Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/2716/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Rowland

 

Mr David Wolfe QC (instructed by the Equality and Human Rights Commission) appeared for the Appellant.

 

Mr David Lawson (instructed by Stone King LLP) appeared for the Respondent.

 

 

Decision:  The claimant’s appeal is dismissed.

 

 

REASONS FOR DECISION

 

1. This is an appeal, brought with permission granted by Upper Tribunal Judge Wikeley, against a decision of the First-tier Tribunal dated 27 September 2010, whereby it dismissed a claim the Appellant and her husband had brought under section 28I(1) of the Disability Discrimination Act 1995 (“the 1995 Act”) against the governing body of Tonbridge Grammar School.  Tonbridge Grammar School was a maintained school at the time but has since become an academy.  For reasons I gave in ML v Tonbridge Grammar School [2012] UKUT 283 (AAC), Kent County Council has been substituted as the respondent to this appeal.  However, it is still the governing body of the school that is alleged to have been guilty of unlawful discrimination and Tonbridge Grammar School has the conduct of the case on behalf of Kent County Council.  The change in the title of the proceedings has therefore not made much, if any, practical difference.  Mr Clive Rawlings of counsel, instructed by Kent County Council, attended the hearing with a watching brief but Mr David Lawson, instructed by the School’s solicitors, presented the Council’s case.  He had represented the School before the First-tier Tribunal.  Mr David Wolfe QC represented the Appellant before me, having represented both claimants before the First-tier Tribunal.  I am very grateful to both Mr Wolfe and Mr Lawson for the clarity of their submissions.

 

2. The claimants’ daughter is clearly academically gifted but she has the misfortune to suffer from mild dyslexia, which was first identified in 2005 when she was in Year 10.  After GCSEs, she opted to take the International Baccalaureate Diploma, rather than ‘A’ levels, but she struggled with the workload and showed symptoms of anxiety and depression.  A letter from a general practitioner, dated 29 April 2009 and cited by the First-tier Tribunal, said that “[d]ue to her dyslexia she takes longer to process information and her depression also has a negative impact on her speed of processing information, slowing her down even further.” 

 

3. She took her International Baccalaureate examinations in May 2009.  The schedule of examinations threw up one particularly heavy day for her.  On 18 May 2009, she was scheduled to take four examinations, two in the morning of one and a half hours each and two in the afternoon of forty-five minutes and one hour respectively.  This followed a period of five days without examinations but she also had an examination on the following morning.  The Appellant sought both extra time for the examinations and a rescheduling so that one of the examinations due to take place on 18 May 2009 would take place on the following day.

 

4. It is for the International Baccalaureate Organisation (IBO), rather than a parent or a school, to decide whether or not such special arrangements should be allowed for a particular candidate, bearing in mind both the need to “achieve equity among candidates with special assessment needs” and that “special arrangements requested for a candidate must not give that candidate an advantage in any assessment component”. 

 

5. The IBO publishes guidance entitled Candidates with special assessment needs.  This makes it clear that it is for a school to ask for any special arrangements.  Such requests must be made by the Diploma Programme coordinator (“IB coordinator”) or the head of school.  Material passages in relation to additional time and rest periods in the 2007 version of the document are –

 

“4.1 Additional time

 

Additional time may be authorized for written examinations and for certain activities connected to internal assessment according to the candidate’s assessed needs. For written examinations, additional time is normally restricted to 15 minutes for each hour of the examination (that is, 25% more time). For periods of less than one hour the additional time should be given on a pro rata basis. More than 15 minutes per hour may be authorized for candidates with a severe condition or where the special arrangements place a greater demand on time.

 

When requesting additional time, it is important to bear in mind that too much time may be tiring for a candidate and, therefore, counterproductive. Similarly, more time spent on a task does not necessarily improve the quality of the response given by a candidate.

 

An additional time allowance is not the same as a rest period: during a rest period the candidate is not permitted to continue working.

 

…

.

4.1.6   If a candidate’s condition, or the nature of the special arrangement(s), is such that more than 15 minutes per hour is required, this should be clearly stated and justified in the application for special arrangements. There should be no assumption that more than 15 minutes per hour will be authorized.

