rules. The Tribunal applied the correct principles and the decision is not outside the boundary of discretion.

Accordingly the appeal is dismissed.