England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		22 October 2004

1. JAMES GOUDIE QC: This is an appeal pursuant to section 11 of the Tribunals and Inquiries Act 1992 by Mr and Mrs M against the decision of the Special Educational Needs and Disability Tribunal ("the Tribunal") issued on 21st July 2004. The decision concerns their daughter A, born on 17th May 1996. The Tribunal rejected their claim that SW School ("the School") had unlawfully discriminated against A. Neither the School nor the Tribunal have been represented before me, in circumstances set out in a witness statement by a legal officer of the Disability Rights Commission who acts for Mr and Mrs M.
2. The alleged act of discrimination related to the fact that A had not been allowed by the school to transfer automatically into Year 3. The evidence before the Tribunal included an optometrist report and reports from two educational psychologists. The Tribunal's conclusions were as follows:

"A. We concluded that, although A has some specific difficulties, she could not be described as disabled within the meaning of the words as contained in section 1 of the Disability Discrimination Act. Having concluded this, it was not necessary for the Tribunal to hear evidence relating to the other issues in the claim.

B. We were not persuaded that A's vision difficulties were such that they have substantial and long-term effects on her ability to carry out normal day-to-day activities. The report from Caroline Hurst had contained details regarding these. However, we also heard that A now wears glasses and that these have helped to overcome these problems. The wearing of glasses is specifically exempt from the definition. The fact and the difficulties being overcome would appear to suggest that they are not substantial and long term.

C. We were not persuaded that A's motor difficulties are such that they could be described as a disability. The reports from the DDAT centre have contained results of tests. However, the report had contained no comparison to other children or details of the tests carried out. A appears able to function independently at school and with self-help skills although is slightly clumsy. We were not persuaded that the effects of these are such that they have a substantial and long-term effect of the management of day-to-day activities.

D. A had been assessed as having an IQ of 80. This would place her within the average range. The level of functioning in academic skills is not so delayed that she would not be able to access a mainstream school curriculum.

E. There was no Speech or Language therapist report in the papers to show how delayed A's language skills are. Although she has been receiving Speech and Language Therapy, there was no assessment produced to show why this is required. We did not therefore conclude that these difficulties would have a substantial or long-term effect on her ability to manage day-to-day activities.

F. Overall, there has been no medical diagnosis or statements contained in the reports to say that A should be considered as disabled within the meaning of Disability Discrimination Act 1995. We did not feel that either individually or collectively the difficulties were such that they have a long-term or substantial effect on her ability to manage normal day-to-day activities. We therefore concluded that the claim should be dismissed."

3. The grounds of challenge can be summarised as follows. First, SENDIST misdirected itself in law by treating the question of whether A's difficulties were substantial as meaning that they were of significant proportions rather than that they were more than trivial; alternatively, unlawfully came to a perverse conclusion on the point; alternatively, unlawfully failed to explain the approach it was taking.
4. Secondly, SENDIST unlawfully failed to reach a clear and consistent finding on whether A's vision difficulties were overcome by her glasses, or whether the glasses merely helped to overcome her problems.
5. Thirdly, in so far as SENDIST concluded that glasses overcame A's vision difficulties, it acted unlawfully by acting in ignorance of the material and established fact, namely that her glasses did not overcome the vision difficulties; and/or reaching a decision without any basis in the evidence; and/or rejected expert evidence without any evidence on which to do so and without giving the appellant an opportunity to deal with it; and/or without giving any proper reasons for doing so.
6. Fourth, SENDIST impermissibly took into account what it found to be A's ability "to function independently at school" and then misdirected itself in considering whether her mobility difficulties had a substantial and long-term effect on the management of day-to-day activities.
7. Fifthly, if SENDIST did in fact ask itself the right question and concluded that A's mobility difficulties did not have such an effect, it did so in ignorance of an established fact, namely that they did, and/or reached a perverse decision on the point.
8. Sixthly, SENDIST erred in its approach to the issue of A's speech difficulties.
9. Section 1(1) of the Disability Discrimination Act 1995 defines a person with a disability as follows:

"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."

10. By paragraph 4(1) of Schedule 1 to the Disability Discrimination Act:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following:

(a) mobility

(b) manual dexterity

(c) physical coordination;

(d) continence

(e) ability to lift, carry or otherwise move everyday objects,

(f) speech hearing or eyesight

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger."