 

4.1.7 If a candidate’s personal examination timetable is such that, with additional time and/or rest periods, more than six and a half hours of examinations would take place in one day, rescheduling should be requested. All regulations and procedures that normally apply to rescheduling examinations must be adhered to. Information on rescheduling can be found in the Handbook of procedures for the Diploma Programme.

 

…

 

 

4.2 Rest periods

 

During a rest period, the candidate is not permitted to read, respond to the examination paper or to write notes of any kind. A rest period is distinct from “additional time” during which the candidate may continue working.

 

4.2.1   The amount of rest time required, or whether more than one rest period is necessary, depends on the candidate’s circumstances. Ten minutes per hour is normally authorized.

 

4.2.2   Candidates receiving rest periods may also receive additional time. See section 4.1.

 

4.2.3   During the rest period in an examination, the candidate’s script and examination paper must be covered or turned face down on the desk/table.

 

4.2.4   The candidate may leave the examination room for part or all of the rest period, but must be supervised to ensure that the security of the examination is maintained. There must be no communication with, or disturbance to, other candidates.

 

4.2.5   If a candidate’s personal examination timetable is such that, with rest periods and/or additional time, more than six and a half hours of examinations would take place in one day, rescheduling should be requested. All regulations and procedures that normally apply to rescheduling examinations must be adhered to. Information on rescheduling can be found in the Handbook of procedures for the Diploma Programme.”

 

6. The information in the Handbook clearly states that, where a person has two subjects each with two examinations on the same day –

 

“Rescheduling will not be authorized, unless the total time for the examinations exceeds six and a half hours.”

 

7. It appears to be common ground, and the First-tier Tribunal accepted, that that reference to six and a half hours was applicable in 2007 and would have been six hours in 2009, at least for candidates with special assessment needs.  I do not know why that is so since one version of the Handbook in the bundle before the First-tier Tribunal appears to have been that for the May and November 2009 examination sessions (see page 358) and it and the current version on the IBO’s website in February 2013 both refer to six and a half hours (see paragraph E5.2 in the 2009 version (page 380 of the First-tier Tribunal’s bundle) and paragraph A9.3.2 of the current version), but it is possible that there has been an amendment to paragraph 4.2.5 of the guidance entitled Candidates with special assessment needs.

 

8. In any event, the School asked for extra time for the claimants’ daughter for her examinations on 18 May 2009, which was granted at the usual rate of 15 extra minutes per hour.  That took her total examination time to five hours and fifty-seven minutes on that day.  The school did not ask for rest periods or rescheduling.

 

9. Section 28A(2) of the 1995 Act, which remains the relevant legislation in this case despite the coming into force of the Equality Act 2010, provides that –

 

“It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.”

 

Section 28B(2) provides that –

 

“For the purposes of section 28A, a responsible body … discriminates against a disabled person if –

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

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

 

Section 28C(1)(b) provides that –

 

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

(a)  …; and

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

 

10. The original claim under the 1995 Act raised a considerable number of issues but they have been whittled away and this appeal is concerned solely with the School’s failure to ask for rescheduling.  Moreover, an appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 lies only on a point of law.  Unless flawed by an error of law, the First-tier Tribunal’s findings of fact cannot be impeached.  It is therefore necessary to consider in detail the First-tier Tribunal’s decision on the question of the rescheduling of the examinations in the context of the arguments addressed to it.

 

11. It was not in dispute that the claimants’ daughter was “disabled” or that the arrangements made by the School in connection with the examinations were “associated services”.  The “significant disadvantage” identified in Mr Wolfe’s written submissions to the First-tier Tribunal was the “additional stress and pressure”, over and above that suffered by other pupils, that it was submitted that she suffered by reason of her disability because she had to sit so many examinations on one day.  As to “reasonable steps”, he submitted that the First-tier Tribunal –

 

“… is not concerned with whether what the school did (or did not) do more generally in response to [the claimants’ daughter’s] disabilities was reasonable.  The issue is simply whether the school took the steps which the Tribunal consider it was reasonable for it to have to take to address the substantial disadvantage.”

