DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the appellant.
The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 11 December 2009 under file reference 09-500076 involves an error on a point of law. The First-tier Tribunal’s decision is therefore set aside.
The Upper Tribunal is not in a position to re-make the original decision under appeal. It therefore follows that the appellant’s claim under the Disability Discrimination Act 1995 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below and to any further directions by a salaried Tribunal Judge in the Health Education and Social Care Chamber of the First-tier Tribunal.
This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the re-hearing:
(1) The re-hearing will be at an oral hearing.
(2) The new tribunal should not involve any tribunal judge or expert member who was a member of the tribunal which considered this appeal at the hearing on 11 December 2009 or the special educational needs appeal in relation to the same child on 26 January 2009.
(3) The file should be placed before a salaried Tribunal Judge in the Health Education and Social Care Chamber of the First-tier Tribunal to consider whether further Case Management Directions are needed for the re-hearing. These might include (i) inviting submissions on the extent to which the complaint was made within the six-month time limit; (ii) directing that the issue of whether C is disabled within the meaning of section 1 of the 1995 Act should be considered as a preliminary issue. However, any such directions are a matter for the salaried Tribunal Judge’s discretion.
(4) The new tribunal must consider all the relevant evidence afresh and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
With the exception of Directions (2) and (4), these directions are subject to any later directions by a salaried Tribunal Judge in the Health Education and Social Care Chamber of the First-tier Tribunal.
REASONS FOR DECISION
1. The appellant’s appeal to the Upper Tribunal is allowed without the need for an oral hearing. The decision of the of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 11 December 2009 under file reference 09-500076 involves an error on a point of law. The tribunal’s decision is therefore set aside.
2. The Upper Tribunal is not in a position to re-make the decision under appeal. There will need to be a re-hearing before a new First-tier Tribunal.
The background to the appeal
3. The appellant is the mother of a young girl (“C”) who is now aged 12. There appears to be a history of disagreement between the appellant and the relevant local authority over C’s educational provision, resulting in at least two different tribunal decisions. In the first, the mother challenged the local authority’s statement of special educational needs for C. Essentially that dispute was over whether C should be taught at home or in mainstream education. On 26 January 2009 a First-tier Tribunal heard the mother’s appeal; the tribunal amended C’s statement in some respects but agreed with the local authority that mainstream education was the appropriate placement. C’s statement referred to a diagnosis of selective mutism (an anxiety/ communication disorder) and mild specific learning difficulties.
4. The present proceedings arise from the second tribunal. This concerned a claim under the Disability Discrimination Act 1995, first submitted by the mother in April 2009 but apparently not properly registered until 15 June 2009. The claim listed various alleged acts of unlawful discrimination in terms of the provision of education and associated services at school for C and in failing to make reasonable adjustments. The local authority resisted the claim.
The First-tier Tribunal decision
5. The First-tier Tribunal sitting on 11 December 2009 to hear the claim under the Disability Discrimination Act 1995 decided that C was not a disabled person within section 1 of the 1995 Act. It therefore did not need to consider the details of the various allegations.
6. The First-tier Tribunal first noted, under the heading “Facts”, that C had attended the N Special School until April 2008, when she had been withdrawn by her mother. C then remained at home until September 2009, when she started at the L Special School. It also referred to the previous tribunal hearing about C’s statement. None of this appears to be in the least contentious.
7. The First-tier Tribunal then devoted seven paragraphs to “Evidence”. This section was almost wholly devoted to how C had settled in at the L Special School since September 2009. It was reported that both the mother and the school were pleased with C’s progress. For example, the mother confirmed that there were no issues with C’s speech and that C now attended school with enthusiasm.
