Gayhurst Community School v ER (SEN) [2013] UKUT 558 (AAC) (10 November 2013)
Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference SE204/12/00043,
made on 8 February 2013, did not involve the making of an error on a point of
law.
Reasons
for Decision
A.
History and background
1.
This case concerns an incident when O returned to his classroom at
school after lunch. There are different versions of what occurred, given by O,
the teacher involved and others who witnessed the incident. I am not sure,
despite reading the tribunal’s decision several times, that it ever made
findings of fact on precisely what happened. For the purposes of this appeal,
it is sufficient to set out the barest essentials. O was born in 2001 and the
incident occurred in February 2012. He is on the autistic spectrum but is high
functioning. He finds transitions between activities difficult, especially in
the afternoons On returning to class after lunch, neither the class teacher nor
his usual support worker was present. O wanted to leave the room, but a teacher
from another class who was present refused. This led to an altercation between
O and the teacher. As a result O was excluded from the school for three days. His
parent claimed that this was discrimination in that the school had failed to
take account of his disability and to make appropriate provision for assisting
him to cope at that stage of the day without his usual support.
2.
The school did not take part in the proceedings before the First-tier
Tribunal for the simple reason that it was not aware of them. The notice of the
proceedings was properly addressed to the Chair of the Governing Body and
delivered to the school. The school maintained a separate mail box for the
Chair, who was not aware that it existed. In the result, the tribunal did not
have any documents, evidence or argument on behalf of the school.
B.
The legislation
3.
The tribunal’s jurisdiction was governed by paragraph 3 of Schedule 17
to the Equality Act 2010:
Jurisdiction
3. A claim that a
responsible body has contravened Chapter 1 of Part 6 because of a person’s
disability may be made to the Tribunal by the person’s parent.
‘The Tribunal’ means the First-tier Tribunal.
4.
Section 85 is in Chapter 1 of Part 6:
85 Pupils: admission and
treatment, etc
…
(2) The responsible body of
such a school must not discriminate against a pupil-
…
(e) by excluding the pupil
from the school;
…
(6) A duty to make reasonable
adjustments applies to the responsible body of such a school.
(7) In relation to England and Wales, this section applies to-
(a) a school maintained by a
local authority; …
5.
The tribunal said that Mrs R made her claim under section 15:
15 Discrimination arising
from disability
(1) A person (A) discriminates
against a disabled person (B) if—
(a) A
treats B unfavourably because of something arising in consequence of B's
disability, and
(b) A
cannot show that the treatment is a proportionate means of achieving a
legitimate aim.
(2) Subsection (1) does not
apply if A shows that A did not know, and could not reasonably have been
expected to know, that B had the disability.
6.
The tribunal referred to without quoting, and appears to have applied,
section 19:
19 Indirect discrimination
(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.
(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—
(a) A
applies, or would apply, it to persons with whom B does not share the
characteristic,
(b) 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,
(c) it
puts, or would put, B at that disadvantage, and
(d) A
cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected
characteristics are—
age;
disability;
gender reassignment;
marriage and civil partnership;
race;
religion or belief;
sex;
sexual orientation.
7.
It also quoted section 20, which provides:
20 Duty to make adjustments
(1) Where this Act imposes a
duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule
apply; and for those purposes, a person on whom the duty is imposed is referred
to as A.
(2) The duty comprises the
following three requirements.
(3) The first requirement is
a requirement, where a provision, criterion or practice of A's puts a disabled
person at a substantial disadvantage in relation to a relevant matter in
comparison with persons who are not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.
8.
The tribunal’s powers are contained in paragraph 5 of Schedule 17:
Powers
5(1) This paragraph applies if
the Tribunal finds that the contravention has occurred.
(2) The Tribunal may make
such order as it thinks fit.
(3) The power under
sub-paragraph (2)-
(a) may, in particular, be
exercised with a view to obviating or reducing the adverse effect on the person
of any matter to which the claim relates;
(b) does not include power to
order the payment of compensation.
C.
The grounds of appeal
9.
I do not accept that the tribunal went wrong in law in respect of any of
the four grounds of appeal put forward by the school. I explain why below. In
those circumstances, I have generally not set out the parent’s response or the
school’s reply.
The failure to attend the
proceedings
10. The
first ground of appeal is that the school was not aware of the proceedings and,
therefore, was absent from the hearing. The school has a separate mail box for
the Chair of the Governing Body who was not aware that it existed.
Consequently, the school was not aware of the proceedings. The parents did not
mention them to the School and the tribunal did not contact the school by
telephone. The school was never put on notice. Although it does not say so in
as many words, this is an argument that natural justice requires the decision
to be set aside.
11. I
do not accept this ground of appeal. The school was properly notified of the
proceedings by delivery to the correct address. What went wrong was a result of
the school’s internal arrangements. The parents were not responsible for
notifying the school, nor was the tribunal required to telephone the school.
The fact that the notice did not reach its recipient is entirely the
responsibility of the school. There was no breach of natural justice.
12. This
issue was the subject of an application for the tribunal to set aside its own
decision on the ground of procedural irregularity. The tribunal refused and I
refused permission to appeal against that decision, which the tribunal was
entitled to make.
13. For
the record, I do not accept that the school acted wilfully, as the parent has
alleged. There is no evidence to support that allegation.
The school’s policy on exclusion
14. The
second ground of appeal is that the tribunal, not having seen the school’s
exclusion policy, could not properly find that it had applied it in the same
way as it would have to a child without O’s disability. Nor could it properly
conclude that the exclusion disadvantaged and disproportionately affected O.
