Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/4489/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

 

The Appellants were represented by Mr O. A. Ogunbiyi of counsel, instructed through direct access.

 

The Respondent was represented by Mr David Lawson of counsel, instructed by Plexus Law

 

 

Decision:  The Appellants’ appeal is unsuccessful.  The First-tier Tribunal’s decision dated 1 October 2013 involved making an error on a point of law but I do not set the decision aside.

 

REASONS FOR DECISION

 

1. This is an appeal, brought with my permission by the parents of the relevant child (whom I shall call “Toyosi”), against a decision of the First-tier Tribunal dated 1 October 2013 insofar as it struck out a claim alleging disability discrimination by the Respondent, the proprietor of the Duke of York’s Royal Military School. 

 

2. The decision of 1 October 2013 also struck out a claim, unfortunately included within the particulars of the present claim, against the London Borough of Lewisham in respect of disability discrimination at Toyosi’s primary school.  I have separately allowed (on file HS/874/2014) the Appellants’ appeal against the striking out of the claim against the London Borough of Lewisham and I need say no more about that matter.

 

3. Toyosi has, among other conditions, spina bifida, hydrocephalus with ventricular peritoneal shunt, and a presumed neuropathic bladder and bowel.  In consequence, he is unable to stand or walk and uses a wheelchair as a mobility aid and he also needs cathetarisation and irrigation of his bowels.  Because of his physical disabilities, he has a statement of special educational needs, maintained by the London Borough of Lewisham. 

 

4. He attended a mainstream primary school in Lewisham and in February 2012 there arose the question of the secondary school to which he should transfer in 2013.  The Appellants wished him to attend the Duke of York’s Royal Military School in Kent.  It is one of the few boarding schools within the State education sector.  As its name suggests, it has military connections and indeed it was formerly run by the Ministry of Defence.  It is now an Academy, but military traditions are maintained in the school and its admissions criteria give preference to children of members of the Armed Forces.  Nonetheless, it is not an exclusively service school and a quarter of its pupils are from non-service families.

 

5. The Appellants, Toyosi and his twin sister visited the school in June 2012 with a view to Toyosi and his sister being assessed for suitability for boarding at the school.  The particulars of claim allege that the school informed both children “that they had passed both the boarding suitability test and interview” and this appears to be accepted by the Respondent (see paragraph 41 of the response to this appeal).  However, on 11 January 2013, the new registrar of the school wrote to the Appellants to the effect that “our boarding provision is not suitable” for Toyosi.  She also wrote to confirm that Toyosi’s sister had “met the suitability for boarding criteria” and that there would be a further letter concerning her “once the Kent County Council Admissions Process is complete in late March”.  Following an email from the Appellants, the executive principal, who was also new, confirmed on 15 January 2013 the decision in respect of Toyosi.

 

6. Meanwhile, at the beginning of October 2012, the Appellants had submitted the special needs secondary transfer form to the London Borough of Lewisham and the local authority was considering what amendment should be made to Part 4 of the statement of educational needs in anticipation of Toyosi’s transfer to secondary school.  On 25 February 2013, the executive principal of the school wrote to the local authority explaining its decision and concluding that “we are not able to offer a place as it is a totally inappropriate school for him to attend”. 

 

7. The Appellants continued corresponding with the school and, on 22 May 2013, the executive principal wrote to them saying –

 

“I am writing to you with regard your letter sated 1 May 2013 [in] which you refer to an appeal previously lodged with the school on 13 March.  In fact our records have no trace of any appeal being received.

 

In addition we can find no confirmation the Duke of York’s Royal Military School was ever named as a preference on the local authority common application form which is the appropriate route for all applications.  There is therefore no legal basis for you to pursue an appeal via the code of practice.

 

We have, however, traced our records of your direct contact with the school and have reviewed the situation on the basis of all the information available to us.

 

In your letter of appeal you state that the former principal, Mr Johnson, carried out a suitability assessment and informed you that [Toyosi] would be welcome in the school and that adaptations were going to take place to accommodate [Toyosi’s] mobility needs.  I am afraid that the documentary evidence that we have on file does not support that position.

 

[Toyosi] has a range of medical and support needs which go far beyond the level of disability which a non-specialist school such as The Duke of York’s could provide.  Specialist equipment is one aspect of his needs but the provision of such equipment could do nothing to enable [Toyosi] to enter the full range of opportunities provided by the school which places a heavy emphasis on physical activity and sport as well as military ceremonial.  These heavily influence the ethos of the school and [Toyosi’s] level of disability is such that he would effectively be excluded from most of these activities.

 

[Toyosi’s] results in the Kent Grammar School Assessment Tests are not in issue.  The tests relate entirely to his academic ability and potential.  The point at issue here is that the school is simply not equipped to meet [Toyosi’s] needs in terms of the specialist facilities or support which could be made available and even with that specialist support he would still be unable to participate in those activities which are at the very centre of school life.

 

Regrettably, in the circumstances, I have no alternative but to abide by my previous decision not to offer [Toyosi] a place at the school.  However, I do of course send my best wishes for his future education in a school which is better able to meet [Toyosi’s] specialist needs.”

