Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/493/2010

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Rowland

Attendances:

The appellant father appeared in person.

The Respondent was represented by Ms Jane McCafferty of counsel, instructed by Farrer & Co LLP.

Decision:  I refuse permission to appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 30 October 2009 insofar as permission has not already been given.

I dismiss the appeal.

REASONS FOR DECISION

1. This is a challenge to a decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 30 October 2009, whereby it dismissed a claim by the parents of a child named Oliver that the governing body of Radley College unlawfully discriminated against him in the arrangements it made for determining whether to admit him to the school in a way that was made unlawful under Chapter 1 of Part !V of the Disability Discrimination Act 1995.

The facts

2. Oliver was born in 1994.  In 2001, he was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) associated with Oppositional Defiant Disorder.  From 2003 he attended an independent preparatory school, which knew of the diagnosis, and it had been hoped that he would gain a place at Radley College in 2008.  However, in early 2008, he got into serious trouble at his preparatory school on three separate occasions.  On 23 January 2008, a fixed-term exclusion for four days was imposed for misuse of the school’s computer system.  On 4 February 2008, he was removed from his arranged French lessons following his writing an exercise that was offensive about his teacher.  On 14 February 2008, he was withdrawn from school at the school’s request and this became permanent as an alternative to a formal permanent exclusion.  Two days earlier, in front of a number of other boys, he had announced that he would break one of the windows in the library and proceeded to do so, kicking it until it broke.

3. The preparatory school decided – at Oliver’s father’s behest according to the First-tier Tribunal but that is said by him not to be accurate – not to inform Radley College of the withdrawal of Oliver until Oliver had sat the Radley Schools at the beginning of March and the result was known.  On 8 March 2008, the Warden of Radley College wrote that Oliver was not to be offered a scholarship but that he had secured a place at Radley College without the need to sit the Common Entrance examinations.  Only then was the Warden informed of the withdrawal of Oliver from the preparatory school, in time for a meeting with Oliver and his father on 13 March 2008.  Oliver did not create a good impression at that meeting, but his father afterwards sent further arguments for giving him a chance.  The Warden reflected on those arguments but, on 17 March 2008, he informed Oliver’s father that he was withdrawing the offer of a place.

4. Oliver’s father requested another meeting with the Warden.  This request was initially declined but the Warden did subsequently agree to a second meeting, which took place on 16 May 2008.  Meanwhile, the Warden contacted the preparatory school to check that his understanding of events was correct and he was supplied with some further information.  On 19 May 2008, the Warden confirmed his previous decision to withdraw the offer of a place for Oliver.  Subsequently, Oliver secured a place at another well-known public school.

5. Oliver’s parents brought claims under the Disability Discrimination Act 1995 against the governing bodies of both the preparatory school and Radley College.  The claim against the preparatory school was that there had been unlawful discrimination against Oliver in the fixing of the penalties on 23 January 2008, 4 February 2008 and 14 February 2008 and in the provision of information to Radley College in both March 2008 and May 2008.  The claim against Radley College was that there had been unlawful discrimination against Oliver in the withdrawal of the place at the school, both because he had been less favourably treated than the relevant comparator and because it had failed to make reasonable adjustments to its admissions procedure.

6. The claim against the preparatory school was fixed for hearing on 23 February 2009, when it was adjourned part-heard until 28 April 2009.  The claim against Radley College was originally fixed for hearing on 3 March 2009 but, on 23 February 2009 (which date appears to be a co-incidence) the hearing was postponed until 23 March 2008.  On 28 February 2009, Oliver’s father asked that the Radley case be further postponed to await the conclusion of the case against the preparatory school, in the interests of consistency and because the preparatory school case would be the better case in which to consider “the question of Oliver’s disability”.  The First-tier Tribunal acceded to the request for a postponement and the Radley case was postponed to 14 May 2009. 

7. However, the decision in the preparatory school case still had not been announced when the Radley case was heard.  At the commencement of the hearing of the Radley case, the judge explained that, as Oliver’s father could see, he and one of the other members had sat on the preparatory school case and that, although the hearing in that case had been concluded, the tribunal had not yet made its decision.  In the event, the Radley case also went into a second day, 19 May 2008.  On 5 June 2008, the panel that had heard the preparatory school case met to reach a decision.  The decisions, with their reasons, were both given on 30 October 2008.

8. In the preparatory school case, the First-tier Tribunal found that Oliver was disabled for the purposes of the Disability Discrimination Act 1995 and upheld the claim in respect of the four-day suspension imposed on 4 February 2008 but dismissed it in other respects. 

9. The claim against Radley College, which is the subject of these proceedings, was dismissed on the grounds, first, that, although Oliver was disabled and the offer of a place had been withdrawn for a reason related to his disability, he had not been treated less favourably than would have been a boy who was not disabled who had been withdrawn from his school as a result of the same behaviour that Oliver had exhibited in January and February 2008 and, secondly, that the Respondent had not failed to make reasonable adjustments to the admissions process as had been claimed.

