Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/330/2013

ADMINISTRATIVE APPEALS CHAMBER

 

BEFORE UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Miss C Hadfield, Counsel, via direct access

 

For the Respondent: Ms P Jackson, Counsel, instructed by Stone King LLP

 

 

Decision: The appeal is allowed.  The decision of the First‑tier Tribunal sitting at Mansfield on 31 October 2012 under reference SE/981/11/00050 involved the making of an error of law and is set aside.  The case is referred back to the First‑tier Tribunal (HESC Chamber) as provided below. 

 

The case is referred back to the original panel to make a fresh decision and to express its reasons for it to a legally sufficient standard.

 

If the original panel cannot be convened within a reasonable time or at all, whether because of the retirement of one of its members or otherwise, the case is to be heard afresh by an entirely differently constituted panel.

 

Liberty to apply for directions in relation to giving effect to this Decision.

 

REASONS FOR DECISION

 

1. The girl who is the subject of this case, J, at the time of the incident which was the catalyst for the dispute, was a year 10 pupil.  In the words of the First‑tier Tribunal:

 

“she has moderate learning difficulties, challenging behaviour and the ‘triad of impairment’ that characterises autistic spectrum disorder (‘ASD’), which are communication difficulties, impairment of social development and some rigidity of thought.”

 

2. On 18 May 2011 J assaulted Mrs D, one of her specialist support mentors.  This was the fourth time she had assaulted one or other mentor.  Discussions took place, resulting eventually in a package being offered to J to allow her to continue her education under the auspices of the school, though in a different way from previously.

 

3. Proceedings were commenced in the First‑tier Tribunal alleging that the school’s conduct constituted unlawful disability discrimination.  The remedies sought were an apology, staff training and improvements in the school’s policies and procedures.  On 1 November 2011 the school converted into an academy.  Responsibility for the acts of the governing body as “responsible body” thereupon transferred to the local authority:  see ML v Tonbridge Grammar School and SB v West Bridgford Academy [2012] UKUT 283 (AAC).  However, it was agreed that the school would defend the case on behalf of the local authority.

 

4. As put to the First‑tier Tribunal, the case fell into two parts.  There were complaints that the school had failed to make reasonable adjustments which might have forestalled the events of 18 May 2011.  Because of the limited terms in which permission to appeal has been given, they play no part in the matters before me and I say no more about them.  The second question was whether in its dealings with J after the 18 May incident and in particular the arrangements it made in respect of her continuing education, there was discrimination against J arising from her disability falling within Equality Act 2010, section 15.

 

5. Following an oral hearing on 26 April 2013 I gave permission to appeal on limited grounds, rejecting a significant number of other points.  I return to the detail below, but in essence the first ground  was a reasons challenge in respect of how the tribunal had dealt with the application of section 15 to the facts, while the second ground related to whether the tribunal’s conclusions about the courses proposed for J and the qualifications to which they might lead were open to it on the evidence. 

 

6. The Equality Act 2010 provides by section 15:

 

“ (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 be expected to know, that B had the disability.”

 

7. In the present case there is no dispute that J is disabled, that the school knew that to be so and that her action in striking Mrs D arose in consequence of her disability.

 

8. At paragraphs 8 to 14 of the tribunal’s decision the tribunal set out evidence about the negotiations that took place between the school and J’s parents following the 18 May incident, about some of the issues that arose in the course of those discussions and about the dates from which J resumed school pursuant to the arrangements which had emerged from those discussions.

 

9. Between paragraphs 15 and 19 the tribunal recorded submissions from Ms Jackson and from the appellant.  Ms Jackson had submitted a written skeleton argument to the First‑tier Tribunal which I have seen and to which I refer below.

 

10. Between paragraphs 20 and 23 the tribunal directed itself as to the law, including, in paragraph 22(b), in respect of discrimination arising from a disability under section 15.

 

11. The final section is entitled “tribunal’s conclusions with reasons”.  After dealing with the “reasonable adjustments” point (in respect of which no appeal to the Upper Tribunal has been permitted) the tribunal turned to section 15, directing itself that:

 

“in order for their claim to succeed, the parents would need to show that the treatment was unfavourable, but there is a defence available to a responsible body, namely to show that the treatment is justified as a proportionate means of achieving a legitimate aim.  The burden falls on the responsible body to prove justification.”