11. According to the Employment Appeal Tribunal in Goodwin Patent Office [1999] ICR 302, first, tribunals should adopt a purposive approach to the definition of disability, making reference to the guidance of the Secretary of State and to the Codes of Practice, Disability Discrimination, issued in 1996; and secondly, tribunals should assess the evidence by reference to the different conditions of impairment, adverse effect, substantiality and long-term effect. The adverse effect condition will be satisfied if the Tribunal were satisfied that one of the capacities to which I just referred in Schedule 1, paragraph 4(1) of the Act, had been affected, and the fact that a person could carry out activities did not mean that his disability to carry them out had not been impaired. Whether an adverse effect was substantial had to be assessed by considering whether the effect of the impairment on a person's ability to carry out normal day-to-day activities was more than minor or trivial.
12. The issue, submits Mr David Wolfe, on behalf of Mr and Mrs M, is not what the person can do, but rather the fact and extent of their inability to carry out the specified day-to-day activities. He refers to the decision of the Employment Appeal Tribunal in College of Ripon and York St John v Hobbs [2002] IRLR 185, as approved by the Court of Appeal in McNicol v Balfour Beatty [2002] ICR 1498, and to the decisions of Leveson J in H v R School and the SENDIST [2004] EWHC 981 (Admin) and in A v Governing Body of Hob Moor School and the SENDIST [2004] EWHC 2165 (Admin).
13. Mr Wolfe accepts that, given paragraph 6 of Schedule 1 to the Disability Discrimination Act, if A's impaired vision was correctible by spectacles or contact lenses it would not amount to an impairment for the purposes of section 1(1) of the Act, and submits that thus the issue for the Tribunal in relation to section 1 and the question of disability was whether A's impairments individually or together, and in the case of her sight, to an extent not corrected by her glasses, affected in a more than minor or trivial way her mobility, manual dexterity, physical coordination, ability to lift, carry or otherwise move everyday objects, speech or eyesight.
14. I accept that submission. I also accept the submission that the approach to the duty to give reasons is set out by Beatson J in L v Waltham Forest and the SENDIST [2003] EWHC 2907 (Admin) at paragraphs 13 and 14 as follows in material respect:

"13. ... The statutory requirement is that reasons be given in summary form. ...

14. Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. ... What was necessary was that the aggrieved party should be able to identify the basis of the decision. Secondly, a specialist tribunal, such as the SENDIST, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it... Thirdly, mere recitation of evidence is no substitute for giving reasons... Fourthly, and linked to the second point, where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it."

15. In all the three areas of A's visual difficulties, her mobility difficulties and her speech difficulties there is sufficient in Mr Wolfe's skeleton argument to persuade me that the Tribunal acted unlawfully, that their decision should be quashed and that the claim should be remitted for reconsideration by a differently constituted tribunal.
16. Given the nature of the order I am making, I think the less I say about the present evidence and the facts the better. The Tribunal must properly apply the test of 'substantial' as meaning more than minor or trivial. If they are minded to reject uncontradicted expert evidence they must indicate that and provide an opportunity for response. They must give reasons which grapple with the substantial points and explain the basis of the decision. If they lack basic information, they should take steps to obtain it. They must determine whether or not A is disabled, and if they find that she is, go on to consider whether or not she has been discriminated against on account of her disability and other remaining issues.
17. MR WOLFE: My Lord, I am grateful. In the light of that I would ask for an order that the appeal be allowed, that this order be quashed and the matter be remitted back to a fresh tribunal for reconsideration. I do not ask for any costs order. But I also do ask for a non-identification order under the Children and Young Persons Act, which I think would have the effect of calling the child 'A' and the school probably 'SW School' or 'a School'.
18. MR JAMES GOUDIE: Yes. Is there anything you would like to say, Dr Sturdy?
19. DR STURDY: I am just wondering when this is going to stop?
20. MR JAMES GOUDIE: I can understand that. It is always unfortunate when, through no fault of the parties, the Tribunal does go wrong and the matter has to be looked at afresh by another tribunal. That is an unhappy state of affairs, and of course the court is astute to have well in mind that appeals from the Tribunal are only in point of law. But as one has seen from the authorities, there are occasions when the Tribunal does go wrong in law and when it does need to go back to another tribunal. But where that will take one of course it is not for me to speculate.
21. So appeal allowed; remitted to fresh tribunal; anonymity order - so A and SW; and no order for costs.