10. In its decision in the present case, the First-tier Tribunal explained its composition –

“In an effort to aid consistency in decision-making, two of the three panel members were the same for both claims.  The fact that one of the specialist panel members was different for each claim has ensured that, whilst closely connected, each claim has been considered purely on the basis of the evidence and submissions in that individual claim.  The two exceptions to this have been the question whether or not Oliver is disabled within the meaning of section 1 of the Disability Discrimination Act 1995 and whether the treatment was for a reason related to his disability.  The first point was more appropriately addressed in the [preparatory school] claim, where the school had extensive knowledge of Oliver and was in a position to challenge this aspect of the claim.  Having reached a conclusion on this point, therefore, it would be incongruous for the Tribunal to reach any contrary decision in this regard on the Radley claim.  The second point dealt with a analysis of the evidence on both sides of the argument relating to specific incidents.  This claim has to be considered on the basis that Radley were not expected nor in  a position to reopen the factual basis upon which [the preparatory school] concluded that the incidents in January and February 2008 deserved the sanctions that were imposed.  The RB’s responsibility in this claim is to look to the future in light of past events, not to act in the guise of an appellate jurisdiction relating to [the preparatory school’s] approach to Oliver.”

11. Oliver’s parents originally sought permission to appeal on ten grounds.  Permission was refused by the First-tier Tribunal but Upper Tribunal Judge Levenson granted permission in respect of one of the grounds, in which it was submitted that the claim against Radley College should have been heard by a different panel form the one that had heard the claim against the preparatory school. saying –

“It is arguable that in these particular circumstances it was a breach of the rules of natural justice and fair procedure for the two appeals (against different schools but in relation to connected matters) not to have been heard either by identically constituted tribunals or by totally differently constituted tribunals.  To have an overlapping but not identical constitution means that some members of the tribunal heard arguments and evidence that had not been heard by all members.”

12. Judge Levenson refused permission in respect of the other grounds.  Oliver’s parents now renew the application for permission in respect of those other grounds, which have been reformulated as six more focused grounds.  It was agreed by the parties that those grounds should be considered at a “rolled-up hearing” at the same time as the substantive appeal.

The substantive appeal – the composition of the First-tier Tribunal

13. In the grounds of appeal, Oliver’s parents submitted that the First-tier Tribunal had set itself a difficult, if not impossible, task in expecting two panel members to erase their knowledge of the claim against the preparatory school from their minds when considering the claim against Radley College.  It was argued that consistency in decision-making would more fairly have been achieved if the hearing of the claim against Radley College had been heard by an entirely differently constituted panel from the one that had heard the preparatory school case, after the decision in the preparatory school case had been handed down.  An allusion was also made to the position of the Warden of Radley College, who was a member of the governing body of the preparatory school, and who, it was submitted, was in the position of advancing diametrically opposed arguments.

14. The Respondent argued that Oliver’s father had waived the right to object to the constitution of the panel and that, in any event, in the circumstances of this case, any potential unfairness had been to the Respondent and not to Oliver’s parents.

15. In reply, Oliver’s father said that he had not waived the right to object to the constitution of the panel because he had not known that he could do so and that the procedure had been unfair to him because he had not realised that he needed to repeat before the panel hearing the claim against Radley College points that he had argued before the other panel as to the preparatory school’s failures.

16. In her argument that Oliver’s parents had waived their right to object to the constitution of the panel, Ms McCafferty, counsel for the Respondent, relied upon Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071; [2004] IRLR 218 but, in my judgment, that authority completely undermines her argument.  Mr Jones was a litigant in person who had brought proceedings against his former employer before an employment tribunal.  At the commencement of proceedings, the chairman made an announcement concerning her husband’s involvement with the employers and she asked Mr Jones whether he was content that she should hear the matter.  He agreed to the hearing continuing before her.  The Court of Appeal held that there had been no actual, presumed or apparent bias and, more importantly for present purposes, that Mr Jones had anyway waived his right to object to her hearing the case.  In relation to waiver, it said –

“32. The questions to be answered are …, first, whether or not Mr Jones acted freely, and, secondly, whether or not he acted in full knowledge of the facts relevant to the decision whether to waive or not.”

17. Ms McCafferty relied upon what the Court of Appeal later said on the second of those questions in support of her proposition that Oliver’s father had full knowledge of the facts relevant to any decision whether to waive or not.  I dare say he did, but the issue in the present appeal is whether Oliver’s father “acted freely”.  Jones seems clearly distinguishable from the present case because, as I understand it, Oliver’s father was not specifically asked whether he objected to the constitution of the panel.  It is one thing for the Respondent, represented as it was by counsel, to be taken implicitly to have waived the right to object by not objecting when the judge announced how the composition of the panel compared with the panel that had heard the preparatory school case.  It is another to say that a litigant in person is to be taken implicitly to have consented when not given the express opportunity to do so that Mr Jones was given.