 

12. Against that background, the tribunal in paragraph 27 noted in respect of what had been put in place after 18 May that:

 

“the individualised arrangements which were offered took away full‑time education, her opportunity to continue some of her courses and to interact at that level with her peers.”

 

The position of the parties as to this was then set out:  in the second half of paragraph 27 “the school argued that what was provided was of benefit to her, and the intention was gradually to extend [J’s] provision …”.  In paragraph 28 the perspective of J’s parents was noted:  “they appear to mean that she had been treated unfavourably because of something arising in consequence of her disability”.  In paragraph 29 the tribunal notes that the test of whether something is unfavourable is objective.  It noted a number of factors which it considered examples of good practice on behalf of the school before concluding in paragraph 30:

 

“nevertheless, taking into account that ‘unfavourably’ must be tested objectively, and [J] lost some of her curriculum experiences as a result of the new individualised programme, we have been driven to the conclusion that this was unfavourable treatment.”

 

13. It then continued, in what are the key paragraphs for the present decision: 

 

“ 31. However, that does not amount to a finding of discrimination.  We now need to go on to consider the defence of justification, i.e. were the actions taken by the school, a proportionate means of achieving a legitimate aim?  The school argued that the health and safety of its students and staff was a legitimate aim, as was the class atmosphere which needed to be as free of disturbance as possible, particularly in Y11, when [J’s] peers were preparing for their GCSEs.  We accept that those were legitimate aims and also that they were proportionate.  We have therefore concluded that the school is entitled to rely upon the defence of justification. 

 

32. However there was another legitimate aim in play – namely that [J] should achieve the qualifications for which she was on course prior to 18 May.  We find that the measures which the school – with the backing of the local authority – bent over backwards to put in, were proposed with the intention of giving [J] every opportunity of achieving the same qualifications. 

 

33. We do not therefore find that the Responsible Body discriminated against [J] in relation to the second part of the Parents’ claim.”

 

14. The correct approach to the giving of reasons is conveniently summarised in LS v Oxfordshire County Council (SEN) [2013] UKUT 0135 (AAC) at paragraphs 32 to 33:

 

“32. There is no disagreement between the parties as to the proper legal test to apply as regards the adequacy (or not) of a tribunal’s reasons. In short, the purpose of a tribunal’s reasons “remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win” (UCATT v Brain [1981] IRLR 225 at 227 per Donaldson LJ; see also Meek v Birmingham City Council [1987] IRLR 250. That basic test applies equally in special educational needs cases (W v Leeds City Council and SENDIST [2005] EWCA Civ 988, [2006] ELR 617 at [52]-[54] per Ward LJ, H v East Sussex County Council [2009] EWCA Civ 249, [2009] ELR 161 at [16]-[19] per Waller LJ and now DC v London Borough of Ealing [2010] UKUT 10 at [38]-[46]).

 

33. The case law also shows that the duty to provide adequate reasons must be seen in the context of the proceedings in the case as a whole. So the parties’ prior knowledge of the nature of the dispute and the relevant contentions on appeal will be relevant in deciding whether the reasons are adequate. It follows that the reasons do not need to be spelt out in the level of detail required for a stranger to the dispute (see e.g. Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 at paragraph 32 per Keene J (as he then was))…”

 

Judge Wikeley then went on to refer to like effect to SG v Somerset County Council [2012] UKUT 353 (AAC) at paragraph 9.

 

15. Ms Jackson also submitted, quite correctly, that individual passages in a decision should not be read in isolation and that one has to look at the decision as a whole:  to the extent that authority for those propositions is necessary it is to be found in Secretary of State for the Home Department v AH (Sudan) and Others [2007] UKHL 49  at  paragraph 19.  I was also taken to paragraph 30 of AH (Sudan) but that does not impose an additional need for restraint on the Upper Tribunal:  see AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 at [45] to [47] and [50].

 

16. The tribunal was writing for an informed audience and it is clear from Ms Jackson’s skeleton argument to the First‑tier Tribunal that she submitted to the First-tier Tribunal that a proposal put forward at a meeting on 23 May 2011 for alternative one to one provision for J, which was to be created in partnership between the local authority, the specialist disability team, J’s parents and the school constituted a proportionate response (skeleton argument, para 18).  The skeleton argument then goes on to submit that in the light of the appellant’s subsequent willingness to consider alternative provision provided it was on-site, the school’s agreement to explore provision based at the school with the assistance of external specialist providers also constituted a proportionate response (skeleton argument para 19). 