8. In the final section of its decision, the First-tier Tribunal concluded that C was not disabled within the terms of section 1 of the 1995 Act. The tribunal acknowledged that C was the subject of a statement of her special educational needs (the most recent version dating from June 2009) and summarised the difficulties identified in that statement. In the central passage in its reasoning, the tribunal then continued:
“C. Nevertheless, a very different picture of this child was given to us by [the appellant] since her attendance at [the L Special School]. The evidence given to us by [the appellant], who has direct and first hand knowledge of her daughter, persuaded us that C’s needs are not long term and can be remedied. We focussed on what C could not do and questioned [the appellant] closely on this. She stated that there was nothing she was not engaged in. We accept that C has residual anxiety difficulties and we have considered the cumulative effect of her remaining difficulties but we do not consider that these have a substantial adverse effect which is more than minor or trivial or which is long term.
D. We considered the school activities represented a good picture of C’s ability of involvement in normal day to day activities. We questioned [the appellant] closely about what she could not do and we were reassured by the response that her remaining anxiety was not such as to be more than minor or trivial. We refer to the evidence given by [the appellant], which is detailed in the evidence section above.”
The application to the First-tier Tribunal for permission to appeal
9. The appellant instructed solicitors, who lodged an application to the First-tier Tribunal for permission to appeal on her behalf. The grounds of appeal were three-fold. In summary, they were as follows.
10. The first was that the tribunal proceedings had been procedurally unfair, it being alleged that the tribunal had considered the disability question as a preliminary issue without giving the appellant due notice of its intention to do so.
11. The second was that the tribunal’s conclusion that the effects of C’s impairment were not long term was perverse, given the unchallenged medical evidence before the tribunal.
12. The third was that the tribunal had erred by concentrating on the position since C had started at the L Special School, when the focus should have been on C’s position as at the time of the acts complained of.
13. The tribunal judge who had chaired the First-tier Tribunal in question refused the application for permission to appeal. She stated that the tribunal had indicated on the day that it needed to consider the issue of disability as a preliminary issue and that there was a short recess to allow the parties to put any further submissions on that point.
14. The tribunal judge also reiterated that the tribunal did not accept that C’s needs were long term “either at the time of the complaint or subsequently”. She added that “we considered all of the evidence on which we found that the child was not disabled either at the date of the hearing, when the claim was lodged or six months previously. As at the date of the hearing referring to the incident, the earliest of which can be six months prior to the lodging of the complaint, we found she was not disabled as the claimed disability did not continue for more than 12 months”.
15. In this context I note that there may well be an issue in this case about the “six months rule”. The various acts complained of started on 13 October 2008, nine months before proceedings were initiated, and the last is dated 8 June 2009, a week before the claim was lodged. However, the tribunal had made no reference to the six months issue in its original Decision. I merely reiterate the point made in previous Upper Tribunal decisions that it is unsatisfactory to use the determination refusing permission to appeal against a tribunal decision as a vehicle for expanding on the reasons for the original decision (see e.g. Judge Levenson’s comments in N G-I v Wiltshire County Council (SEN) [2010] UKUT 242 (AAC) at paragraph 14).
The proceedings before the Upper Tribunal
16. The appellant renewed her application for permission to appeal before the Upper Tribunal. The grounds of appeal were settled by Mr David Wolfe of Counsel. I intend no disrespect to Mr Wolfe by saying that the grounds relied upon were essentially the second and third of those advanced in the original application. The first of the original grounds of appeal, relating to procedural unfairness, was not pursued. I granted permission to appeal on the grounds set out by Mr Wolfe.
17. The respondent local authority has filed a response. It resists the appeal. Its position is that the tribunal considered a considerable body of evidence and rightly concluded that C’s difficulties did not give rise to a “substantial adverse effect which is more than minor or trivial or which is long term”. The local authority argues that the tribunal did not simply rely on C’s progress while at the L Special School but considered her position at earlier dates. The local authority reiterates its position that in any event it had not subjected C to any discrimination under the 1995 Act. The appellant’s solicitor has filed a reply on her behalf to that response.
18. The local authority does not seek an oral hearing of the appeal to the Upper Tribunal. The mother does. She wishes to make oral submissions to ensure that the Upper Tribunal is fully aware of her daughter’s condition and resulting difficulties. I am more than satisfied that it is appropriate and proportionate to decide this appeal on the papers. I understand the mother’s wish to make those points in person, but the Upper Tribunal’s jurisdiction is limited to points of law. The place to resolve the facts is at the First-tier Tribunal. She will have her opportunity to make those points at the re-hearing before a different First-tier Tribunal.
