Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 32

XA25/15

Lady Smith

Lord Brodie

Lord Malcolm

 

OPINION OF THE COURT

delivered by LADY SMITH

in the appeal

by

J C

Appellant;

against

GORDONSTOUN SCHOOLS LIMITED

Respondents:

Appellant:  Bain QC; Drummond Miller LLP (for the Govan Law Partnership)

Respondents: M Ross; bto Solicitors

 

6 May 2016

Introduction

[1]        When a sixteen year old female boarding school student was found having sex with a male student on a teacher’s desk one evening, the school Principal decided that he had no alternative but to exclude both of them.  The female student had Attention Deficit Hyperactivity Disorder (“ADHD”).  Her mother, the appellant, claimed that her daughter (M) was disabled and that the school’s decision amounted to unlawful discrimination.

[2]        The remedies sought were:

1. A statement that the school discriminated against M.
2. A written apology to M and her family.
3. Training of school staff and alterations to the school’s discipline policy to ensure that no similar incident occurs in the future.

[3]        The Additional Support Needs Tribunal for Scotland (“ASNTS”) had jurisdiction to hear the claim under the Equality Act 2010 (“the 2010 Act”) section 116.  They rejected it.  They were not satisfied that M was disabled.  Accordingly, no question of unlawful discrimination arose.

[4]        The claim was presented under the relevant provisions of the 2010 Act.  As presented to the tribunal, it focussed on M having ADHD which presented with impulsivity, poor attention and concentration, hyperactivity and difficulty in organising her thoughts and actions, the latter being referred to as impaired executive functioning.

[5]        The fact of M having a diagnosis of Feingold Syndrome is also referred to in the claim form but it was not suggested that it gave rise to any separate symptoms that were of relevance to the claim.  None of the expert witnesses purported to be experts on Feingold Syndrome.

 

Background events
[6]        Gordonstoun School is a boarding school in the north of Scotland.  M (d.o.b 15 January 1997) joined the school in September 2011, as a year 10 student, when she was 14 years old.  On her admission, the school were advised that M had ADHD.

[7]        ADHD is, put shortly, a neurodevelopmental disorder that affects those parts of the brain that control attention, activity level and impulse control.  The respondents conceded that it constituted a relevant mental impairment for the purposes of section 6(1)(a) of the 2010 Act.

[8]        During the evening of Monday 4 March 2013, M had sexual intercourse with a male student on a teacher’s desk within the school.  They had been in a relationship for some time.  Their meeting was pre-planned.  It had been organised through an exchange of emails; various emails dating back over more than a year disclosed sexually explicit exchanges having taken place and there were references to prior sexual contact having occurred.  At about 6.45pm, when in a state of undress, they were discovered by a member of staff.

[9]        The member of staff reported the matter and both M and the male student were suspended immediately. The respondents’ Principal was informed of the incident on the morning of 5 March 2013.  Discussion took place within the school throughout that day regarding the appropriate response. 

[10]      On 6 March 2013, the Principal decided that both M and the male student would require to leave the school with immediate effect.  He did not meet with M or with the appellant before reaching his decision.  He wrote to the appellant to advise her of his decision that day.  In his letter, he invited her to withdraw M so as to avoid there being an expulsion on her record and to limit any difficulty in re-establishing her academic future.  He explained:

“The rules about sexual activity at the school could not be clearer and given the relatively public context for this activity on Monday evening, it has been impossible for me to respond in any other way than this.” 

 

[11]      The reference to “rules” was a reference to the respondents’ Code of Conduct. It includes a “Relationships Policy” and a paragraph at p.33 headed “Relationships” includes the following:

“Relationships

………

The School’s views on matters of intimacy are clear: schooldays are not a time when a sexual relationship is the right undertaking for an adolescent. There are personal, moral and religious considerations which weigh heavily here and remain the cornerstones of the School’s policy. Acts of sexual intimacy or instances of students being found in an ostensibly compromising position are always dealt with most severely and may result in expulsion. If students are found having, or having had, sexual intercourse, they are likely to be expelled….”.

 

[12]      The Code explains, at p. 20, that the reasons for imposing the sanction of expulsion include “individual acts of gross misbehaviour which may put a student too far outwith the school’s accepted codes and expectations for him or her to remain in the School”.

[13]      The appellant agreed to withdraw M from the school.

[14]      M’s housemistress told the other students in her house why she had been excluded.  That was standard practice.  There were two reasons for it: the first was to give them a rational explanation for the expulsion since they would inevitably be upset at the loss of a member of their community, and the second was to stop gossip. In her experience, it helped to do so and students were very responsible about the information once matters had been explained to them.

[15]      M was due to sit GCSE exams in the summer term of 2013.  Her sister, who had previously been a student at the school,  wrote to the Principal on 6 March, “begging” him to let M finish the academic year and sit her exams even if that had to be on the basis that “local rustication” was imposed.  In terms of the Code of Conduct, “local rustication” involves the student living outwith the school campus, being allowed to attend lessons in the school but otherwise being excluded from the premises.  He responded on 9 March, rejecting her request.  He explained that the clarity of the rule that had been broken and the notable way in which it had been ignored were such as to lead him to decide as he had done and “the school cannot risk any blurring of what it has set out as its sexual bounds”.  He added that staff would try to support M with work to keep the GCSE process going but she would require to take her exams at another centre.

