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
		4th November 2008

Sir George Newman :

1. It is unlawful for a local education authority, when performing its functions under the Education Act 1996 ("the 1996 Act"), to discriminate against a disabled person. So much is clear from the combined effect of the 1996 Act and the Disability Discrimination Act 1995 ("the 1995 Act"). Discrimination will arise if an authority fails to take:

"… such steps as it is reasonable for it to have to take to ensure that … (b) disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled" (section 28G(2)(b)).

But the duty to take such steps does not extend to the provision of "… auxiliary aids or services" (section 28G(3)(b)). Further, a local education authority:

"… also discriminates against a disabled person if –

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

(b) it cannot show that its failure to comply is justified...".

I have stated the position briefly and have avoided reciting all the relevant provisions of the 1995 Act which are arranged in a less than helpful sequence of cross-referencing within sections 28A to 28F.

2. The facts of this case must mirror what is a day-to-day occurrence for local education authorities and parents throughout England and Wales – namely transporting children to school. In this instance D, a disabled boy aged 15, suffering from Asperger's Syndrome, is transported from home to school in a small bus in company with other children, which bus is provided free of charge by Bedfordshire County Council. The County Council are obliged to make this travel arrangement available pursuant to section 508B of the 1996 Act which imposes upon them an obligation to provide:

"… such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made …."

The provision to date has involved a small bus transporting D, in company with other children, to the Samuel Whitbread Community College - not his nearest school but the nearest one which meets his special needs. The travel arrangements for all the children in the bus involve the return journey commencing when ordinary school ends at 3.00 pm. But D has developed a particular interest in the technical aspects of theatrical production and has been encouraged in that pursuit by one of his teachers at the school. As a result, he has been attending the school's "Tech Club", which meets once a week after school, but extends to every night of the week when club members are involved in the technical aspects of a particular theatrical production at the school.

3. Tech Club finishes at around 4.30 pm and D's parents asked Bedfordshire to adjust the time at which the school transport would pick D up from school to allow him to attend Tech Club. It is contended that the need for this adjustment arises for D in a way in which it would not be necessary for a non-disabled pupil attending Tech Club, because non-disabled pupils will be able to make their own way home, without the need for the school transport time to be adjusted, whereas D is not able to make his own way home because of his disability.
4. Accordingly, unless the school transport pick-up time, so far as it affects D, is adjusted on those days when D wishes to attend Tech Club it is said he is placed at a substantial disadvantage compared to his non-disabled peers who are able to attend Tech Club.
5. As a result, his parents asked Bedfordshire County Council to adjust the time of the school transport to allow D to attend Tech Club. Plainly, since there are other children who travel in the bus and normally go home at 3.00 pm who would have no desire to be at school until 4.30 pm, it was clear that to agree to the request would mean the provision by Bedfordshire County Council of a taxi to take D home from school at 4.30 pm. Bedfordshire County Council refused to provide the taxi. As a result, his parents complained to the Special Educational Needs and Disability Tribunal alleging that this failure amounted to a failure to take a reasonable step on the part of Bedfordshire County Council and amounted to an unlawful disability discrimination. On 9^th January 2008, the Tribunal rejected that claim. It is against that decision that this appeal is advanced.

The Statement of Case to the Tribunal

6. By the case presented to the Tribunal, the parents sought to obtain the provision of the transport as well as a determination as to whether the refusal was discriminatory. It was said that the failure to provide it meant that D was unable to attend the Club unless his mother was able to pick him up, but that this was not always possible and it meant that D occasionally missed rehearsals and evening performances. It was stated that D's mother only had the time and finances to collect him from school once a week and that this meant that D was unable to attend other clubs that he would like to attend, such as the badminton club. It was contended that by failing to provide the transport which was needed to enable D to attend after normal school hour activities, the County Council had failed to take reasonable steps "to ensure that [D] was not placed at a substantial disadvantage". It was also maintained that the failure was not reasonable, that it was not justified and that it constituted unlawful discrimination.
7. The distance from home to school is just over 16 miles and it takes approximately 30 to 45 minutes. It cannot be undertaken by public transport without a number of different buses being taken and it would involve a convoluted journey. As to D's father, he is very often unable to transport D to or from school because he suffers from a disability. When D's mother undertakes the journey, she picks up her younger daughter from a school at 3.40 pm but does not have time to drop her off at home and she therefore travels with her daughter to the Samuel Whitbread Community College. She picks up D and arrives back at home at 5.10 pm. It has been said that this means a lot of travel and time for both the mother and her daughter.
8. It was not in dispute before the Tribunal that the provision of transport, on the afternoons when D required it at a later time than the end of normal school, would give rise to extra cost. The parents' contention was that that was a small cost; the County Council's contention was that, having regard to the number of pupils for whom transport was provided, the provision of the transport for D would give rise to a considerable cost because it would give rise also to the need to provide it for others.