 

8. On 4 June 2013, the local authority amended the statement of special educational needs but declined to name the school in Part 4.  The claim alleging disability discrimination by the Respondent was received by the First-tier Tribunal on 10 July 2013.  The Appellants also appealed against the new statement of special educational needs and that appeal was received by the First-tier Tribunal on 19 July 2013.  The Appellants asked that the two appeals be heard together.  Also on 19 July 2013, the executive principal wrote to the local authority, again setting out the school’s position.

 

9.  The Appellants asked the First-tier Tribunal for permission to record the proceedings which was refused by one registrar and then by another.  Following the second refusal, the Appellants asked a judge to reconsider the request and it was when he did so on 1 October 2013 that he also struck out the claim altogether.  The Respondent’s response to the appeal was dated 30 September 2013 and did, as it happens, ask that the appeal be struck out.  However, it seems unlikely that the judge had that response before him, because he made no allusion to it and did not strike the appeal out on either of the grounds suggested in it.  Indeed, the response may not even have been received by the First-tier Tribunal when the judge made his decision. 

 

10. The claim was struck out under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) on the ground that the First-tier Tribunal did not have jurisdiction.  It is common ground that the decision was procedurally defective because the First-tier Tribunal overlooked the requirement under rule 8(5) first to give the applicant an opportunity to make representations.  However, that defect has in effect been cured by this appeal. 

 

11. It is also common ground that the reason given by the First-tier Tribunal for considering that it lacked jurisdiction was wrong.  However the parties do not agree as to why the judge erred or as to whether the First-tier Tribunal did actually have jurisdiction. 

 

12. Paragraph 3 of Schedule 17 to the Equality Act 2010 is the only relevant provision conferring on the First-tier Tribunal.  It provides that –

 

“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 term “the Tribunal” is defined by paragraph 1 so that it means, in relation to a school in England, the First-tier Tribunal.

 

13. However, paragraph 3 must be read as being subject to paragraph 13(2).  Paragraph 13 provides –

 

“13. (1)  This paragraph applies if appeal arrangements have been made in relation to admissions decisions.E+W+S

(2)  A claim that a responsible body has, because of a person's disability, contravened Chapter 1 of Part 6 in respect of an admissions decision must be made under the appeal arrangements.

(3)  The body hearing the claim has the powers it has in relation to an appeal under the appeal arrangements.

(4) Appeal arrangements are arrangements under—

(a) section 94 of the School Standards and Framework Act 1998, or

(b) Academy arrangements as defined in section 1 of the Academies Act 2010 between the responsible body for an Academy and the Secretary of State,

enabling an appeal to be made by the person's parent against the decision.

(5) An admissions decision is—

(a) a decision of a kind mentioned in section 94(1) or (2) of the School Standards and Framework Act 1998;

(b) a decision as to the admission of a person to an Academy school or an alternative provision Academy taken by the responsible body or on its behalf.”

 

14. By virtue of sections 114(3) and 116, paragraphs 3 and 13 of Schedule 17 create exceptions to the general rule in section 114(1)(c) that the county court has jurisdiction to determine claims relating to contraventions of Part 6 of the Act

 

15. In this case, the First-tier Tribunal refused jurisdiction on the ground that the claim was made in respect of an admissions decision and so should have been made under the appeal arrangements.  The Appellants agree that the claim was made in respect of an admissions decision but state that they had not been told of any right of appeal so that in fact no appeal arrangements had been made.  The Respondent argues that the claim was not made in respect of an admissions decision at all, which is why the Appellants were not told that they had a right of appeal, but that the First-tier Tribunal did not have jurisdiction because the claim did not allege a contravention of Chapter 1 of Part 6 of the 2010 Act.  (There was also a public policy argument advanced by the Respondent in the response submitted to the First-tier Tribunal.  It was only faintly argued before me and since it does not arise on my view of the case I prefer to say no more about it.)  The parties’ arguments require consideration of the way decisions in respect of admissions are made in relation to this school.

 

16. The duties that Academies owe to parents and children are effectively laid down in funding agreements made between the proprietors of Academies and the Secretary of State.  Although the funding agreement between the Respondent and the Secretary of State in this case was made under section 482 of the Education Act 1996 on a date before the Academies Act 2010 received Royal Assent, it still falls within the definition of “Academy arrangements” in section 1 of the latter Act.  As the First-tier Tribunal noted and as both parties agree, the funding agreement clearly sets out in Annex B provision for the admission of pupils and paragraph 54 of Annex B makes provision for appeals thus –

 

“54. There will be a right of appeal to an Independent Appeal Panel for all applicants refused admission to any year group.  This includes applicants refused admission on the basis that they were deemed unsuitable to board.”

 

The second sentence helpfully makes explicit what would, in my judgment, have been implicit anyway, particularly having regard to AS v Buckinghamshire County Council (DDS) [2010] UKUT 407 (AAC); [2011] AACR 20.