18. Moreover, the Court of Appeal went on to say –

“33. As to the first question, we are a little uneasy about holding Mr Jones was free to make his election when put to it on the first morning of the hearing.  One cannot underestimate the daunting environment of the courtroom for litigants in person.  Inevitably they are nervous.  Their minds are bound to be totally focused upon that which they have rehearsed.  The unexpected is difficult to deal with.  Mr Harper’s work for DAS and the chairman’s link with him were not matters about which Mr Jones would necessarily have had knowledge before he went on this hearing.  Even though Mr Jones had qualified as a solicitor, he in fact had had very limited advocacy experience and the law of presumed and apparent bias was arcane so far as he was concerned.  Given the way the matter was presented to him, he had little real choice.  He had implicit faith in the tribunal.  It never crossed his mind that they would not be impartial and we venture to think the overwhelming majority of those in his position would have succumbed as he did.  We are left with the nagging doubt that Mr Jones was, and certainly feels that he was, hustled into acquiescing in the case continuing before that tribunal.”

19. The Court then proceeded, in paragraph 35, to give advice for the future, including –

“(v)  The options open to the parties should be explained in detail.  Those options are, of course, to consent to the judge hearing the matter, the consequence being that the parties will thereafter be likely to be held to have lost their right to object.  The other option is to apply to the judge to recuse himself.  The parties should be told it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions.  They should also be told what will happen next.  If the court decides the case can proceed, it will proceed.  If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.

(vi) The parties should always be told that time will be afforded to reflect before electing.  That should be made clear even where both parties are represented.  If there is a litigant in person the better practice may be to rise for five minutes.  …”

20. The Court made it clear that the guidance was “not a checklist, still less a definitive checklist”, but it clearly gives some idea of what it meant by acting “freely”.  It seems to me that Oliver’s father cannot be said to have freely waived any right to object on the morning of the first day of the hearing in this case.  Mr Jones lost his appeal on the waiver issue because, having been made aware that objection was possible, he did not object even when his case had been adjourned part-heard over a period of some weeks.  The present case is different, partly because the period of the adjournment was far shorter but mainly because Oliver’s father had never been made aware that objection was possible.

21. I turn then to the question whether the composition of the panel gave rise to any unfairness as regards Oliver’s parents.

22. There is considerable force in their submission that it would have been better to have had a completely different panel, because there was an illogicality in the First-tier Tribunal’s approach.  Having two of the same members as the panel that had heard the preparatory school case only promoted consistency if they brought with them from the preparatory school case knowledge that they would not anyway have gained in the case against Radley College.  Having a different member was apparently intended to prevent them from using that knowledge.  In my judgment, the panel hearing the Radley appeal ought not to have been composed as it was.

23. However, in the particular circumstances of this case, I accept Ms McCafferty’s submission that the potential unfairness was only to the Respondent who, unlike Oliver’s parents, was not a party to both sets of proceedings.  Despite the Warden of Radley College’s position on the governing body of the preparatory school, the respondents to the two sets of proceedings were separate bodies and had instructed different solicitors and counsel.  Although there was a common factual background to the two cases, the only common issue in dispute was the question whether Oliver was disabled for the purposes of the 1995 Act and that issue was decided in Oliver’s parents’ favour in the preparatory school case.  The Respondent in the present case agreed to accept that finding, but it had not been obliged to do so.  The other questions to be decided in the two cases were quite different.  The claim against Radley College turned on what the Respondent understood, or ought to have understood, about what had happened at the preparatory school and what had passed between Oliver’s father and the Warden.  What had actually happened at the preparatory school and whether it should have happened, were matters that needed to be determined only in the claim against the preparatory school.

24. In these circumstances, I do not see how Oliver’s parents can have been prejudiced by the fact that two members of the panel hearing the claim against Radley College had been involved in the other case.  Rather the reverse.  The Respondent could potentially have been prejudiced by the members’ knowledge of what had actually happened at the preparatory school, when they should have been aware only of what the Respondent had been told about it.  Nor did those two members have any reason to discuss the issues in the Radley case with the other member of the panel in the other case, so as to be influenced by arguments not raised in the Radley case.  This was not a case where the Appellants’ credibility was at stake and an adverse finding in one set of proceedings could have influenced the decision in the other set of proceedings.  Apart from the issue of disability, the live issues in the Radley case simply were not relevant to the other case and vice versa.  Oliver’s father was not inhibited from adducing any evidence that would actually have been relevant.

