England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice, Strand, London WC2A 2LL
		22 June 2006.

General

1. This is an appeal from a decision of the Special Educational Needs and Disability Tribunal ("SENDIST") issued on 20 July 2005.
2. JE is the son of the First Defendants and was born on 8 May 1989. The SENDIST concluded that he had been unlawfully discriminated against, as a disabled person, when he was excluded for three days on 19 March 2003. JE was then 13 years old. He had been excluded previously in November 2002, but that exclusion was not in issue. The exclusion in March 2003 was for repeated disruptive behaviour and abusive behaviour towards staff.
3. An earlier decision of the SENDIST, that JE was not a disabled pupil, was quashed by consent by this Court in November 2003, because the parents had not been permitted to present evidence. After a rehearing the SENDIST again decided that JE was not disabled. That decision was also quashed by consent, on 16 March 2005, because the SENDIST had held that an actual diagnosis was required.
4. The third hearing took place on 10 June 2005. In its decision the SENDIST ordered that the School should apologise in writing to JE and that all staff should undergo disability equality training.

The legislation

5. Discrimination by schools was brought within the Disability Discrimination Act 1995 ("the Act") by the Special Educational Needs and Disability Act 2001, which inserted sections 28A to 28L.
6. Section 28A reads, as far as relevant:

"(1) It is unlawful for the body responsible for a school to discriminate against a disabled person –

(a) in the arrangements it makes for determining admission to the school as a pupil;

(b) in the terms on which it offers to admit him to the school as a pupil; or

(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.

(2) It is unlawful for the body responsible for the 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."

7. The Appellant is the body responsible.
8. A "disabled person" is a person who has a disability: section 1(2). Section 1(1) reads:

"Subject to the provisions of Schedule 1, a person has a diasability for the purposes of this Act … if he has a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities".

Schedule 1, paragraph 1 reads

"(1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness".

9. Schedule 1, paragraph 2(1) deals with "Long-term effects" and reads:

"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

… ."

The relevant part of paragraph 4(1) ("Normal day-to-day activities") reads:

"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 –

…

(g) memory or ability to concentrate, learn and understand; …".

10. It is convenient to refer next to section 28C, entitled "Disabled pupils not to be substantially disadvantaged". Section 28C (1) reads:

"The responsible body for a school must take such steps as it is reasonable to take to ensure that –

(a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and

(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".

11. Section 28A refers to three areas of discrimination: admission; provision of education and associated services; and exclusion. The submission is made by Mr.Wilson, Counsel for the Appellant, that the omission of exclusion as a separate category in section 28C(1) is deliberate. Mr.Wolfe, Counsel for the First Respondents, submits that section 28C(1)(b) is wide enough to include matters relating to exclusion.
12. Discrimination is defined in section 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 is justified".

13. Thus section 28B refers to two kinds of discrimination: less favourable treatment under subsection (1) and failure to take reasonable steps under subsection (2), read with section 28C. It was less favourable treatment that was alleged here.
14. Section 28B(6) permits less favourable treatment in selection in certain circumstances, but

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

(8) If, in a case falling within subsection (1) –

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

(b) it fails without justification to comply with that duty,

its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even it if had complied with that duty".

15. Thus, where section 28C(1) requires reasonable steps in relation to exclusion and such steps are without justification not taken, any unfavourable treatment can only be justified if it would still have been justified even if such reasonable steps had been taken.
16. Section 28I provides for the powers of SENDIST. The Tribunal may declare that a person has been discriminated against and, if it does, it may make such order as it considers reasonable in the circumstances. Such an order may be made with a view to obviating or reducing the adverse effect on the person concerned, but there is no power to award compensation.
17. Section 3 provides for the issue of guidance about what matters may be taken into account in determining whether impairment falls within section 1(1). Section 53A provides for the issuing of Codes of Practice giving practical guidance on how to avoid unlawful acts or any other matter relating to the operation of the provisions or in encouraging good practice in the way disabled persons are treated. The Tribunal must take any relevant provision of such a code into account.

The knowledge issue

18. Section 28B (3) and (4) reads as follows:

"(3) In relation to a failure to take a particular step, a responsible body does not discriminate against a person if it shows –

(a) that, at the time in question, it did not know and could not reasonably have been expected to know, that he was disabled; and

(b) that its failure to take the step was attributable to that lack of knowledge.