The Decision of the Tribunal

9. In the process of setting out the facts, the Tribunal noted the following position set by the parents:

"They requested either direct transport home from the club or reimbursement of their own expenses at the rate of 17p per mile."

One might observe that, on one view of the facts, the practical difficulties faced by the parents in transporting D from school, if it finished at 4.30 pm, were not such as could be overcome even if they were paid their expenses at the rate of 17p per mile. The Tribunal noted that the position of the local authority was that, because D had shared transport, it was not possible to vary his arrangements. Further, that the variation being sought did have financial consequences for the local authority which could well not arise if D was not enjoying shared transport. According to the Tribunal's reasoning, it was stated on behalf of the local authority that an adjustment for after school clubs in D's circumstances:

"… would lead to request by others in a similar position which he calculated might require additional expenditure of around £1 million above the £5.8 million currently spent on transport for pupils with statements. Transport costs for pupils without statements amount to £14.5 million. He said that 1,150 pupils out of 2,800 with statements have transport".

10. It was submitted on behalf of the parents that there were a number of reasonable and appropriate inquiries which could have been made. Inquiries, it was suggested, could have been made to devise a scheme to limit the consequences of an adjustment in D's case. For example, it was suggested that inquiries could be made of parents, schools and children and means testing could be introduced before arrangements were agreed for any individual pupil. It was suggested that inquiries could have been made of the children who shared D's transport as to whether they wished to attend after school clubs or that it might have been possible for D to join transport taking children from other schools into his area. It was recognised that all these things would incur administrative costs or perhaps even involve a substantial amount of time by a manager employed by the local authority.
11. It seems to me that some, if not all, of these submissions may well have been directed to a submission that after school activities are within the meaning of "education and associated services" under the Disability Discrimination Act 1995. It had been the submission of the representative on behalf of the parents that this was the case. The Tribunal dealt with the submission and upheld it, concluding that the provision of school transport is an associated service and the lack of transport to and after school, the subject of this claim, related to "education or associated services". It is now common ground that the conclusion was erroneous. In his written argument presented to this court on behalf of the appellant, counsel, Mr Wolfe, criticised the Tribunal for making this finding. He suggested that their conclusion on this issue had affected the balance of their decision. Having regard to the undoubted difficulties which this legislation gives rise to, I would hesitate to criticise the Tribunal on this score and I commend them for attempting to deal with all the issues which were raised, even those contentions advanced on behalf of the appellant which were irrelevant to the case, but I am inclined to the view that it was not a helpful legal excursion.
12. The Tribunal reached the conclusion that the adjustment in transport which was requested was an "auxiliary aid or service". The reasoning of the Tribunal appears from paragraph (c)(ii) of the decision as follows:-

"It is clear to us, from the information given to us by Bedfordshire, and is common knowledge, that school transport involves specific arrangements for specific pupils and has significant resource implications upon a Local Authority. We can conclude from the information provided by Mr Scott, [the representative for Bedfordshire County Council] reinforced by the suggestions made by Ms Wayment [representative for the parents] as to how adjustments may have been managed, that the organisation of such provision requires considerable planning and detailed attention to each pupil's requirements. We can conclude that the outcome is provision of an auxiliary service to enable a particular pupil to attend school. Whilst this may be non-educational provision which might if a statement of special educational needs has been made be specified in Part 6, and exceptionally Part 3, we are aware that very often such matters are not specified and arrangements are made entirely in accordance with the Local Education Authorities policies.