25. It is not suggested that the judge and members who heard the Radley case were not qualified to sit, only that the involvement of two of them in the other case meant that there was a breach of the rules of natural justice.  Such a challenge can succeed only if there was actually a risk of bias (including presumed or apparent bias) or other unfairness.  I am satisfied that there was no such risk on the facts of this case.  Accordingly, I dismiss the substantive appeal.

The application for permission to appeal on other grounds

26. By section 28A(1) of the Disability Discrimination Act 1995, it was unlawful for the body responsible for a school to discriminate against a disabled person in the arrangements it made for determining admission to the school as a pupil, or in the terms on which it offered to admit him or by refusing or deliberately omitting to accept an application for his admission.  For these purposes, by virtue of section 28B(1), it discriminated against a disabled person if, without justification and for a reason which related to his disability, treated him less favourably than it treated or would have treated others to whom that reason did not apply.  By virtue of section 28B(2), it discriminated against a disabled person if, without justification, it failed to comply with section 28C.  Section 28C(1) provided –

“(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that –

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

(b)  in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with persons who are not disabled.”

27. The First-tier Tribunal took the view that a boy who was not disabled and who had had Oliver’s record of behaviour would not have been admitted to Radley College and it dismissed Oliver’s parents’ challenge under section 28B(1) on that ground.  Oliver’s parents had, however, submitted that a different view would, or should, have been taken had the Warden obtained more information about Oliver which, they submitted, he should have done.  The First-tier Tribunal did not consider that the Warden had failed to gather relevant information.  It observed that Oliver’s parents could have provided more information themselves and said –

“We are satisfied that the combination of open and welcoming atmosphere and the automatic provision of confidential references is a sufficiently proactive and robust process that satisfies the anticipatory duty under the DDA to all those who might actually be admitted to the school.”

28. Ground 1 of the amended grounds for applying for permission to appeal is that the First-tier Tribunal focused only on the Respondent’s evidence-gathering when considering whether reasonable adjustments had been made.  Ground 2 is that it elided the Respondent’s knowledge of Oliver’s disability and the question whether it made reasonable adjustments.  Ground 3 is that it gave insufficient consideration to the adequacy of the Respondent’s information-gathering processes.  Ground 4 is that it failed adequately, if at all, to consider the Respondent’s “broader anticipatory duty”.  Ground 5 is that it wrongly suggested that the Appellants’ other suggested adjustments were irrelevant and Ground 6 is that it failed to consider whether the respondent had had regard to the Code in considering whether a particular adjustment or not.

29. I accept Oliver’s father’s propositions of law and agree that the collection of information is primarily a springboard to a consideration of what other reasonable adjustments may need to be made under section 28C.  However, the point in this case is that the Respondent collected evidence in Oliver’s case in the way it usually did before deciding whether to admit a boy as a pupil.  In those circumstances, the submission that the Respondent ought, once it had discovered that Oliver had been diagnosed with ADHD, to have sought further information amounted to a submission that obtaining further information was a reasonable adjustment to its normal arrangements that it ought to have taken in order to comply with section 28C(1)(a) of the 1995 Act.  In my judgment, the First-tier Tribunal properly dealt with this issue under section 28B(2) and it reached a conclusion it was entitled to reach.  It focused on the Respondent’s evidence-gathering because that was what Oliver’s parents focused on.  No concrete suggestions were made as to other adjustments the Respondent might have been required to make in order to comply with section 28C.  Against that background none of the amended grounds of appeal raises an arguable point of law.

30. In relation to Ground 4, I ought perhaps to say that I accept that there may have been an anticipatory duty that went beyond the duty to gather appropriate evidence.  Ms McCafferty pointed out that section 28C(1)(a) is concerned with the admission of prospective pupils and section 28C(1)(b) is concerned with pupils who are already in a school, but it does seem to me that arrangements for the admission of pupils ought to be such that those concerned are properly trained and are able to consider whether reasonable adjustments could be made within the school to accommodate a disabled prospective pupil should he be admitted.  Thus, the section 28C(1)(b) duty is not wholly irrelevant when considering section 28C(1)(a).  In the present case, though, Oliver’s parents did not complain about the Respondent’s ability to evaluate a disability and consider how a prospective pupil might be accommodated in the school.  They simply argued that the failure of the Respondent to obtain further information made it impossible for it to evaluate Oliver’s disability properly so that it could not consider properly how to accommodate him, the implication being that, on the available evidence, the Respondent’s decision was not unreasonable.  The First-tier Tribunal rejected their submission on the facts of the case.  Once it had found that Oliver had been treated in the same way as a boy without a disability would have been on the evidence the Respondent had before it and that the Respondent’s evidence-gathering had been sufficient to avoid Oliver, as a disabled person, being placed at a substantial disadvantage, there were no further issues to be decided in this particular case.

Mark Rowland

11 February 2011