(4) The taking of a particular step by a responsible body in relation to a person does not amount to less favourable treatment if it shows that at the time in question it did not know, and could not reasonably have been expected to know, that he was disabled".

19. It appeared to me at least arguable that subsection (4) must refer to the taking of steps that amount to discrimination under section 28B(1). In other words, lack of knowledge of disability could, in the context of schools, provide an answer to an allegation of discrimination. I was under the impression that Mr.Wilson was submitting that. Paragraphs 4.13 and 4.22(d) of his skeleton argument appeared to raise the point. I pressed Mr.Wolfe on the point. It seemed to me that since the School's evidence before the SENDIST was that any impairment of JE fell short of what was required by section 1 and Schedule 1, the School was effectively contending that they did not know and could not reasonably have been expected to know of an impairment sufficient for the Act. In his final submissions Mr.Wilson appeared to disclaim such a submission, but after discussion he changed his stance.
20. It seemed to me that, if such a submission was fairly open in the light of the parties' cases, the point should be properly considered. If the point was not fairly open, it should be noted that it had not been argued fully and left open to future decision. In those circumstances, since time was short, I invited written submissions from both Counsel (a) on whether the point was fairly open and (b) on the merits of the submission.

The issues

21. The issues arising for consideration by the Tribunal were these:

(1) Whether JE was disabled at the material time;

(2) Arguably, whether the Appellant knew or could reasonably be expected to know that JE was disabled;

(3) Whether the Appellant treated JE less favourably within the meaning of section 28A(1)(a);

(4) If so, whether less favourable treatment was justified, taking into account section 28B(7);

(5) Whether the Appellant was under a duty to take reasonable steps under section 28C;

(6) Whether the Appellant failed without justification to comply with a duty under section 28C;

(7) Whether the treatment of JE would have been justified even if the Appellant had complied with that duty;

(8) Remedy.

The Appellant's case in this appeal

22. The SENDIST decision is criticised on the following grounds:

(i) That the Tribunal erred in law in concluding that JE had been a disabled person at the material time: issue (1).

(ii) That the Tribunal erred in law by failing to consider, alternatively, whether the Appellant had proved lack of knowledge: issue (2)

(iii) That the Tribunal erred in law in finding unlawful discrimination: issues (3) to (7). Mr.Wilson conceded that even if this was a section 28B(1) claim, section 28C was potentially relevant by virtue of section 28B(8). However, he submitted

(a) that section 28C cannot apply to exclusion: issue (5);

(b) that the Tribunal failed to make a finding under section 28B(8): issue (7).

(iv) The decision as to remedy was disproportionate and perverse: issue (8).

23. A submission that the Appellant had not been permitted to present evidence relating to provision for JE at his present school was not pursued.
24. I bear in mind, in considering the reasons given by the Tribunal, the dicta cited at paragraphs 9 to 11 of the judgment of the Court of Appeal in Meek v. City of Birmingham District Council [1987] IRLR 250 and at paragraphs 13 and 14 of the judgment of Beatson J. in R. v. London Borough of Waltham Forest [2004] ELR 161.

(i) The finding that JE was disabled

25. At the time of the exclusion a diagnosis had been sought as to whether JE was suffering from Attention Deficit Hyperactivity Disorder ("ADHD"). By the time of the hearing before the SENDIST, I was informed, a diagnosis of ADHD had been made and that was common ground, according to Mr.Wolfe. However, it is clear that the SENDIST did not rely on such a diagnosis, although Mr.Wilson appeared at one stage to concede that it could have done so.
26. I turn to the reasons given by the Tribunal in its Decision. The part headed "FACTS" is in truth a mixture of evidence and submissions. The part headed "Tribunal's conclusions, with reasons" is in truth a mixture of evidence, submissions and conclusions. I shall try to summarise the evidence the Tribunal referred to and distil the submissions, on the issue of disablement.
27. The parents had made representations to the Governors that JE had been going through a difficult period and would shortly be "declared as suffering from ADHD". Their solicitor submitted that ADHD constituted a mental impairment. He further submitted:

"[JE] could not multi-task, he could not concentrate for more than 20 minutes, could not finish a task, could not wait his turn, spoke without thinking, was forgetful and easily frustrated. Since 2005 he had been on medication, which had alleviated his difficulties. These were all symptomatic of ADHD. …"