[16]      4 March 2013 was not the first occasion on which M had had sexual intercourse with a male student; on 16 October 2012, the appellant told the school’s Deputy Principal that M had lost her virginity to a boy at Easter time that year, when she was at his home.  The appellant was concerned that, as she understood it, he was making life difficult for M at school.  She did not suggest that M’s ADHD had played any part in M’s decision to engage in sexual activity at that time.

 

M

[17]      M’s evidence was provided by way of written statement in which she explained that what happened on 4 March was because she was confused, young and stupid.  She confirmed that she and the male student had agreed to meet.  She was unhappy and the relationship made her studies good, and made her feel better and more confident; she wanted to be loved and for a man to hold her.  She did not think she would get caught.  Other girls were excited for her and said “congratulations” after the event.

[18]      Medication was prescribed for M before and during the time she was at the school, with a view to treating her ADHD.  In the written statement, she explained:

“The Strattera made my mood whacko – I had outbursts of crying or being too happy or too sad..”.

 

[19]      “Strattera” was the name given to a drug prescribed for her.

[20]      In a report dated 20 March 2014, Dr Kenneth Aitken, Consultant Clinical Psychologist, opined that M had a behavioural profile consistent with her clinical diagnosis of ADHD.  He advised:

“M demonstrates a range of difficulties which are consistent with her clinical condition and which are not easily rectified by medication.”

 

[21]      Dr Aitken gave oral evidence.  He had not met M until early in 2014 and so was not able to offer direct evidence about her symptoms when at the school.  He offered the view that they would have been more pronounced; that view was not predicated on any particular feature of M’s case but, rather, on general experience of ADHD symptoms tending to ameliorate with age.  Regarding the effects of medication, he said that impulsivity and poor planning and other aspects of ADHD were not controlled by medication.  Rather, strategies would have to be put in place to help the person cope with these matters which would not be addressed by medical interventions.  He also stated that whilst impulsivity could make M do something without thinking of the consequences, it would not preclude her from doing things in a way that involved a degree of premeditation.

[22]      Charles Gibb, Chartered Educational Psychologist assessed M and reported on 28 January 2010, when she was 13 years old.  In summarising his findings he observed:

“There were no indications with me, in the classroom or from what M’s teachers had to say, of effects associated with ADD or ADHD.  M’s work habits and attention control were good.  Other than Feingold’s syndrome there were no indications of conditions or syndromes which can affect young people in education.  M’s overall presentation was within the wide range that is average for her age.”

 

[23]      The appellant gave evidence about M; the tribunal summarised it at para 6.8:

“(The appellant) gave evidence that M had been awarded a personal independence payment due to her personal care needs.  She gave evidence that M needs to be encouraged to wash and needs to have her personal toileting supervised.  She indicated that M was on the contraceptive pill as she would be unable to cope with menstruation.  She gave evidence that M could manage her own medication, with assistance.  She gave evidence that M could probably cook pasta and soup but would also do things like leave a polythene bag on top of the cooker.  She said that M lost her passport two days before going on holiday and could not tell the time accurately or manage her own money.  She gave evidence that M would frequently wander off in shops and has difficulty in planning and executing work.  She felt that M would need a lot of support to live independently as an adult.  In her written statement she says: ‘She has difficulty planning and executing anything other than relatively simple tasks – we always, at home, given (sic) her serial instructions and rarely more than two steps at a time …..it was not until recently that I noticed I still watch her very carefully when crossing the road – my husband still insists on holding her hand as he does so as she could easily misread oncoming traffic and run out.’”

 

[24]      The appellant was not clear about what medication M was able to manage for herself and what was controlled by the school and she commented that M could quite easily forget to take her medication.  She gave no evidence about whether, when M was taking her medication, any impulsivity, hyperactivity, inattention or impairment of executive functioning were ameliorated.

[25]      Much reliance was placed by the appellant on the evidence of Dr Sarah Seth, Consultant Child & Adolescent Psychiatrist.  She first saw M on 19 July 2013 and, after further appointments, provided a report dated 3 October 2013.  When she met her in July 2013, M was not on any medication and her ADHD symptoms were, Dr Seth stated, very apparent in respect that she was easily distracted, forgetful and impulsive within a conversation, restless and fidgety.  In her opinion, it was very likely that M’s ADHD symptoms “would have impacted significantly on her ability to carry out the typical tasks that would be required of her within the school setting.”  In oral evidence, that opinion was moderated.  She said that M “may have had” more difficulties at school and that she was “perhaps” more impaired then.  She had not, however, seen M within the school setting or at any time during the period when M was a student at the school. 

[26]      In a supplementary report dated 17 December 2013, Dr Seth said that she had, by then, seen M on 6 occasions; on some of these she was on ADHD medication and on some she was not on ADHD medication.  Whilst stating that she found M could show great variability in her level of activity and that M’s moods, levels of emotionality and engagement had been extremely variable, she did not relate any of the variations to the effect of medication.  Nor did she offer any evidence about what effect, if any, ADHD medication has on impulsivity, hyperactivity, inattention or impaired executive functioning.