(c)(iii) We conclude that the provision of transport, whether for educational or non-educational provision is an auxiliary aid and service and, therefore, within the exception to the duties set out in paragraphs 28C(2)(b) and 28G(3)(b) of the DDA."

13. Paragraph (D) of the decision under the heading "Summary" concluded as follows:

"For the reasons stated above we find that Mr and Mrs [D's] claim cannot succeed as it relates to the provision of auxiliary aid and services. Having heard the evidence we have considered whether the issues otherwise support their claim. It is not necessary for us to make a decision but based on what we have heard we consider that the adjustment expected and its implications are such that the reasons underlying Bedfordshire's refusal are material and substantial and the refusal is justified. Whilst Ms Wayment was resourceful in her suggestions for a process leading to changes, we consider that it is appropriate to take into account the significant implication and consequences of departure from a well thought out policy consistent with the duties upon the authority to provide for all its pupils in an efficient and inclusive manner as both a material factor and a substantial reason for this position. At the most basic level we find that payment of mileage to parents is and could not be distinguished from acceptance of a transport obligation and would foreseeably lead to direct arrangements."

Issues for the Court

14. Mr Wolfe submitted that the local authority was simply being asked to provide a service which was already provided in an adjusted way, namely at a different time. His argument is that since the service being provided is pursuant to a function of the local education authority under the Education Act then it could not be suggested that, in the discharge of that function, the local authority were not under a duty to ensure that, by reasonable steps, a disabled child was not discriminated against and that, on a proper analysis, the substance of the statutory function which was being performed could not be altered by a request for an adjustment.
15. By way of further submission, he asserted that an auxiliary aid or service in the context of educational functions must be something auxiliary to those educational functions. For example, medical equipment or a wheelchair.
16. Mr Greatorex for the first respondent, Bedfordshire County Council, submitted that:

(1) the Tribunal did not err in law in concluding that the provision of transport was an "auxiliary aid or service";

(2) in any event, the Tribunal found that any discrimination was justified;

(3) an additional reason for upholding the Tribunal's decision is that there was no basis upon which it could have concluded there was discrimination in any event.

"Auxiliary Aid or Service"

17. Mr Greatorex joined issue with the submission that the request was merely in connection with that which was already being provided. He contended that what was already being provided was transport for four pupils taken by people-carrier to and from school and that a request was being made for individual transport home or reimbursement of expenses. He contended that the fact that something is being done which amounts to the discharge of a function under the 1996 Act does not lead to all provisions under that heading being treated as being in discharge of that function. He drew attention to local education authorities' functions in relation to the provision for children with special educational needs under Part IV of the 1996 Act. The special educational provision in respect of a disabled child could include educational aids and services if they were necessary to meet the child's identified needs. For example, the provision of radio aids and specialist teachers. He relied upon the terms of paragraph 6.20 of the Code of Practice for Schools under Part IV of the Disability Discrimination Act 1995 Act, which states:

"The disability discrimination duties are designed to sit alongside the SEN framework and do not provide an additional route of access to auxiliary aids and services".

As I understood his submission, the Code of Practice was emphasising the structure of the disability provisions, which had excluded auxiliary aids and services from the ambit of the discrimination duties in order to enable the legislation to sit side-by-side, rather than provide an additional means of provision in a case where the SEN framework has not provided for an aid or service. It was not the purpose of the legislation that such a service was to be provided under the discrimination legislation.

18. By parallel reasoning, he submitted there were comprehensive rules for the provision of transport by local education authorities contained in Part IX of the 1996 Act (in particular, Chapter 2 and Schedule 35B) and that the 1995 Act did not provide the appellant with "an additional route of access" to the transport provision they were seeking. To emphasise his submission and its correctness, he made it plain that the disability provisions would still provide protection where, for example, there was a refusal to allow a disabled pupil to travel on a bus provided by a local education authority, because of bad behaviour related to his disability or, for example, where there had been a failure to make a reasonable adjustment, for example, a refusal to allow a disabled child to board a bus first to ensure he got a seat, when he was unable to stand for the duration of the journey due to his disability.