28. JE's father said that the reasons for JE's exclusions or disciplinary action invariably included JE's distracting, disruptive and unco-operative behaviour. I should mention that the parents of JE adopted a responsible and co-operative approach to the school.
29. The Appellant confirmed that incidents with JE escalated during the second half of Year 8 and Year 9. It accepted that JE did speak out of turn, but asserted that in many lessons his behaviour was acceptable. JE was on "School Action Plus" because of his behaviour. The Head Teacher said that JE's behaviour comprised transgression in a series of low-level incidents and that he presented a confusing picture to the school. The Deputy Head Teacher said that although the school realised that JE had social and emotional difficulties (as the Head Teacher agreed), he exhibited behaviours consistent with other children who did not have ADHD. JE was not underachieving in terms of his learning in class. The Head Teacher said that JE had been referred to the Educational Psychologist and the behaviour support team, being aware of "the triad of impairments of ADHD".
30. The report of the Educational Psychologist, Mrs.Rhydderch, stated that JE "did have an internal locus of control, which means that he sees himself as in charge of his own behaviour and responses". A reference to "the initial school report" appears to be a reference to Mrs.Rhydderch's report, which also said:

"[JE] was a polite young man who was willing to please, but who had received a high number of sanctions in his planner due to his behaviour in class".

The report also referred to JE having a much higher number of merits than sanctions which tended to be

"for forgetting books or worksheets and for behaviour such as chatting or shouting in class. In general his parents thought that he talked first and thought later and that he was an individual who was fidgety".

The report confirmed that JE's behaviour had existed for at least 12 months.

31. The Head Teacher accepted that as soon as JE received a diagnosis – presumably referring to a diagnosis of ADHD - he should be treated as disabled. The Deputy Head Teacher said that the school had no formal knowledge of a diagnosis of ADHD.
32. The Appellant's solicitors submitted that no behaviour consistent with the findings of ADHD was evident in JE's primary education. It seems that there were no records from the primary school, although Mrs.Rhydderch reported JE's mother as referring to difficulties experienced by JE in his primary school.
33. The Tribunal was referred to the Guidance on matters to be taken into account in determining questions relating to the definition of disability, issued in 1996 under section 3, although they inaccurately referred to it as the Code of Practice. They quoted passages under the heading "Effects of behaviour":

"A7 Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities. If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability.

A8 In some cases people have such 'coping' strategies which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person's ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment".

34. And under the heading Memory or ability to concentrate, learn or understand:

"C20 Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out … .

…

Examples

It would be reasonable to regard as having a substantial adverse effect:

…

Considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks".

35. The Tribunal accepted that the lack of a formal diagnosis could not preclude a finding of disability. They found that although generally a polite pupil, JE was still unable to follow instructions, sit still and concentrate. They held

"F. [JE's] behaviour resulted in sanctioning and exclusion. Taking the definition of substantial as meaning more than minor or trivial we considered that this was a substantial adverse effect on his ability to carry out normal day-to-day activities".

36. The Tribunal accepted that aspects of JE's behaviour are not uncommon or unusual in mainstream secondary schools and can be characteristic of social or emotional difficulties. They noted that JE had been referred to a behaviour support specialist, "which was not a common strategy and might have alerted the school to the fact that [JE] had a disability".
37. The Tribunal concluded

"On balance and in the light of the above conclusions, we considered there to be sufficient information regarding [JE's] symptoms and behaviour to lead to a conclusion that he was disabled …".

38. Thus there was no finding of ADHD. Although there are references later in the Decision to ADHD, I do not consider that the Tribunal made such a finding. In the absence of such a finding, the First Respondents' case on this issue was not the strongest of cases. The decision is criticised on the basis that there was no analysis as to whether the impairment was physical or mental or, if mental, whether it resulted from a clinically well-recognised illness. However, it is clear that any impairment alleged was mental. And since no mental illness was alleged, the restriction in Schedule 1, paragraph 1(1) was not in point. It is submitted that the Tribunal failed sufficiently to analyse what the mental impairment was and whether it was substantial.
39. The criticisms of the lack of analysis have some force, but in my judgment the Tribunal had sufficient evidence to conclude that JE was at the material time disabled, within the meaning of section 1 and Schedule 1.