[27]      In her first report, Dr Seth addressed the question of whether or not M’s ADHD contributed to the events of the evening of 4 March.  She explained that she thought that M’s executive functioning was impaired and that that was likely to have contributed.  She pointed to executive functioning being vital to a person’s ability to recognise the significance of unexpected situations and make alternative plans quickly when unusual events arise, and it also serving to inhibit inappropriate behaviours, citing the making of inappropriate comments to a stranger as an example.  She summarised her view on the question as being that it would have been more difficult for M to cope with socially and emotionally complex situations in the 6 months prior to her leaving school.  None of her comments were, however, related specifically to the event itself or the circumstances of M having engaged in planning the event or to her deciding to have sexual intercourse with a male student - one with whom she was in an ongoing and quite longstanding relationship involving intimacy, as disclosed in their email exchanges - at that time and in that place.  Nor did she explain how or why M’s actions ought to be viewed as examples of her having to deal with an unexpected situation, an unusual event or in her failing to refrain from inappropriate behaviour.  That was in circumstances where Dr Seth accepted that many young people who do not have ADHD engage in a range of sexual activity including under-age sexual activity.

[28]      There was also evidence before the tribunal from Bill Colley, an educational consultant.  He provided a report and gave oral evidence, having considered various documents and having been asked to comment, amongst other things, on whether or not M’s disability caused the behaviour that led to her exclusion.  He did not meet M.  He observes, in the summary section of his report, that M’s behaviour was “similar in many respects to behaviour which falls within what might be termed the normal range for young people of her age” and later in the same section, in relation to causation, that it was “not possible to assert that M’s behaviour had no connection with her disability.”

[29]      Mrs Diana Monteith is the school’s Deputy Principal.  She also teaches and is its Director of Pastoral Care, having been in that role since 2010.  She gave evidence which was evidently accepted by the tribunal.  They regarded the appellant’s evidence as being “very much at odds with” Mrs Monteith’s (para 6.9).  The tribunal were impressed with both Mrs Monteith and the Principal, Mr Simon Reid, who also gave evidence.  At para 6.9 of their written reasons, the tribunal refer to the evidence contained in Mrs Monteith’s written statement:

“She points out that the fact that students are residential means that staff know them incredibly well.  Later, she states:  ‘(The appellant) states …that M is unlikely to have had the intellectual capacity or emotional maturity to make informed decisions about her behaviour and the consequences.  I strongly disagree…..My personal observations of M also did not suggest that she lacked the capacity in either respect.’”

 

[30]      The tribunal go on and refer to Mrs Monteith’s oral evidence:

“ …when asked if M had difficulties with day to day tasks Mrs M said:  ‘Apart from struggling with self esteem and anxiety “no”.  M got to lessons, went for five days on an ocean going yacht….”.  She was not aware of M having any difficulty telling the time or with hygiene or personal care. In relation to crossing the road she said: “If she couldn’t cross the road it would be pretty worrying as between her House and school she would have to cross the road.  She would go into town and on cinema leave.  There was never any concern.”

 

[31]      In her oral evidence, Mrs Monteith, having referred to M really struggling with self esteem and social anxiety explained that she felt it was on a spectrum of teenage angst and whilst M was someone who was at the bottom end of that spectrum, she did not consider that M was abnormal in that regard.  She gave evidence about M having had positive relationships with other boys at the school.  Mrs Monteith also referred to M having gone on a Duke of Edinburgh kayaking expedition.  A report card which dealt with her participation on the ocean going yacht stated “M has made an excellent contribution to the voyage…..She quickly settled to life on board and established herself as an energetic and enthusiastic team member…”.

 

The tribunal’s decision

[32]      The tribunal was a three member panel comprising a legally qualified convenor, a member with a social work background and a member who was a retired head teacher. Their decision was unanimous.  They opted to reserve their decision, rather than give it orally at the end of the three day hearing:  see Rule 38 of the Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011.  It was, however, issued promptly, less than three weeks later.  It is written in a clear, accessible style, organised into appropriate sections, and uses short sentences and straightforward language; prolixity is avoided.  The tribunal is to be commended for this.  Rather than rehearse at length the relevant passages from reports and other documents that were incorporated into the evidence, the tribunal refers to them by their document number.  Their written reasons having been issued so soon after the hearing, they were entitled to assume that the evidence was fresh in parties’ minds and that they did not require to rehearse it at length.

[33]      The tribunal concluded that M was not disabled within the meaning of section 6(1) of the 2010 Act.  They were not satisfied that M’s mental impairment had a substantial and long term adverse effect on her ability to carry out normal day to day activities.  They recognised that they required to consider M’s position without taking into account the beneficial effects of any medication.  However, they were unable to make any relevant findings about that matter:

“6.11 We observe that we require to consider the position in respect of M without taking into account the effect of any medication.  There was some evidence about the specific medication M was taking but none about the effects upon M had she not taken that medication.  Thus we are unable to make any findings in fact in that regard.”