The Upper Tribunal’s decision
19. I allow this appeal. The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 11 December 2009 under file reference 09-500076 involves an error on a point of law. The First-tier Tribunal’s decision is therefore set aside. The Upper Tribunal is not in a position to re-make the original decision under appeal. It is remitted to be reheard by a new tribunal subject to the directions above.
Why the First-tier Tribunal erred in law
20. The First-tier Tribunal erred in law because it misapplied the test for deciding whether C was a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995 (see now section 6 of, and Schedule 1 to, the Equality Act 2010).
21. In deciding whether C was a disabled person, the tribunal had to consider if she “has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” within the meaning of section 1(1) of the 1995 Act. In this context it is relevant to note the further clarification of the term “Long-term effects” in paragraph 2(1) and (2) of Schedule 1 to the Act:
“(1) The effect of an impairment is a long-term effect if–
(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected.
(2) Where an impairment ceases to have a substantial adverse effect on a person´s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”
22. It is well established by the case law that disability is assessed at the time of the acts complained of. The reason for this approach was explained (in the workplace context) by Pill L.J. in Richmond Adult Community College v. McDougall [2008] EWCA Civ 4 (at paragraph 24):
“The central purpose of the Act is to prevent discriminatory decisions and to provide sanctions if such decisions are made. Whether an employer has committed such a wrong must, in my judgment, be judged on the basis of the evidence available at the time of the decision complained of.”
24. In a concurring judgment, Rix LJ ruled as follows (at paragraph 35, emphasis added):
“... Liability in this case turned on whether the respondent was a disabled person at the relevant time. That required a determination of the question whether, as at that date, her impairment was ‘likely to recur’. That had to be answered exclusively by reference to evidence relating to the then likelihood of such recurrence. In short, the statute requires a prophecy to be made. It does not permit recourse to evidence as to subsequent events.”
26. As noted above, the First-tier Tribunal focussed almost exclusively on C’s experiences since starting at the L Special School in the autumn of 2009, after the acts complained of. There was no effective engagement with the pre-September 2009 evidence. True, there was some discussion of the statement and the earlier reports, but no evaluation or findings of fact as to whether C was disabled, based on that evidence. Instead, the tribunal’s emphasis on the “very different picture” presented by C’s school experience since starting at the L Special School shows that it relied heavily and arguably exclusively on the more recent history.
27. In doing so the tribunal applied the wrong test. It should have asked itself whether there was evidence of C being disabled for 12 months up to the acts complained of. If not, it should have considered what the likely position was for any prospective period at the date of those acts, on the basis of what the local authority knew or should have known. If that test was not satisfied, then the tribunal would have had to consider where there was evidence that the disability was likely to recur. I therefore agree with the analysis of the appellant’s counsel and solicitor that the tribunal failed in particular to apply the provisions of paragraph 2(1)(a) of Schedule 1 to the 1995 Act and as a result misapplied the test under section 1(1).
The preliminary issue point
28. As indicated above, the appellant’s grounds of appeal to the Upper Tribunal do not repeat the complaint of procedural unfairness in the tribunal taking the disability issue as a preliminary issue on the day. I am therefore not relying on that as a ground for finding that the tribunal erred in law.
31. For the reasons explained above, the decision of the tribunal involves an error of law. The Upper Tribunal therefore allows the appeal and sets aside the decision of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The Upper Tribunal remits the case for re-hearing subject to the directions above.
32. The appellant must understand that the mere fact that this appeal to the Upper Tribunal has succeeded should not in any way be taken as an indication of the prospects of success at the re-hearing before the First-tier Tribunal. The issues of whether or not C is disabled within the statutory definition and, if so, whether or not there was any unlawful discrimination are matters that are entirely at large. They are issues for the expertise of the First-tier Tribunal to determine.
Signed on the original Nicholas Wikeley
on 26 October 2010 Judge of the Upper Tribunal