The Legislation

19. The relevant provisions appear in Part IV of the 1995 Act, being amendments introduced by the passing of the Special Educational Needs and Disability Act 2001. The provisions place responsibilities upon "the responsible body for a school" and a "residual duty" upon local education authorities (LEAs). This appeal concerns the character and extent of the duty on an LEA (Bedfordshire County Council) not being the responsible body for the Samuel Whitbread Community College or, at least, not treated in these proceedings as such.
20. The duties on an LEA differ in some respects from those imposed on the responsible body for a school but nevertheless they overlap to a large degree. It was this difficulty which led the Tribunal to determine an issue on "associated aids and services" which was outside the duties owed by an LEA which is not a responsible body for the school in question.
21. The provisions protect a disabled child from discrimination occurring in two possible ways: (1) treating him or her less favourably, for a reason relating to his or her disability, than it treats or would treat someone not disabled (section 28B as it relates to a responsible body and sections 28F and 28G as it relates to an LEA); and, so far as is material to this case, (2) failing to:

"take reasonable steps in discharging any function to ensure that disabled pupils are not placed at a substantial disadvantage in comparison with persons who are not disabled" (section 28G(2)(b)),

which causes detriment and when the failure is not justified (see section 28G, section 28B and sub-paragraphs (2) and (4) of section 28C). For convenience and in the circumstances, I regard it as an essential convenience; it has been described or termed the "reasonable adjustments duty".

The Reasonable Adjustments Duty

22. The duty falls upon the responsible body for a school in such areas as the school is bound to act and it falls upon an LEA in connection with the discharge of its functions under the 1996 Act. Section 508B in Part IX of the 1996 Act concerns LEAs:

"(1)     A local education authority in England must make, in the case of an eligible child in the authority's area to whom subsection (2) applies, such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child.

In this instance, D is an eligible child. The establishment is the Samuel Whitbread Community College. Travel arrangements include "arrangements for the payment of the whole or any part of a person's reasonable travelling expenses" (see section 508B(4)(b)(ii)). See also section 509 which provides at subparagraph (3):

"A local education authority may pay the whole or any part, as they think fit, of the reasonable travelling expenses of any person receiving education—

(a) at a school, or

…

for whose transport no arrangements are made under that subsection."

23. These provisions demonstrate that in any particular case the following questions can arise:

(1) whether the child is or was at a substantial disadvantage in comparison with pupils who are not disabled;

(2) whether or not the provision in connection with his transport from school to his home falls outside the duty imposed by the Act because it constitutes an "auxiliary aid or service";

(3) whether the provision of transport being sought was a provision which it was reasonable for the LEA to provide;

(4) assuming a failure to make a reasonable adjustment, whether or not the failure is or was justified.

24. Mr Greatorex originally submitted that it had not been shown that D had been placed at a substantial disadvantage. Upon reflection, which he gave in the course of preparing for the submissions which were to be served after the close of the hearing, he now no longer maintains the argument in this court. Nevertheless he reserves it as an argument, should the matter be remitted to a tribunal. Further, in his submissions after the end of the hearing, namely his September submissions, he invited the court to consider the issue of justification first because, he submitted, if that was successful then consideration of the more difficult topic of auxiliary aid or service might be avoided. In my judgment, it is not appropriate to leave over the issue of whether or not the Tribunal were correct in determining that this was an auxiliary aid or service, either to the Court of Appeal in this or some other case. In my judgment, I should decide it.

Auxiliary Aid or Service

25. As we have seen, special needs for the disabled and their education are provided for by a statutory regime straddling the Disability Discrimination Act 1995 and the Education Act 1996 (both as amended). An LEA has functions to discharge in connection with special educational needs (Part IV of the 1996 Act) and for the provision of transport (Part IX of the 1996 Act). I have been referred to the Code of Practice for Schools issued in connection with the Disability Discrimination Act 1995 and I agree with the statement in Part IV at paragraph 6.20 and the observation there made as to the structure of the statutory scheme which these statutes create.

"6.20 The special educational needs (SEN) framework is designed to identify, assess and make provision for children's special educational needs. Special educational provisions should include any educational aids and services where these are necessary to meet the child's identified needs. The disability discrimination duties are designed to sit alongside the SEN framework and do not provide an additional route of access to auxiliary aids and services."