 

[34]      Regarding the application of the statutory definition of disability, they concluded:

“6.12 Having considered all of the evidence, it is our view that M cannot be said to have an impairment which substantially and adversely affects her ability to carry out normal day to day activities.  Our overall impression of the evidence from the school was that M went about her normal day to day activities in an entirely normal fashion, as evidenced by the fact that she was able to go on cinema outings without any special considerations, was able to live in a boarding school setting without any special considerations and was able to go on an ocean going voyage and apparently do everything required of her there.  The only aspect in which the school acknowledged any effect on M was in relation to her social skills.  Having considered all of the evidence, we are not satisfied that such effects were substantial, in that, in our assessment of the evidence as a whole, M’s social skills were in the normal range, albeit at the low end of that range.”

 

[35]      The tribunal concluded, accordingly, that there could be no finding of discrimination.  That was sufficient to deal with the claim. However, they continued “in deference to the careful submissions and the clear importance of the matter to the claimant we shall briefly give our views on some other disputed matters.” (para 6.13)

[36]      On causation, they concluded that they were not satisfied that M’s actions arose in consequence of her ADHD:

“ 6.17 The reasons we were not satisfied of the causal link between M’s ADHD and the sexual act that caused her dismissal are:

1. the element of planning. It is clear from the emails between M and her sexual partner that this was not a chance encounter, where impulsivity (a known symptom of ADHD) took over. Rather the couple engaged in a lengthy email correspondence and planned the meeting in the music department. The correspondence also suggests that they planned to engage in some form of sexual behaviour.
2. Mrs M’s evidence was of M having had three relationships with boys while at the school. The school’s view was that these were positive relationships with suitable boys. In our view they demonstrate M’s ability to engage in relationships that were not out of the ordinary; it cannot be said that her ADHD caused her to have poor judgment in dealing with boys as a general rule.
3. (the appellant) was aware that M had had sex with a boy during study leave at his home in Easter 2012. She did not subsequently suggest to the school, when she told them of this or previously, that this act was linked to M’s ADHD. That suggests that she took the view that having sex per se was not a consequence of M’s ADHD.”

 

[37]      In relation to a submission that there was discrimination, the tribunal considered the terms of section 15 of the 2010 Act and concluded:

“6.20 The view of the Tribunal is that, even if we had made a different decision on the matters above we would still not have considered that the effective expulsion of M was discriminatory.  In our view the nature of the conduct, when put in the context of a mixed sex boarding school, had to result in expulsion.  Such was the punishment for every other pupil found having sex in school thus the punishment was proportionate.  The legitimate aim is maintaining standards of discipline and the health, safety and welfare of pupils.”

 

[38]      The tribunal did consider that the Principal should not have made his decision without first giving M and/or the appellant a chance to make representations; that was a simple matter of natural justice.  Also, they considered that greater effort should have been given to ensuring that M’s exams were not affected.  Those criticisms would not, however, have amounted to a finding of discrimination.

[39]      Turning to the school’s application of its disciplinary policy, the tribunal indicated that they would have been minded to conclude that there had been indirect discrimination because the Code of Conduct made no separate provision for pupils with a disability and, in that respect, put such pupils at a disadvantage: see section 19 of the 2010 Act.  Likewise, that lack of provision in the Code of Conduct would, they considered, have amounted to a failure to make a reasonable adjustment: see section 20 of the 2010 Act.

[40]      Regarding M’s housemates having been told the reason for her departure, the tribunal would not have concluded that it was disability related; they accepted that the reason for it was to avoid further rumours and thus for M’s own protection.  That said, they considered it inappropriate.  

 

Relevant law

[41]      A school must not discriminate against a pupil by excluding her from school or subjecting her to any other detriment: 2010 Act section 85(2).  If it does, the pupil or a parent may bring a claim before the ASNTS and the tribunal may, if satisfied that discrimination has occurred, make ‘such order as it thinks fit’ but has no power to award compensation : 2010 Act Sch 17 paras 1, 8 and 9.  The pupil or parent may appeal to this court but only on a point of a law (para 11).

[42]      Discrimination occurs where, because of a protected characteristic, one person treats another less favourably than he treats or would treat others (2010 Act, section 13).  Disability is a protected characteristic (sec 4) and, insofar as relevant, is defined in sec 6 and Sch 1 of the 2010 Act as follows:

“6. Disability

1. A person (P) has a disability if-
   1. P has a physical or mental impairment, and
   2. The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

      …………..

      (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).”

      ………………………………….

      …………………………………

      SCHEDULE 1

      DISABILITY: SUPPLEMENTARY PROVISION

      PART 1

      DETERMINATION OF DISABILITY

      ….

      …..

      Effect of medical treatment

      5.   (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day – to – day activities if-

                  (a) measures are being taken to treat or correct it , and

                  (b) but for that, it would be likely to have that effect.

        (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid…….”

       

      [43]      HM Government’s Office for Disability Issues issued guidance under section 6(5) in May 2011.  It is, of course, not an authoritative statement of the law and does not purport to be such a statement.  It seems to us that the only passage of relevance to the issue that was determinative in the present case is at section B1 where it states:

      “B1 The requirement that an adverse effect on normal day–to - day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people.  A substantial effect is one that is more than a minor or trivial effect.”