The school says that a longer exclusion would have been imposed on another
child.
15. I
do not accept this ground of appeal. This conclusion is linked to my decision
on the first ground. The school was responsible for the fact that its policy
was not before the tribunal. It is no good blaming the parents for that. The
tribunal relied on its knowledge of the general practice in schools. It was
entitled to draw sensible inferences. The Court of Appeal in Crewe Services
and Investment Corporation v Silk (2000) 79 P&CR 500 encouraged county
court judges to rely on common sense inferences rather than require expensive
expert evidence. Robert Walker LJ (at 509) referred to:
. . . the
practicalities of the disposal of business in the County Court. County Court
judges constantly have to deal with cases that are inadequately prepared and
presented, either as to the facts or as to the law (or both), and they must not
be discouraged from doing their best to reach a fair and sensible result on
inadequate materials. Moreover there is a strong public interest in encouraging
litigants not to incur the expense of a proliferation of expert witnesses (in
this case, actuaries and valuers have been mentioned) unless the additional
expense of time and money can be justified.
What is true of the County Court is probably more true of
the First-tier Tribunal sitting with specialist members.
Reasonable adjustments
16. The
third ground of appeal is that the school had made reasonable adjustments to
cope with O’s behaviour. Contrary to the tribunal’s finding, the teacher
involved knew him well. The strategy for coping with O’s behaviour was revised
after this incident and there were no further complaints that he had used
inappropriate behaviour.
17. I
do not accept this ground of appeal. As with the second ground, this decision
is linked to my decision on the first ground. The tribunal cannot be blamed for
not having the school’s evidence. On the evidence available, it was entitled to
decide that the school had not made reasonable adjustments.
18. The
language in which the tribunal expressed that decision was not entirely
appropriate. Instead of using the language of section 20(3), which speaks of
avoiding the disadvantage, the tribunal used the language of paragraph 5(3)(a)
of Schedule 17 and spoke of reducing the disadvantage. That could be read as
confusing right (section 20) and remedy (paragraph 5). I do not so read it.
Taking the substance of the reasons as a whole, I am satisfied that the
tribunal did apply the correct test under section 20, which it had set out
verbatim. This was merely an infelicitous choice of words by the judge in
writing the reasons.
The impact on others
19. The
final ground of appeal is that the impact of the incident on the teachers and
staff involved has not been considered. The school had a duty of care to
children, parents and staff as well as to O.
20. I
do not accept this ground of appeal. It is right that the school owes duties to
teachers and staff, but they have to be implemented in accordance with the
duties to O under the Equality Act. The legislation trumps those other rights
in the event of a conflict.
D.
The tribunal’s order
21. In
giving permission to appeal, I wrote:
it is arguable that the
tribunal’s order for monthly reports was out of proportion to the
discrimination that it found had occurred. That appeared to be a one-off. I can
understand the tribunal ordering an apology and a removal of the record of the
exclusion, but why the report?
22. I
was concerned, as those remarks show, with the order made. I have considered
whether to set the tribunal’s decision aside on account of the terms of the
order, but have decided not to do so, as O has now left the school and this
matter is, to that extent, history. Formally, I have dismissed the appeal. If
the tribunal did make any error in respect of its order, I would have exercised
my power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act
2007 not to set the decision aside despite the error.
23. I
will, though, say something about the tribunal’s order in the hope that my
remarks will be of some help to tribunals in exercising their wide power under
paragraph 5 of Schedule 17.
24. The
tribunal made three orders. The first was to correct the school’s records in
line with the tribunal’s conclusions. Given those conclusions, that was an
appropriate order. It is always appropriate for a school’s records on a pupil
to be accurate and up-to-date.
25. The
second order was to apologise. I question what value an apology is likely to
have in most cases when made under compulsion. An apology, sincerely meant, can
be of enormous value. It recognises that something has gone wrong, it accepts
responsibility for what happened, and it allows the parties to establish a
better relationship for the future. An apology that is not sincerely meant does
none of those things; it merely creates resentment on one side and at best an
illusion on the other. It does nothing for the parties’ future relations and
may even make them worse. Left to their own devices, schools may simply adopt
some meaningless form of words. And if tribunals accept responsibility for
overseeing the terms of the apology, this can result in drawn out arguments
over wording.
26. This
is not to say that tribunals should never order an apology. If in the course of
the hearing a school shows a willingness to accept responsibility for what has
happened, it may be appropriate to incorporate an apology into the tribunal’s
order. If it seems to the tribunal that the school would be prepared to accept
and acknowledge the tribunal’s findings on responsibility, it may be
appropriate again to order an apology. But a tribunal should always satisfy
itself, before ordering an apology, that it will be of some true value.
27. The
third order was a detailed provision for monthly reports. This is the part of
the order that has caused me most concern. From the tribunal’s findings, what
happened was a one-off incident. There are always lessons to be learned, even
from such incidents. But it seems to be that the arrangement was over-elaborate,
out of proportion to what occurred and inappropriate given the short time that
O would remain at the school. An order to make adjustments can only look to the
future. That requires the tribunal to decide, among other things, whether what
occurred really indicated a failure to make reasonable adjustments or was just
one of those things that happens because it is impossible to foresee every
eventuality. In other words, does this require major changes to what the school
does or merely some minor refinement?
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Signed on original
on 10 November 2013
|
Edward Jacobs
Upper Tribunal Judge
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