26. The Tribunal in this case was alive to the interaction of the special educational needs framework and the disability discrimination framework. In paragraph (c)(ii) the Tribunal stated:

"We conclude that the outcome is provision of an auxiliary service to enable a particular pupil to attend school. Whilst this may be non-educational provision which might if a statement of special educational needs has been made be specified in Part 6, and exceptionally Part 3, we are aware that often such matters are not specified and arrangements are made entirely in accordance with the Local Education Authorities policies.

Ciii We conclude that the provision of transport, whether for educational or non-educational provision is an auxiliary aid and service and, therefore, within the exception to the duties set out in paragraphs 28C(2)(b) and 28G(3)(b) of the DDA."

27. In my judgment, it is plainly wrong that "the provision of transport", which is a function of an LEA pursuant to section 508B of the 1996 Act, "is an auxiliary aid and service". Nor has Mr Greatorex so submitted. It is clear that the travel arrangements made by Bedfordshire County Council for D are made pursuant to its section 508B duty, they are made in order to secure that suitable home to school travel arrangements exist for the purpose of facilitating D's attendance at the Samuel Whitbread Community College. Further, it seems to me that the travel arrangements are arrangements which are made and are bound to be made in order to secure D's attendance at the Samuel Whitbread Community College and they represent the discharge of that duty to D, regardless of the fact that, simultaneously, the arrangements discharge the duty of the LEA to three other children.
28. The Tech Club and other after school club activities, including badminton or such other clubs as exist constitute activities offered at the educational establishment in question which must be available to all, including a disabled child. It seems to me material to ask whether the school could have prevented D attending Tech Club because he was disabled. For example, by not providing disabled children with information in connection with the existence of the Tech Club or, to take another example, by reference to a sport, by not providing suitable transport to the badminton court used by the badminton club where transport to the badminton court was provided for a child who was not disabled. It seems to me that in every case it is essential to properly analyse the statutory context or boundaries of the function for which provision is being made. In my judgment, the Tech Club is part of the educational provision at the Samuel Whitbread Community College. It seems to me from reading paragraphs c ii, iii and D that the Tribunal, having concluded that "transport" was an "associated service", did not adequately address the content of the statutory function under consideration.
29. If it is correct that D could not be prevented by the school from attending Tech Club, the question arises as to whether he could be prevented from attending by the way in which the LEA discharged its transport function and the duty which it owed to him.
30. Paragraph 10.3 of the Code of Practice which gives guidance in connection with the residual duties of an education authority states:

"Authorities should have regard to all their functions under the full range of education legislation to ensure they are not treating disabled pupils less favourably. Such functions may include:

….

Services to pupils (such as weekend or after school leisure and sporting activities, school trips and cultural activities)."

It is not disputed that a local education authority has functions in connection with after school leisure and sporting activities and cultural activities. Nevertheless Mr Greatorex, on behalf of the County Council, has not accepted the correctness of the example of the effect of the provisions, given as example 10.3A in the Code of Practice which states as follows:

"Home-school transport for disabled pupils in a local education authority (LEA) always leaves primary schools at 3.30 pm. The LEA reviews its transport policy when it realises that disabled pupils who are dependent on taxis might be at a substantial disadvantage if they were not able to stay to after-school clubs. The LEA re-negotiates its contract with the taxi firm so that it is possible to specify later departure times. This is likely to be a reasonable adjustment that the LEA should make."

