QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MR H AND MRS H||(CLAIMANT)|
|CHAIR OF THE SPECIAL EDUCATIONAL NEEDS TRIBUNAL||(1ST DEFENDANT)|
|R. SCHOOL||(2ND DEFENDANT)|
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THE FIRST DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED.
MR CLIVE SHELDON (instructed by WEIGHTMAN VIZARDS SOLS, WATER ST, LIVERPOOL L2 OGA) appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
"We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us at the hearing. We also took account of the relevant sections of the Disability Discrimination Act 1995 as amended by the Disability Rights Commission Act 1999 and Special Educational Needs and Discrimination Act 2001 and the Code of Practice for Schools published by the Disability Rights Commission.
A. Section 1 of the DDA defines a disabled person as 'someone who 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'.
B. We agreed with both parties that [M] had a 'cocktail' of difficulties which affected his ability to learn. We did not find, however, that the behavioural problems which resulted from these difficulties were of such a severe nature that they prevented him from making slow but steady academic progress in a mainstream school. In our view, the adverse effects of [M]'s 'impairment' were not substantial. That would not be to say necessarily that they were minor or trivial but we considered it to be a matter of degree and the evidence as to [M]'s academic achievements belied a notion of 'substantial' adverse effect.
C. We had no evidence, either written or oral, which could support the claim that [M] was unable to carry out normal day to day activities. He had developed interests outside the school setting and serious consideration had been given to his continuing his education at Falmouth College.
D. We therefore decided that [M] was not disabled within the meaning of the DDA. In these circumstances, we did not find it necessary to consider the other grounds submitted by Rushmoor School and we determined to strike out the claim."
"44.-(1) The Secretary of the Tribunal shall, at any stage of the proceedings, if the responsible body applies or the president so directs, serve a notice on the parent stating that it appears that the claim should be struck out on one or both of the grounds specified in paragraph (2) or for want of prosecution.
(2) The grounds referred to in paragraph (1) are that-(a) the claim is not, or is no longer, within the jurisdiction of the tribunal;(b) that notice of claim is, or the claim is or has become, scandalous, frivolous or vexatious.(3) The notice under paragraph (1) shall invite the parent to make representations.(4) The tribunal may, after considering any representations duly made by the parent, order that the claim should be struck out on one or both of the grounds specified in paragraph (2) or for want of prosecution.(5) The tribunal may make an order under paragraph (4) without holding a hearing unless the parent requests the opportunity to make oral representations, and if the tribunal holds a hearing it may be held at the beginning of the hearing of the substantive claim."
The statutory background
"1 Meaning of "disability" and "disabled person"
(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.
(2) In this Act "disabled person" means a person who has a disability."
(1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness ..."
"The effect of an impairment is a long-term effect if-
(a) it has lasted at least 12 months;(b) the period for which it lasts is likely to be at least 12 months; or(c) it is likely to last for the rest of the life of the person affected.
(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring shall be disregarded in prescribed circumstances."
"(1) 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 co-ordination;(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."
"(1) The provisions of this part and parts 1 and 3 apply in relation to a person who has had a disability as they apply in relation to a person who has that disability ...."
"(1) The Secretary of State may issue guidance about the matters to be taken into account in determining-
(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or(b) whether such an impairment has a long-term effect."
" ... a person with "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".
Paragraph 6 of the guidance explains:
"6. This means that:
* the person must have an impairment, that is either physical or mental ...
* the impairment must have adverse effects which are substantial ...
* the substantial effects must be long-term ...
* the long-term substantial effects must be adverse effects on normal day-to-day activities."
Each of those phrases is the subject of further elaboration.
" ... a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as "mental handicap"). However, the Act states that it does not include any impairment resulting from or consisting of a mental illness unless that illness is a clinically well-recognised illness."
"A1. The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability that may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial"."
"A2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time that might be expected if the person did not have the impairment."
"A3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way the person might be expected to carry out the activity if he or she did not have the impairment."
"Many impairments will, by their nature, adversely affect a person directly in one of the respects listed in C4 [eg memory or ability to concentrate, learn or understand]. An impairment may also indirectly affect a person in one or more of these respects, and this should be taken into account when assessing whether the impairment falls within the definition. For example:
* medical advice: where a person has been professionally advised to change, limit or refrain from the normal day-to-day activity on account of an impairment or only do it in a certain way or under certain conditions;
* pain or fatigue: where an impairment causes pain or fatigue in performing normal day-to-day activities, so the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time."
"What the Act is concerned with is an impairment on the person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves ...."
"This is a word which is potentially ambiguous. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. Reference to the Guide shows that the word has been used in the latter sense: see paragraph A1.
The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities is clearly more than trivial."
"Whilst it is essential that a tribunal considers matters in the round and makes on overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial, it has to bear in mind that it must concentrate on what the applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial."
The merits of this case:
"He does, therefore, show features of some specific learning difficulties, as evidenced in some of the tests ... He has also had difficulties with coordination of eye movements ... though the most recent [report] that I can find suggests that this has largely improved. He has considerable difficulties with personal organisation and with writing, which although they are probably not sufficiently severe to actually warrant the diagnosis of dispraxia, are certainly tending in this direction.
He has previously had a lot of features of ADHD, a few of which are still present and I think he also has many features of Aspergers Syndrome, though he does not display the full blown picture of even this."
" ... it appears that in the past the ADHD symptoms have been predominant. At the moment, it appears that these have waned somewhat and that the features more typical of Asperger's syndrome have taken over ...
You are quite right that I do consider that [MH] has a lot of features of Asperger's syndrome that we need to continue looking into."
" ... at the moment I would certainly say that Asperger's Syndrome is a better fit for all his various symptoms than other diagnosis and I certainly believe that it should be our working diagnosis at the moment. That is not to say that he does not have symptoms of other disorders. He does still have features of ADHD ...
[MH] also has features of Dyspraxia, which again often goes with Asperger's Syndrome and sometimes with ADHD. The more I hear of [MH]'s difficulties, the more I believe they do fit with a diagnosis of Asperger's Syndrome and I feel we should regard this as his main diagnosis with ADHD and the Dyspraxia still present as subsidiary diagnoses."
"In our view, the adverse effects of [MH]'s 'impairment' were not substantial. That would not be to say necessarily that they were minor or trivial but we consider it to be a matter of degree and the evidence as to [MH]'s academic achievements belied a notion of 'substantial' adverse effect."
Mr Hill is making a very valid point. The history of this is that he went to the DRC, the Disability Rights Commission, and told them his version of events. He was advised to make an application to the Tribunal. He made an application to the Tribunal as a litigant in person. It is a people's tribunal in theory, just as the Employment Tribunal is. It was the school who instructed lawyers. Mr Hill has reacted by seeking equality of arms and getting his own lawyers. He did not 'up the aunty' in this case. The school came out fully equipped with a substantial firm of solicitors and now specialised counsel and he responded. Now it is a rather harsh costs order to make that a private individual who takes on the relative might of an institution, argues the case legally and perfectly properly and wins, is not entitled to his costs even though very plainly under Part 52 the event is his, costs should follow the event under the normal rules and to shuffle off or to somehow conflate the costs of the statutory appeal with the subsequent Tribunal decision----