(ii) The knowledge issue

40. I am grateful for the written submissions from both Counsel.
41. I have been referred by Mr.Wilson in his written submissions to Halsbury's Laws, volume 5, paragraph 513A, where the authors take the view that both section 28B(3) and (4) provide avenues for a lack of knowledge defence. The Code of Practice at 7.4 onwards agrees. Mr.Wolfe argues that the defence only bites if the responsible body establishes that it would not have taken the step if it had known of the disability. However, this argument ignores the difference between subsections (3) and (4). Subsection (3)(b) specifically makes the effect of the lack of knowledge relevant. There is no equivalent in subsection (4). I therefore do not accept Mr.Wolfe's interpretation.
42. Had I adopted his interpretation, it would clearly have been relevant that the Tribunal noted that the Head Teacher stated that he would have acted in the same way even if he had known of a diagnosis of ADHD. The notes now supplied to me, which were before the Tribunal and to which it referred, of the Action Planning Panel meeting in February 2003 support the contention that the school would have acted no differently.
43. The Tribunal in fact referred to the Code of Practice for Schools, saying:

"J. The Code of Practice for schools states at paragraph 7.8 that 'A responsible body may have difficulty claiming not to have known about a disability if, on the basis of such indicators (ie underachievement and difficult behaviour) it might reasonably have been expected to have known that a pupil was disabled. There is emphasis in Paragraph 7.9 that school (sic) should be proactive in seeking out information".

44. It is reasonably clear from the tenor of what the school were submitting that they were not only disputing that JE was disabled at the material time, but putting forward a case that they did not know and could not reasonably have been expected to know that he was disabled. The Tribunal must have understood that, because they quoted the passages from the Code of Practice. They made no explicit finding, saying only (as I have said) that one matter "perhaps might have alerted the school to the fact that [JE] had a disability". This finding is not the same as saying that the Appellant had failed to prove what they needed to prove under section 28(4).
45. There remains the question whether the Appellant should be permitted to take the point. The Grounds of Appeal do not raise the point. Indeed at paragraph 5(5) of the grounds, the school's knowledge is said (in a different context) to be an irrelevant consideration. That is repeated at paragraph 4.7(3) of Mr.Wilson's skeleton argument. On the other hand paragraph 4.13 of his skeleton argument cites section 28B(4) as providing a defence in law and complaint is made at paragraph 4.22(d), in the context of reasonable steps, that the Tribunal failed to explore the lack of knowledge. Mr.Wolfe in his written submissions contends that the Appellant should not now be permitted to take the point "opportunistically".
46. The issue appears in fact to have been considered by the Tribunal. It has at least now been argued in this appeal. For those reasons, I have thought it proper to deal with the issue and I find the Tribunal's decision defective in law. However, as a matter of discretion, particularly since the Appellant was not in fact arguing that lack of knowledge made a difference, I should not have quashed the decision if this issue stood alone.

(iii) Unlawful discrimination, justification and the section 28C issues

47. It is submitted that the conclusion that the treatment related to the disability was not supported by sufficient reasons.
48. The Tribunal decided (in paragraph M) that "the reason for [JE's] exclusion was justified in terms of the order and discipline within the school, and for the health and safety of other pupils and staff". The Head Teacher had explained that the school needed to "draw a line in the sand" and recounted an incident in which JE had slammed a door in the face of a teacher and spat at her. Section 28B(1)(b) in my view requires a balancing exercise: the responsible body must show that the unfavourable treatment is justified in all the circumstances, including the interests of the school and of the disabled pupil. The Tribunal did not in terms carry out that exercise. Nor did they make any finding under section 28B(7) that the reason was material (although that might be inferred) and substantial. However, since they went on to consider the section 28C duty to take reasonable steps and found that the school failed to do so, the clear implication is that the Appellant failed to justify the unfavourable treatment only by reason of section 28B(8), read with section 28C.
49. The submission of Mr.Wilson was that the omission of explicit reference to exclusion in section 28C(1), in contrast to section 28A, where subsections (1) and (2) closely mirror part of the wording of section 28C(1), but which contains a separate subsection (4) dealing with exclusions. I note that the duty to take steps relates to the making of arrangements for admission, which is only one of the limbs of section 28A(1). Mr.Wolfe submitted that it would be surprising if Parliament intended to omit exclusion from the section 28C duties. Mr.Wilson submitted that the omission of exclusion from section 28C(1) was intentional.
50. There is indeed a certain lack of symmetry in the two sections. However, I have come to the conclusion that the taking of steps "in relation to education" is a sufficiently wide phrase to embrace steps in relation to arrangements in relation to exclusion. Section 28C focuses on ensuring that discrimination will not take place, rather than on decisions that amount to discrimination. Hence the reference back only to section 28A(1)(a), and not to section 28A(1)(b) or(c) or indeed to section 28A(4).
51. I thus agree with the conclusion reached by Mr.James Goudie QC, sitting as a Deputy High Court judge, in Governing Body of PPC v. DS and others [2005] EWHC 1036 (Admin).
52. It is unnecessary to deal with Mr.Wolfe's objection to the raising of this fresh ground.
53. The references by the Tribunal and Counsel to "reasonable adjustments" reflect the language used in similar provisions in the employment field (in section 4A of the Act), although the phrase does not appear in section 28C.
54. The Tribunal referred to a number of steps that the school had taken. There is then reference to the Swansea Guidelines for ADHD, which states that "it is beneficial if members of school staff (including LSAs) attend the LEA ADHD course". Their findings were