       

      [44]      The statutory guidance reflects what was already contained in the authorities. It is well established that the implication of “substantial” in section 6(1)(b) is that the effect requires to be of some substance; something significant and non-trivial : Goodwin v Patent Office [1999] ICR 302; [1999]  IRLR 4.  Whether or not the effect of an impairment is substantial in that sense is a question of fact for the tribunal.  As for what amounts to day–to–day activity, it too is a question of fact for the tribunal to determine, using its basic commonsense:  Vicary v British Telecommunications Plc [1999] IRLR 680.  Thus, the person allegedly discriminated against will usually give evidence before the relevant tribunal about the impairment and its effects on them at the relevant time, that being, essentially, the best evidence.  

      [45]      In Goodwin v Patent Office, an employment tribunal was criticised for having unduly focussed on what the claimant could do whereas they ought to have looked at what he either could not do at all or only do with difficulty; that being so, they had failed to assess the effect that his mental impairment had on his abilities.  Goodwin was a decision of the then President of the Employment Appeal Tribunal, Morison J, and has often been referred to for guidance as to the proper approach when determining whether or not a person is disabled within the meaning of disability discrimination legislation: see p. 308. As we read it, that guidance is essentially that the fact finding tribunal needs to ask whether the person has a physical or mental impairment, whether it affects their ability to carry out normal day- to -day activities, whether any adverse effect is substantial and whether it is long term?  We take no issue with that analysis; it simply works its way through the statutory provision in a logical sequence.  Insofar as the criticism of focussing on what the claimant could do is concerned, we do not read that as rendering irrelevant any evidence about what a claimant can do; rather, it is a matter of bearing in mind that effect cannot properly be assessed unless the fact finding body takes account of all the evidence about what, in the course of normal day– to- day activities, a claimant can and cannot do or can only do with difficulty.

      [46]      Regarding what is sometimes referred to as a “deduced discrimination” claim namely where paragraph 5 of Schedule 1 is relied on, it will normally be essential to lead clear medical evidence to show what the ‘deduced’ effects of the impairment would be if the person did not have the treatment in question:

      “13. ..In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity.  Those seeking to invoke this particularly benign doctrine ….should not readily expect to be indulged by the tribunal of fact.  Ordinarily….one would expect clear medical evidence.”  Woodrup v London Borough of Southwark [2002] EWCA Civ 1716; [2003] IRLR 111, Simon Brown LJ at para 13.

       

      [47]      We agree with those observations.

      [48]      If the tribunal is satisfied that the pupil was disabled, as defined by section 6, consideration of sections 15 and 19 – provisions which are focussed on the more subtle forms of discrimination - may, as in the present case, arise.  Section 15 provides for discrimination arising from disability and section 19 provides for indirect discrimination in the context of the application of a provision, criterion or practice (“PCP”).

      [49]      Section 15 provides:

      “15 (1) A person (A) discriminates against a disabled person (B) if –

2. For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

1. A treats B unfavourably because of something arising in consequence of B’s disability, and
2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim……”

    

   This “arising in consequence of” test does not require the close link between the disability itself and the treatment that is required in a claim of direct discrimination.  However, it does require that the reason for the treatment is something which is shown to have been “a consequence of” the person’s disability.

   [50]      Section 19 makes provision for indirect discrimination in relation to protected characteristics that include disability:

   “19 (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

1. A applies, or would apply, it to persons with whom B does not share the characteristic,
2. it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
3. it puts, or would put, B at that disadvantage, and
4. A cannot show it to be a proportionate means of achieving a legitimate aim.”

 

Disability

Appellant’s submissions

[51]      The contentions for the appellant were that the tribunal had erred in concluding that M was not disabled; they had been too restrictive in their approach contrary to the guidance in Goodwin, they had failed to have regard to the expert evidence, they had failed to have regard to the appellant’s evidence, they had failed to have regard to appropriate guidance, and they had failed to provide a proper analysis together with adequate reasons:  Uprichard v Scottish Ministers 2013 SC (UKSC) 219;  Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345.  Their reasoning was, it was said, incomprehensible.  In particular, they had failed to apply paragraph 5 of Sch 1 to the 2010 Act at all.

[52]      In relation to the effects of her impairment on M, senior counsel referred to the expert evidence and the appellant’s evidence and laid particular emphasis on the passages which referred to M’s executive functioning being impaired.  It all showed, she said, that M had a significant problem and that it clearly had a substantial adverse effect on her day to day functioning.  The tribunal failed to engage with it.  They failed to have regard to the evidence about the difficulties that M was having at school as could be gleaned from the school’s records and from the Principal having conceded in evidence that in the context of sexual activity, M’s ADHD was affecting her on a daily basis.  They failed to make any findings in fact about the effect on M of medical treatment despite there being evidence about it; for that submission she relied on M being off medication when Dr Seth saw her in July 2013 and to the passage in Dr Seth’s evidence when she said she thought that M was perhaps more impaired at school.  She also relied on Dr Aitken’s evidence.  Senior counsel also seemed to suggest that the tribunal ought to have explored the issue themselves but failed to do so.