 

12. He made a number of specific observations as to things it was said that the school had not done.  On 9 February 2009, it was said that the head teacher had said that the school would ask for rescheduling, which would mean the claimants’ daughter staying with a member of staff overnight, although she did not think the request would be successful.  No such request was made, and it was said that the school subsequently stated that no such request could be made unless the examination time exceeded six and a half hours in one day.  It was also said that, at a meeting on 24 April 2009, neither the head teacher nor the IB coordinator appeared to be aware of the IBO’s rules or that changes could be made and no mention was made of “rest periods”.  The first reference by the school to the IBO’s Handbook was on 15 May 2009 and no mention was then made to the document relating to Candidates with special assessment needs.  It was also argued that, had “rest periods” been applied for and granted at the rate of ten minutes per hour, the total examination time would have increased to the extent that rescheduling would clearly have been accepted by IBO.

 

13. Against that background, he submitted that the First-tier Tribunal should conclude that reasonable steps to ensure that the claimants’ daughter was not placed under additional stress and pressure had not been taken because the school had failed to apply for rescheduling in the mistaken belief that an application was bound to be unsuccessful, that it had failed to plan ahead so as to be able to consider applying for additional extra time before it was too late to do so and it had failed to consider applying for rest periods.

 

14. Mr Lawson, on the other hand, argued that, although the question of what was reasonable had to be determined objectively, the assessment was not an abstract one.  He pointed out that the school had asked for and secured not just extra time but also “special consideration”, which meant that the IBO was given information about the claimants’ daughter so that it could make appropriate adjustments to her grades.  That was a reasonable step if the “substantial disadvantage” was put in terms of academic advantage.  He also pointed out that it had been explained to the claimants’ daughter that she could choose not to sit one or more of the examinations on 18 May 2009 and could either accept a grade awarded on work already submitted or sit the examination(s) in November, which was an alternative reasonable step if the “substantial disadvantage” was put in terms of the additional stress and pressure.  The school also made minor changes to the starting times of examinations and allowing extra time between examinations, as the IBO allowed it to do without obtaining specific authorisation.  The IB coordinator had attended an 8-day residential course on her role and had 5 years of experience, having made numerous applications for special arrangements and she had previously been an A level examinations officer.  She had made the applications she considered appropriate and, he submitted, it could not be a reasonable step to make inappropriate applications.

 

15. The First-tier Tribunal took the view that the “mistake” as to the number of hours of examination time that would trigger rescheduling did not materially affect the outcome, since the total examination time was in any event under six hours, albeit marginally.  It said –

 

 “30. …  We accept the evidence of the RB that the IBO is strict about the application of the Regulations, which we fully understand.

 

31. In our view, there is an additional point that would militate against the success of any application to reschedule. [The claimants’ daughter] was already the beneficiary of additional time to accommodate her dyslexia and a concessionary approach to all her examinations, not just those scheduled for 18 May, to reflect her depressive illness. We do not consider that each possible concession is to be considered in a vacuum without taking account of the cumulative effect of granting more than one to any individual candidate. The Baccalaureate is an internationally recognised qualification and the provisions in the regulations, and their complexity, are designed to ensure that wherever in the world the candidates are they are competing on as level a playing field as it is possible to engineer. The credibility and reliability of the qualification relies on drawing a balance between redressing disadvantage (of whatever form) and not giving any specific candidate or class of candidates an unfair or disproportionate advantage. Any concessions, even for those with disabilities, have to be considered in this context.

 

32. [The IB coordinator] told us that it was highly unusual for a student to achieve simultaneously the two separate types of concessions that [the claimant’s daughter] received. Given her position as coordinator over a number of years, we accept that evidence and consider it as indicative of the fact that, even without rescheduling, [the claimants’ daughter] was already in a favourable position. It seems to us highly improbable therefore that, even if an application had been made for rescheduling, the IBO would have granted it in addition to the two existing forms of concession. The addition of rescheduling to the concessions would, in our opinion, have put [the claimant’s daughter] in such an advantageous position as to create for her an unfair or disproportionate advantage over other candidates. The IBO would have been alive to this point and this may explain why, when asked by [the IB coordinator] what else could be done for [the claimant’s daughter], the suggestion of rescheduling was not made to her by the IBO office in Cardiff.