"W. The School did not appear to follow these steps. At paragraph 5.17 the Code states 'if reasonable steps of this type could have been taken but were not, it may not be possible for the school to justify the exclusion'. Although we cannot predict its success in this instance, training is a well-recognised and reasonable step for the school to undertake. We would add that making staff 'aware' is not the same as 'training' in order to facilitate an understanding of the pupil's condition.

…

Y. The school failed to take such reasonable steps and as such we find unlawfully discriminated against [JE] in March 2003 by excluding him from school".

Part of the order made was that the school should ensure that all staff underwent disability training from a nationally recognised provider.

55. The reference to "reasonable steps of this type" is a reference to training in relation to autism, as the Tribunal recognised. The Tribunal realised that it was referring to an example.
56. The Tribunal appear to have expected training on ADHD, even in the absence of a finding of ADHD, but made reasonably clear (in paragraph U) that such training was advisable since ADHD was at least suspected.
57. Mr.Wilson criticises the Tribunal for not linking the lack of training to what happened, namely exclusion. However, although the Tribunal did not perhaps spell out fully the advantages of training, I think it is clear that training that led to "an understanding of the pupil's condition" could lead to better handling of his behaviour, rendering the need for disciplinary action less likely and/or leading to better handling of disciplinary action.
58. However, having found that the school failed to take reasonable steps, for the purposes of section 28B(8)(a) and, by implication, that the failure was without justification for the purposes of section 28B(8)(b), they failed to consider the final words of section 28B(8). Since, as I have said, the apparent reason why the school's attempt to justify failed was section 28B(8), they needed to consider whether the unfavourable treatment would have been justified "even if it had complied" with the section 28C duty. I accept that the burden rested on the school, but the Tribunal addressed the issue only obliquely in saying that "we cannot predict [the success of the training] in this instance". As Mr.Wolfe correctly points out, almost never will it be possible to establish that reasonable steps would have prevented exclusion. However, section 28B(8) does not require such proof. It makes it necessary, if there has been a failure to take reasonable steps, to establish that otherwise justified treatment remains justified despite the failure. The test is not one of causation or its absence. I do not think the other decisions cited in this connection assisted me.
59. The Appellant was clearly arguing that the steps that had been taken were in fact reasonable. The Tribunal clearly found a failure. However, in view of their earlier finding about justification, it was essential that they addressed the issue arising from the final words of section 28B(8). They did not do so.

(iv) Remedy

60. Had the Tribunal reached unchallengeable conclusions on the other issues, in my view the choice of remedy could not have been characterised as irrational. It was within their range of permissible choice.

Conclusions

61. For the reasons I have given the Tribunal's decision must be quashed on the section 28B(8) issue. I have indicated that I would not have quashed the decision had the error on the knowledge issue stood alone. It seems to me that on that issue, the judgment is sufficient and no declaration is appropriate.
62. I invited submissions from Counsel on the precise form of order and on costs and the form of order to follow my judgment is now agreed. I questioned whether this case should proceed to yet another hearing, as did Stanley Burnton J. in VK v. Norfolk County Council and the SENDIST [2005] ELR 342 at paragraph 82. It has been agreed that the matter should not be remitted for rehearing.