Respondent’s submissions

[53]      For the respondents, it was contended that the appellant’s complaint amounted to no more than that the tribunal had accepted certain evidence, preferring it to other evidence. The section 6 issue was one of fact and so pre-eminently one for the tribunal.  It had highly relevant expertise since disability issues arise across its jurisdictions.  Its members regularly have to consider the nature of children’s disabilities and what they mean for each child in daily life.  Its decision ought, accordingly, to be accorded appropriate respect: AH (Sudan) v Secretary of State for the Home Department [2008] 1AC 678, Lady Hale at para 30 and Lord Hope at para 19;  WA’s Representative v Highland Council 2009 SC 47 at para 19.  As for reasons, it was important to bear in mind their purpose and maintain a sense of proportion: Uprichard v Scottish Ministers 2013 SC (UKSC) 219 at para 48.  It was also important to bear in mind the context (South Buckinghamshire DC v Porter [2004] 1 WLR 1953, at para 36) which was that the tribunal were under no obligation to provide written reasons at all and, when it came to matters other than the determinative issue of disability, the tribunal expressly stated that their intention was only to “briefly give our views on some other disputed matters” (para 6.13).

[54]      Counsel for the respondents submitted that the tribunal had good reason to decide as they did and did not err in their application of the relevant law.  Mrs Monteith’s evidence, crucially, was a direct account of how M was on a daily basis at the relevant time, unlike the evidence from the appellant and the experts relied on by her.  The Principal had not, contrary to what was suggested, conceded that M was being affected by her ADHD in relation to sexual activity on a daily basis.  The appellant had failed to lead evidence to establish the effects of M’s medication in relation to the aspects of ADHD that were founded on and it was not for the tribunal to adopt an inquisitorial role; it could not just be assumed that she would have been better when taking medication particularly given the indications by Dr Aitken that medication makes no difference to the symptoms relied on.  Contrary to  what was suggested, the tribunal had, in conformity with the Goodwin guidance,  considered adverse effects as well as what M could do; that was clear from their reasons, in particular from para 6.12.  They plainly did not accept the picture of limitation presented by the appellant and they were entitled to take that view.

 

Decision on disability
[55]      It is not the law that every person with a mental impairment is disabled for the purposes of the 2010 Act.  That is only the case if it is established that the impairment in question is at a level which amounts to a substantial and long term adverse effect on normal day- to- day activities.  The onus of doing so lies firmly on the person seeking to advance a claim that there has been a contravention of a part of the Act.  The role of the tribunal is not an inquisitorial one; whilst one of the observations by Morison J in Goodwin was to contrary effect, that was under reference to rules that used to, but are not now, applicable to Employment Tribunals, and subsequent decisions of the Employment Appeal Tribunal have, in any event, corrected that impression.  The onus is on the person claiming and the tribunal is not obliged to make its own enquiries: Joseph v Brighton & Sussex University Hospitals NHS Trust 2015 UKEAT/0001/15/JOJ; Muschett v HM Prison Service [2010] IRLR 451;  Rugamer v Sony Music Entertainment UK Ltd [2002] ICR 381;  Edinburgh Pharmaceutical Processed Ltd & Dr Newlands v Dr A P Lothian UKEATS/0085/05 at para 107.  We, accordingly, reject the suggestion that this tribunal was obliged to do so.  The function of ASNTS was to hear the case that parties chose to put before it, make findings in fact and to decide the case in accordance with the relevant law.  It was not part of its function to inquire into any case which the claimant might have but did not lead evidence about or advance in submission.

[56]      Turning then to our general approach, we agree that this was the decision of an expert tribunal and that caution should be exercised before criticising it; it is, as Lady Hale observed in AH (Sudan) in a passage, part of which was also relied on by this court when considering a decision of the ASNTS in WA’s Representative v Highland Council, “probable that in understanding and applying the law in their specialised field the tribunal will have got it right…….They and they alone are the judges of facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law.”  That is not, of course, to say that a decision on fact may never be interfered with by an appellate court but as recent authoritative discussions explain, it is not for the appellate court to decide the case as if it were itself the first instance fact finder and only rarely will it be open to it to interfere. Those circumstances are, broadly put, where it can be said that the decision was plainly wrong or that the fact finder reached a conclusion that no reasonable judge could have reached or where the findings cannot reasonably be explained: McGraddie v McGraddie  2014 SC(UKSC) 12;  Henderson v Foxworth Investments Ltd  2014 SC (UKSC) 203.  And the assessment of witnesses and the weight to be given to their evidence is very much a matter for the fact finder:  Thomas v Thomas 1947 SC (HL) 45.

[57]      As for reasons, as Lord Reed observed at paragraph 48 of the judgment of the court in Uprichard, it is important to maintain a sense of proportion and not to impose upon decision makers a burden which is unreasonable having regard to the purpose to be served. In that case, the court was considering the extent to which Ministers required to specify their reasons for a planning decision but we agree with counsel for the respondents that the observations can properly be applied to tribunal decisions such as the present. 