 

17. What is altogether less clear is what the parties’ positions were thereafter.  The appellant says he was concerned with courses and qualifications; the respondent says that the appellant’s wish was to get his daughter reintegrated into school.  The two aims are not necessarily exclusive.  Even if the latter were the case, the appellant would still have been entitled to a decision as to whether what the school was proposing, falling short of what he was seeking, amounted to unlawful discrimination.

 

18. Returning to the tribunal’s decision, I do not accept Ms Jackson’s submission that in paragraphs 27 to 31 the tribunal was making findings in respect of whether the school’s actions were proportionate to a legitimate aim.  Rather, the structure and most of the content of paragraphs 27 to 30 make clear that at that point what the tribunal was doing was considering whether there had been unfavourable treatment and it found that there had been.  While I accept that there are references to such matters as good practice which might be relevant to a proportionality exercise, these are in my view not sufficient to displace the clear “steer” as to what the tribunal was doing at this point, provided by, in particular, paragraph 30. 

 

19. Moving then to the following paragraphs, it is not in dispute that the tribunal needed to identify one or more legitimate aims and then ask itself whether the discriminatory effects of the treatment of J were significantly outweighed by the importance and benefits of the legitimate aim(s) and whether there was any reasonable alternative open to the school which meant that the legitimate aim(s) could be achieved by other, less discriminatory, means. The tribunal in its opening two sentences in paragraph 31 is reminding itself that it needs to address the test in section 15(1)(b).  That requires examination of two matters, “legitimate aim” and “proportionate means”.  It recites two matters which the school had submitted were legitimate aims (namely (i) health and safety and (ii) minimising disturbance to students working for GCSEs).  In its next sentence the tribunal indicates “we accept that those were legitimate aims and also that they were proportionate”.  Miss Hadfield does not dispute that they are legitimate aims.  She does however submit that, in going on “and also that they were proportionate”, the tribunal has failed to give sufficient reasons in respect of proportionality.

 

20. I consider that that submission is correct.  If one takes the language at face value, the tribunal was saying that the same things that were legitimate aims were those things which were “proportionate”.  That, as an explanation, is at best muddled, as the tribunal needed to be considering the means of achieving the legitimate aims. 

 

21. Even if one approaches the matter fully mindful of Ms Jackson’s submissions in her skeleton argument to the First‑tier Tribunal that certain steps were proportionate and that the statement of reasons was being written for an informed audience, I still consider the reasons inadequate.  The same applies to the (to my mind, unduly benevolent) construction of paragraph 31 that the word “they” in “they were proportionate” is a reference back to “the actions taken by the school” earlier in the paragraph.  I say unduly benevolent both because of the way the tribunal’s logic unfolds at the start of paragraph 31 and because of the grammar of the offending sentence.  However, even if one were to take on these issues the view most favourable to the school, this would amount to no more than a bald – and inadequate - statement that the tribunal found that the means were proportionate. 

 

22. The assessment of proportionality is an evaluative one and nowhere else in the decision indicates that such an evaluation took place either.  In my view the lack of any reasons as to why, if such were the case, the tribunal considered the means to be proportionate is a significant omission.  Section 15 of the Equality Act is a form of discrimination peculiar to disability discrimination cases.  It does not require the person claiming to be discriminated against to point to a comparator, merely to unfavourable treatment “because of something arising in consequence of [that person’s] disability” (a broadly expressed test).  The role of subsection (1)(b) in ensuring that (in layman’s terms) unfavourable treatment regrettably experienced by a disabled person goes no further than it needs to is thus a critical one in cases of this type.  Some sort of explanation is called for and it is one which a tribunal such as this, constituted with specialist members, is well equipped to provide. 

 

23. Nor do I think it is an answer that, as Ms Jackson submits, the tribunal made various findings referable to the proportionality question.  Whether some of the matters to which Ms Jackson took me are truly findings is in any case debatable but because of the evaluative nature of a proportionality assessment, findings alone are not enough.  I also take the view that as submitted by Miss Hadfield, while one should read reasons in the round, one has to take them as they are rather than trying to piece together a possible explanation which the tribunal did not itself give, using scattered references in the tribunal’s reasons.

 

24. As I consider that the tribunal’s confusion of “aims” and “means” and the lack of any reasons in respect of its assessment of proportionality are sufficient to obscure both from the appellant and from the Upper Tribunal how it reached its decision on a key issue and thus fall foul of the tests summarised in LS, I need not dwell on other shortcomings in the reasons that there may have been, such as the obscurity of the part (if any) played by paragraph 32, coming as it does after the tribunal’s conclusion that the school was entitled to rely upon a defence of justification. 