31. Mr Greatorex submitted in relation to this that it only states that pupils "might be at a substantial disadvantage". This submission was made at a time when he was keeping open the point which no longer arises in this court but which he has reserved. Secondly, he said it refers to the renegotiation of contracts, not specific individual provision as is sought in this case. Thirdly he submitted that it accepts that the reasonableness of the adjustment has to be determined in each case.
32. Although at times it seemed that Mr Greatorex relied upon the fact that there was a renegotiation of a contract relating to pupils, as opposed to one pupil, as a distinguishing factor, in my judgment it is necessary to focus upon the impact that the arrangements have in relation to a disabled child. If D had been the only disabled child for whom arrangements had been made, I cannot see how it could have been concluded that what was being asked for was not a reasonable adjustment to enable D to attend after school activities, including the Tech Club, as and when it occurred. This much I suspect Mr Greatorex would have accepted, reserving such argument as could arise to the question of reasonableness and justification.
33. In his September submissions at paragraph 25 Mr Greatorex accepted that D is an eligible child, accepted the duty imposed by section 508B(1) and relied upon the Tribunal's decision as to how the first respondent had discharged that function. He next submitted that the first respondent does not provide any travel for any children in its area to get to or from after school clubs. He next emphasised that the reasonable adjustment which was sought in this case was "either direct transport home from the club or reimbursement of their own expenses at the rate of 17p per mile". He submitted that this request makes it plain that it is an "auxiliary aid or service" because it amounts to the first respondent providing something additional, namely something new. As I understand the submission, something which was not provided by the existing arrangement.
34. Examples have been provided of adjustments which can be made in respect of travel arrangements for a disabled child which would be reasonable and would not amount to an auxiliary aid or service. For example, letting a disabled child board a bus first in order to ensure that he or she gets a seat or altering the route taken by a taxi so as to ensure that a disabled child is collected or dropped off first or last. The plain example of an auxiliary aid or service would be the provision of a wheelchair in order to get the child to the bus. The essence of Mr Greatorex's argument is that auxiliary is used in the Act in contrast to the word "adjustment" and he submits the difference is clear. An "adjustment" is simply an alteration to the way something is done and must be done (if reasonable) but not if it involves the provision of something auxiliary, that is additional.
35. In my judgment, too much emphasis has been placed upon the concept of altering the time of collection of one child in a case where other children are involved. So far as D is concerned, he is provided with transport and he is simply requesting an adjustment to alter the time at which he is picked up on certain afternoons. If that is what he is entitled to, being a disabled child, and the alteration amounts to an adjustment, it does not cease to be an adjustment and become an auxiliary aid or service because the LEA is under an obligation to provide transport for three other children whose needs require them to travel at a different time. It is not necessarily to be regarded as additional service vis-à-vis D, any more than a continuation of the transport function for the other children is to be regarded as an additional transport function.
36. In my judgment, the Tribunal was wrong to conclude that the step requested as a reasonable adjustment amounted to the request for an "auxiliary aid or service".

The reasonableness of the requested adjustment and justification for the failure to make it

37. I accept that it appears from paragraph D (see paragraph 13 above) that the Tribunal had in mind section 28(G) of the 1995 Act because they adopted the test laid down by that section, namely that the reason for the refusal must be "both material to the circumstances of the particular case and substantial". But, that said, the reasons given by the Tribunal founded upon (1) the existence of a policy to provide for all pupils in an efficient and inclusive manner and (2) the "implications and consequences" from departing from the policy. The existence of a well thought out policy will not necessarily constitute a substantial factor. Further care must be taken not to settle upon a policy for all children, including disabled children, which leaves disabled children at a disadvantage. There must be a substantial reason for the failure to make the adjustment in the particular case and in a particular case a departure from the policy may or may not be substantial. In any one case there may be issues as to whether the implication or consequences of departing from the policy can amount to a substantial reason for not adjusting the arrangements when, on one view, the direct consequences are, in financial terms, relatively insubstantial. The reasonableness of the failure to adjust must also be taken into account paying regard to the consequences of the failure in the particular case.

Conclusion

38. I am not satisfied that all the relevant areas of fact have been considered in relation to justification. Nor that the Tribunal had sufficient assistance on the law when considering the issue. Having concluded that the Tribunal erred in holding that the requested "adjustment" was an "auxiliary aid or service" and having regard to their reasons for so concluding, which appear to me to have had some impact on their conclusion on their approach to and conclusion on justification, I am satisfied that this case must be remitted. It will be open to the respondent to raise and develop the issue whether D is or was at a substantial disadvantage by reason of the refusal.
39. Finally, I should simply like to emphasise that my judgment is not to be seen as critical of the Tribunal's conduct or its deliberations. I regard these provisions as complex and difficult. The range of material, much of it in lengthy Codes of Practice, which comment upon a labyrinthine set of interlocking statutory provisions, is particularly challenging. At such hearings the Tribunal needs the best assistance from the parties which can be made available.