 

33. It follows from these findings that we are not satisfied that [the claimants] have established, on the balance of probabilities, that [their daughter] was in fact placed at a substantial disadvantage when measured in the context set out above. We do not seek, in any way, to belittle the level of stress and anxiety being experienced by [the claimants’ daughter] at the time. It is simply that taking all of the evidence as a whole, bearing in mind the extent of concessions already in place, we do not consider that she has been shown to have been placed at a substantial disadvantage vis-à-vis other candidates, whether in the UK or abroad. However, even if there was a degree of residual disadvantage that was more than merely minor or trivial, we are equally not satisfied that the RB failed to make reasonable adjustments. We do not subscribe to the argument that the RB should simply make any possible application and leave it to the IBO to decide what to do. Such an argument ignores the division of responsibility within the regulations as between examination centre and the central IBO and the significant degree of autonomy ascribed to examination centres to make certain concessions through, essentially, self-certification. Such a system relies on the training and integrity of the coordinator to grant concessions only according to the detailed regulations. We note specifically in this regard that [the claimants’ daughter] was given 25% additional time for her examinations on the basis of the RB's internal screening and without any formal, independent assessment — indeed the evidence was that if more than 25% extra time was necessary a formal assessment would be required, to which it is clear [the claimants’ daughter] was resistant. That the RB could grant [the claimants’ daughter] 25% additional time in these circumstances is a measure of the trust placed by the IBO in the integrity of its examination centre coordinators and, in our view, such trust would be devalued if coordinators were seen to be trying to gain every possible advantage for candidates in their centres, rather than acting strictly within all the technicalities of the regulations.”

 

16. Mr Wolfe submits that the First-tier Tribunal misidentified the “substantial disadvantage” to which it was claimed the claimants’ daughter had been subjected.  I am inclined to accept that submission but I do not regard that as a fatal flaw in this particular case.  The First-tier Tribunal did not explicitly identify the claimed “substantial disadvantage” at all.  However, what the First-tier Tribunal did say, in paragraph 29 of the statement of reasons, was that it was argued on the claimants’ behalf that their daughter “was put at a substantial disadvantage by having to take four examinations on 18 May”.  That identified the immediate cause of the substantial disadvantage rather than the substantial disadvantage itself.  It was not, as I understand it, disputed that, as a result of her depression, the claimant’s daughter suffered more stress and pressure than other pupils (although there was an issue as to how far this was a relevant disadvantage).  It is, therefore, implicit in its finding in paragraph 33 of the statement of reasons that the claimant had not suffered any substantial disadvantage that the First-tier Tribunal viewed the claimed substantial disadvantage, not as the additional stress and pressure suffered by the claimant’s daughter in itself, but as the effect that would have had on her examination results.  That was too narrow an approach.  A person may be placed at a substantial disadvantage for the purpose of the 1995 Act if he or she is required to suffer more stress and pressure than other persons in order to secure the same results.  However, that error was immaterial if the First-tier Tribunal did not err in law in first finding it “highly improbable” that the IBO would have rescheduled the examinations even if asked and then relying on that finding.

 

17. Mr Wolfe submits that that finding is flawed because the First-tier Tribunal did not explain why it had rejected evidence from the Appellant that she had telephoned the IBO and been told that it would at least have considered such a request and would likely have granted it.   I do not consider it plausible that the First-tier Tribunal overlooked that evidence.  Nor am I satisfied that the First-tier Tribunal failed adequately to explain why it did not accept it or, at least, did not accept that it was accurate that the IBO would likely have agreed to rescheduling.  It clearly preferred to rely on the experience of the IB coordinator, as it was entitled to do, particularly against the background of the written guidance published by the IBO.  There was no direct evidence from the IBO before the First-tier Tribunal itself that contradicted the IB coordinator; nor is there any such evidence before me.  I therefore accept Mr Lawson’s submission on this issue.

 

18. I accept Mr Wolfe’s submission – not, I think, disputed by Mr Lawson – that the IBO might have been obliged by the 1995 Act to consider varying what otherwise would have been a strict rule in order to avoid discrimination against a person with a disability, although presumably sections 19 to 21 would have been applicable rather than the provisions applicable to this case.  However, it does not follow either that it was bound to reschedule the examinations in this case or that the school was bound to ask it to do so.