 

25. As to the second ground, with the assistance of Ms Jackson who appeared below, I am satisfied that there was evidence to support paragraph 32.  There had been at first sight something of a mismatch between what J had been studying for in certain subjects before the 18 May incident, notably food technology and textiles, and what it was proposed she should study for afterwards.  I accept however that there is evidence that even before the 18 May incident the school had concluded that J was not coping with the GCSE courses in those two subjects and would not achieve a GCSE in them and that she would in any event have needed to change to alternative qualifications.  Ms Jackson submits that the tribunal’s references in paragraph 32 to “the qualifications for which she was on course” has to be understood in the light of that evidence and that when it is, there is evidence to support the tribunal’s conclusions on that point. 

 

26. While that is so, I accept Miss Hadfield’s point that there is a degree of tension between paragraphs 30 and 32 of the tribunal’s statement of reasons.  The latter is a paragraph which has the hallmarks of having been added almost as an afterthought.  It could certainly have been more clearly expressed.  However this point was not squarely among the grounds on which I gave permission to appeal and it does not add materially to the shortcomings in the reasons I have already found and it is because of the latter that I find the tribunal’s decision to have been in error of law. 

 

27. I have a discretion whether to set the decision aside or not.  I am conscious that the school has participated fully and responsibly in proceedings before the First-tier Tribunal and the Upper Tribunal and that if (as I have held to be the case) the First-tier Tribunal’s reasons were inadequate that is not something for which responsibility can be laid at the school’s door.  No doubt, too, there are many other purposes for which the school’s resources can be usefully deployed.  However, it seems to me that not to set the decision aside would leave the matter unresolved to the satisfaction of nobody.  It would mean that the appellant and J would be deprived of a fair process for establishing whether there had been unlawful discrimination, a process which Parliament has intended they should have.  It would leave a question mark over the school’s actions by suggesting that the process which had led to a finding of no unlawful discrimination had been flawed when, if the school has acted lawfully in challenging circumstances, it is entitled to an unimpeachable decision saying so.  On the other hand, if there are points to be learnt from the school’s actions, it is as well that they should be. 

 

28. At [20] to [23] of the ML and SB cases, Upper Tribunal Judge Rowland expressed reservations as to the appropriateness of certain remedies (including some of those sought in the present case) in cases such as this where the school had subsequently become an academy and responsibility had passed to the local authority.  No reliance was placed on them before me.  Whether or not, in the event that the claim were subsequently to be upheld, the particular remedies sought should be awarded, a declaration by the tribunal in its decision would still provide a vindication of the appellant’s position and an indication for the present and other schools of what is to be expected. 

 

29. I therefore conclude that it is right to set the tribunal’s decision aside.

 

30. I am informed that one of the three members of the tribunal which heard the case has retired on reaching the compulsory age to do so, but that it may be possible to arrange for him to return for this specific task.  If it can be accomplished lawfully and on a practical level, I see no reason why that panel should not be reconvened.  Its purpose is as I have described in the decision at the head of these reasons.  It will be entitled to rely on findings it has already made if it sees fit to do so.  However, in order to deal with the points as to which reasons are inadequate it may need to consider afresh parts of the evidence with the aid of further submissions.

 

31. If it proves not to be possible to reconvene the same panel, then unless the parties are prepared to the matter being completed by a two member panel, there will have to be a full re-hearing by an entirely differently constituted panel.

 

32. The course of remitting a case to the same specialist tribunal for it to reconsider the matter and adequately express its reasons for decision was endorsed by the Court of Appeal in Adami v Ethical Standards Officer [2005] EWCA Civ 1754.

 

33. In Adami reference was made to Barke v Seetec Business Technology Centre Limited [2005] EWCA Civ 578, where the court observed at paragraph 47:

 

“The underlying justification for this is that judges and members of employment tribunals are trusted for their professionalism and integrity and, in many cases, it is better to remit to the original court or tribunal.”

 

34. What is true for employment tribunals in this respect is equally true for the First-tier Tribunal (HESC Chamber) and I have no doubt that the panel in this case would be able to perform with professionalism and integrity the duty imposed upon it by this decision.

 

(Signed on the Original)

C G Ward

Judge of the Upper Tribunal

 

2 January 2014