[58]      Counsel for the appellant sought to undermine the tribunal’s conclusions on disability and causation.  She did so by making extensive reference to those parts of the evidence which described M’s impairment as involving impulsivity, poor attention and concentration, hyperactivity and impaired executive functioning, to the appellant’s evidence about her view of M’s day- to- day activities and to what Dr Seth and Dr Aitken said they thought M’s symptoms would have been when at school.  The latter, together with Dr Seth’s evidence that M was not on medication when she first saw her was said to be enough for the purposes of paragraph 5 of Schedule 1, and showed that medication had a beneficial effect.  That meant, as we understood the submission, that Mrs Monteith’s evidence should have been discounted and therefore the appellant’s case of disability should have been accepted.  The appellant’s approach thus seemed to be that, having failed before the tribunal on what were, essentially, issues of fact, she sought to have a “second bite at the cherry”.  The function of this court on an appeal such as the present one is, however, confined to determining issues of law.

[59]      We reject that submission.  First, we can understand exactly why the tribunal concluded that they could not take into account the effect of medication.  They had no evidence about the likely effect on M of the particular medication in the particular dose prescribed for her when she was at school.  On the contrary, they had evidence from Dr Aitken that the drugs used for ADHD do not help with the symptoms relied on and from M herself that Strattera did not help her.  Drs Seth and Aitken’s evidence about how M might have been whilst at school was speculative and was, in any event not linked to the taking of medication. 

[60]      Secondly, we note that the matter was not explored at all in the appellant’s written submissions to the tribunal.  All that is said, at paragraph 26, is:

“In terms of Schedule 1, paragraph 5 of the 2010 Act, in assessing the effect of an impairment the effects of any medical treatment are to be disregarded.”

 

[61]      In contrast with other parts of the submission, there is no attempt to link paragraph 26 with any aspect of the evidence led.  That is, in the circumstances, not surprising; no such evidence was led and it was not for the tribunal to go looking for it within that which was led to see if such a case could somehow be constructed or inferred; that was, essentially, the approach of senior counsel for the appellant.  Nor, we would add, was it for the tribunal to seek to explore the issue with witnesses for themselves, particularly given that the appellant was legally represented.  For the reasons to which we have already referred, if the appellant had a case to make about the effect of medical treatment, it was for her to make it.  She did not do so.

[62]      Putting to one side then any question of deduced effect, was the tribunal entitled to prefer the evidence of Mrs Monteith about M’s ability to perform normal day- to- day activities?  We are satisfied that they were plainly entitled to do so.  Contrary to senior counsel for the appellant’s submission, it covered negative aspects as well as what M could do and the fact that she could give evidence about how M was at school at the relevant time – unlike the appellant and unlike the various experts - was, of itself, enough to allow them to give it particular weight.  Further support is lent by the fact that they found Mrs Monteith to be impressive.  Their decision to prefer her evidence was one which they were, in all the circumstances, entitled to make.  As for the evidence of the Principal, we agree with counsel for the respondents that, contrary to the contention for the appellant, it cannot fairly be interpreted as his having conceded that M’s ADHD was affecting her on a daily basis in relation to sexual activity.

[63]      Turning to the matter of reasons, there is no proper basis for the submission that the tribunal failed to provide adequate reasons for their conclusion that M was not disabled. Their reasons are shortly stated but that is, in the circumstances, commendable.  It is wrong to describe them as incomprehensible.  They should be considered in context.  That was, put shortly, as follows.  M had left the school. Readmission was not sought.  The issue was not whether, in principle, ADHD could amount to a disability for the purposes of the 2010 Act – it was whether it did so in M’s case.  The remedies sought were limited.  There being no evidence about the effect on M of the alleged discrimination (evidence about her being upset at having to leave the school was not related to it) neither the declarator nor the apology desiderated could be said to be likely to obviate or reduce an ongoing adverse effect of discrimination (Sch 17 para 5(3)(a) of the 2010 Act).  So far as training is concerned, whilst we do not rule out the possibility of the ASNTS considering it appropriate, in a particular case, to make a recommendation about training, we think it unlikely that it would consider it appropriate to make any order in that respect given the dynamic and ongoing nature of professional and staff training in a school setting.  Further, ASNTS is a tribunal where, under the 2011 Rules, the emphasis is on informality and flexibility, where the norm is that decisions are to be issued promptly without elaborate reasons and there is a duty, in terms of the overriding objective as stated in the rules (Rule 3) to deal with cases in ways which are proportionate.  It is enough that the reasons are intelligible and enable the reader to understand why the tribunal decided as they did and what conclusions were reached on the principal issues in the case.  These reasons serve that function.  Further, as has often been observed, a reasons challenge will only succeed if the aggrieved party can show genuine prejudice by the failure to provide an adequately reasoned decision: see, for example, South Buckinghamshire DC v Porter at para 36.  The appellant did not point to any such prejudice.

[64]      It follows that we are not satisfied that there is any merit in this appeal and we will, accordingly, pronounce an interlocutor refusing it.

[65]      In common with the tribunal we will, however, briefly give our views on some of the other issues that would have required to be determined if M had been found to be disabled. 