 

19. There are at least two bases upon which the IBO could properly have decided not to reschedule the examinations.  The first is that making that adjustment would have given the claimants’ daughter an advantage by comparison with other candidates and that the more equitable approach having regard to the imperative of maintaining confidence in the qualification would have been to give her special consideration in the marking, as it did.  That approach would involve compensating for a disadvantage rather than removing it but the need to provide a level playing field for candidates could amount to a justification for doing so.  The second is that rescheduling, while removing one disadvantage, would have given rise to an equivalent or worse disadvantage by requiring the candidate to spend a night away from home immediately before the rescheduled examination.  That would be a justification for retaining the original timetable that gave rise to the equal or lesser disadvantage.

 

20. The first of those considerations was pre-eminently a matter for the IBO but the IB coordinator was not obliged to ask for rescheduling if an application was bound, in practice, to fail on that ground.  The second of those considerations was one on which an IB coordinator would probably be better placed to form a view than the IBO, because a school would know the candidate.  I do not consider that an IB coordinator is required to ask the IBO to reschedule examinations if that is not in the candidate’s best interests and the IBO ought, on an objective view of the case, therefore to reject the application, even though there may be a possibility that it might not.  It is true that the question in the event of there being a claim under the 1995 Act or its successor would be whether the application would have actually been a bad one rather than whether it was reasonably thought to be so at the time, so that, in a case of possible doubt, caution would favour making the application.  Nonetheless, an IB coordinator is not a mere advocate for a parent and the IBO is entitled to expect him or her to exercise a degree of professional judgment before making an application, particularly as it may be appropriate to consider a package of adjustments as in Burke v College of Law [2012] EWCA Civ 37.  I do not mean to suggest that an IB coordinator should not apply for rescheduling or other special arrangements merely because he or she considers that the application will probably fail, provided that he or she considers that there is a good case to be made.  But he or she is not required to make a clearly bad application.  The word “reasonable” in section 28C(1) clearly refers to the reasonableness of requiring the responsible body to take the identified step.  

 

21. The First-tier Tribunal focussed on the first of the two possible considerations that I have identified.  It is true that the First-tier Tribunal first said in paragraph 32 of the statement of reasons only that it was “highly improbable” that an application for rescheduling would fail, but in the following sentence it said that “[t]he addition of rescheduling to the concessions would, in our opinion, have put [the claimant’s daughter] in such an advantageous position as to create for her an unfair or disproportionate advantage over other candidates.”.  The clear implication was that the First-tier Tribunal considered that an application for rescheduling ought to fail, given the other adjustments already accepted.  That amounts to a finding that, if the IBO considered such an application properly, the application was bound to fail and it is therefore clear that, in previously saying that it was “highly improbable” that an application would succeed, the First-tier Tribunal was only allowing for the possibility of the IBO making what it would have regarded as a misjudgement.

 

22. Mr Wolfe submitted that the First-tier Tribunal had no evidence upon which to base its judgment that the claimants’ daughter would have been placed in an advantageous position had an application for rescheduling been granted.  However, members of the First-tier Tribunal include people with substantial experience of educational matters and I do not accept that the relevant panel in this case was not entitled to make the judgment it did.

 

23. On the basis of the First-tier Tribunal’s findings, it inevitably follows that the IB coordinator was right in her view that an application for rescheduling was bound to fail.  Mr Wolfe pointed to the head teacher having said that an application would be made and also criticised the IB coordinator’s reasons for believing that an application was bound to fail.  As to the former, it seems clear that the head teacher left the matter to the IB coordinator, who sought special consideration in marking instead and the worst that can be said is that the school may not have appreciated that a promise by the head teacher was not being fulfilled and may have failed to explain as early as it could have done why it had reconsidered what application should be made.  No criticism has been made of the application for special consideration in marking.  As to the IB coordinator’s contemporaneous reasoning, since the test is objective, it does not matter if her reasoning was flawed, as long as it did not lead to the school failing to take a reasonable step. 

 

24. For all these reasons, I am satisfied that the First-tier Tribunal did not materially err in law in finding that Tonbridge Grammar School did not fail to take reasonable steps to ensure that the claimant’s daughter did not suffer a substantial disadvantage due to her disability.  I therefore dismiss this appeal.

 

 

 

 

 

 

Mark Rowland

1 March 2013