 

The claim under section 15 of the 2010 Act

[66]      Contrary to the appellant’s contention, we do not consider it to be helpful, for the purposes of section 15, to speak in terms of looking for “a connection” or “a relationship” between whatever led to the unfavourable treatment and the disability.  The requirement is to apply the words of the statute and they are simple and straightforward.

[67]      So, had the tribunal required to determine whether the respondents discriminated contrary to section 15, they would have required to ask:  what is the unfavourable treatment complained of? (exclusion);  what was it because of ? (having sex in school); and, on the facts found, can it properly be concluded that  having sex was a  consequence of M’s disability?  The causal element in that last part of the analysis is very much a matter for the tribunal to assess.  A similar analysis was adopted by the President of the Employment Appeal Tribunal (Langstaff J) in Basildon & Thurrock NHS Foundation Trust v Weerasinghe  UKEAT/0397/14/RN and we would take no issue with his approach.   

[68]      No doubt there will be cases where debates arise as to whether or not a consequence of a disability is too remote for section 15 to apply, but this is not one of them.  The problem for the appellant would have been that, on the evidence, it was not shown that M having sex on 4 March 2013 was in consequence of her ADHD.  The experts did not, unsurprisingly, say that when a young person with ADHD has sex, that will always be in consequence of their ADHD.  Whether or not that was so in M’s case was not directly addressed by them.  There was evidence that it was not out of the ordinary for young people of her age to be having sex; there was evidence that when she first had sex at Easter 2012 it was not attributed to her ADHD; and, putting the issue at its highest, Mr Colley could only say that he could not assert that there was no connection.  There was no clear evidence that it was a consequence of her ADHD.  The tribunal, at paragraph 6.17, gave cogent reasons for concluding that causation was not established.  We do not consider that, when doing so, they failed to apply the provisions of section 15.  We agree with counsel for the respondent that the appellant’s criticism amounts to saying that poor judgment is an aspect of ADHD, having sex on 4 March 2013 was poor judgment and therefore, causation is established but, plainly, that would not have been enough to establish the requisite causal link.  In the modern world, all too often teenagers exercise poor judgment in sexual matters.  It is widespread.  It is, sadly, a fact of life.  The vast majority do not have ADHD.  Further, M was an adult with full capacity.  Adults do follow their very natural human desires to engage in sexual activity. There would need to have been clear and cogent evidence to support the claim that, in M’s case, this was not ordinary teenage behaviour but was a consequence of her ADHD.  The tribunal’s conclusion was one which we consider, given the state of the evidence, they were entitled to reach.

[69]      Turning to the provisions of section 15(2), the appellant’s contention was that the tribunal had erred in concluding that expulsion was a proportionate response because they had carried out a comparator exercise and they had failed to ask whether it was a proportionate response to the way in which the school rule was broken by M.  The respondent’s contention was that the tribunal had identified a legitimate aim namely the maintenance of standards of discipline and the health, safety and welfare of pupils and whilst they referred to expulsion being the punishment for all pupils found having sex in school, that was not by way of carrying out a comparator exercise; rather it was to emphasise the seriousness with which the respondents regarded such conduct.  We agree with the respondents’ submissions.

[70]      We would add that we do not accept that proportionality required the tribunal to ask whether expulsion could be a proportionate response to the conduct in question.  Rather, when considering the proportionality question, what a tribunal requires to do is to focus on the likely impact on the disabled claimant of the sanction – in this case, the expulsion decision.  The problem for the appellant was that there was no evidence about that. 

 

The claim under section 19 of the 2010 Act
[71]      The tribunal agreed with a submission that the school’s code of conduct as a whole was discriminatory in terms of section 19 because its terms did not expressly allow for the impact that disability might have on a pupil’s behaviour.  It is not clear whether the tribunal would have found that, had they been satisfied that M was disabled, indirect discrimination had taken place; they state only that they “would have been minded to” make the finding. However, we have difficulty in understanding how they could have done so.  First, M would have required to show that the PCP put all pupils who have ADHD at a disadvantage as compared to those who do not (see: section 9(2)), but there was no evidence that all young people with ADHD would have found it more difficult to comply with the rule about sexual relationships than non ADHD pupils.  Secondly, we note that the Code did not state the sanction of expulsion for breach of the rule prohibiting sexual activity in absolute terms; if, in a particular case, the Principal did not, for whatever reason (including disability), consider that expulsion was appropriate, its terms are sufficiently flexible to allow for the choice of a lesser sanction.

Reasonable adjustments (section 20) and whether announcement to M’s housemates was an unlawful detriment (section 15)

[72]      We can deal with these very briefly. 

[73]      The tribunal suggested that a reasonable adjustment could have been to make specific mention of disability in the school’s code of conduct.  However, the suggestion is at a high level of generality.  We would simply observe that any finding that there was a duty to make a reasonable adjustment requires the provisions of section 20 to be met and requires particularity.  We cannot see that, on the evidence, a section 20 duty arose.

[74]      As for the communication to housemates, whilst the tribunal expressed concerns about it, they accepted that it was not connected in any way to M’s disability.  We consider that they were, accordingly, correct to refrain from finding that it amounted to unlawful detriment.

[75]      In these circumstances, we will pronounce an interlocutor refusing the appeal and reserving, meantime, the question of expenses.