 

17. However, Annex B of the funding agreement is less clear as to how and when this right of appeal is to be exercised in the ordinary case, i.e., in a case where there is no statement of special educational needs.  Paragraphs 34 and 36 provide, respectively, that “only those pupils considered to be suitable for boarding will be eligible to be considered for admission” and that “[a]rrangements for applications for places at the Academy will be made in accordance with KCC’s co-ordinated admission arrangements and will be made on the Common Application Form provided and administered by the relevant local authority”.  It is also clear from Appendix 1 that, as far as possible, parents are informed of the outcome of the assessment of boarding suitability before the time for completing the common application form expires.  It is less clear from the Appendix but is in my judgment nonetheless implicit that, if there is a dispute about boarding suitability, a parent should still complete the common application form.  I do not know whether parents are normally informed straightaway of their right of appeal in relation to a finding of unsuitability for boarding or whether only those who complete the common application form and whose children are subsequently refused admission are told of the right of appeal.  If the latter, there is clearly a risk that a parent who would otherwise wish to contest the finding will not know that he or she can do so and will fail to take the necessary step of completing the common application form. 

 

18. Paragraphs 6 to 10 of Annex C make provision in relation to the admission of pupils with special educational needs.  In particular, paragraphs 6, 7 and 10 provide –

 

“6. The Academy Trust shall ensure that pupils with SEN are admitted on an equal basis with others in accordance with its admissions policy.

 

7. Where a local authority proposes to name the Academy in a statement of SEN made in accordance with section 324 of the Education Act 1996, the Academy Trust shall consent to being named, except where admitting the child would be incompatible with the provision of efficient education for other children (which includes being ‘not suitable for boarding); and where no reasonable steps may be made to secure compatibility.  …

 

10. Where the Academy Trust has consented to the Academy being named in a child’s statement of SEN, or the Secretary of State or the First-tier Tribunal (Special Educational Needs and Disability) have determined that it should be named, the Academy Trust shall admit the child to the Academy notwithstanding any provision of Annex B to this agreement.”

 

I cannot imagine the English department of the school being very impressed with the punctuation, grammar or use of language in those paragraphs, but their meaning is clear enough. 

 

19. The implication of paragraph 10, particularly when read with paragraph 40 of Annex B, is that “pupils with statements of Special Educational Need where the Academy is named on the statement” are not admitted on the same basis as other pupils but have priority over all of them.  Paragraph 6 must therefore be read as being subject to those provisions.  However, on a literal reading, paragraph 6 does not rule out the possibility of a child with a statement of special educational needs in which the Academy is not named applying successfully through the ordinary admissions process.

 

20. This is in stark contrast to the position in relation to maintained schools, where section 98(7) of the School Standards and Framework Act 1998 disapplies the admission arrangements in that Act in relation to pupils for whom statements of special educational needs are maintained.  However, the difference may be explicable on the basis that local authorities are themselves the admissions authorities for maintained schools.  Moreover, parents of children in respect of whom statements of special educational needs are maintained do not need to apply to maintained schools through the ordinary admissions process – because a local authority is under a duty to specify a school in Part 4 of the statement where a parent has expressed a preference for that school unless the school is “unsuitable” for the child or the child’s attendance at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources (see paragraph 3(3) of Schedule 27 to the Education Act 1996).  However, it is not impossible to envisage a parent successfully applying for a child’s admission to an Academy through the ordinary admissions process in circumstances where a local authority would not specify the Academy in a statement because it considered that the child’s attendance at the school would not be compatible with the avoidance of unreasonable public expenditure (see section 9 of the 1996 Act).  For these reasons, I do not consider it necessary to give paragraph 6 of Annex C of the funding agreement a non-literal construction.

 

21. In principle, therefore, the Academy could have made an admissions decision in respect of Toyosi notwithstanding that a statement of special educational needs was maintained in respect of him. 

 

22. However, I accept the Respondent’s argument that, on the facts as set out in the claim and other documents, it clearly did not do so.  The Appellants never made an application for admission through the common application form as required by paragraph 36 of Annex B to the funding agreement.  This may have been because they were advised that it was inappropriate to do so when there was a statement of special educational needs in relation to Toyosi – the special needs transfer form is not the same as the common application form – but, whatever the reason, no formal application to the school was made for admission.  I accept that, in both his letter to the Appellants dated 22 May 2013 and in his correspondence with the local authority, the executive principal referred to a decision “not to offer” Toyosi a place at the school, but it is equally clear in his letter of 22 May 2013 that he could “find no confirmation the Duke of York’s Royal Military School was ever named as a preference on the local authority common application form which is the appropriate route for all applications” and that therefore there “was no legal basis for an admissions appeal”.  In writing in mid-2013 – long after the time for completing a common application form had passed – of not offering a place, he plainly meant only that the Academy Trust did not consider that the school should be named in Part 4 of Toyosi’s statement of special educational needs.  This was not a question of the Academy Trust refusing its consent under paragraph 7 of Annex C of the funding agreement, since it was not suggested that the only condition for refusing consent was met.  Rather, it appears to have been a question of trying to persuade the local authority that the school was “unsuitable” for Toyosi and that it should not be specified for that reason.  This is not inconsistent with Toyosi having been assessed as suitable for boarding.  What the executive principal appears to have disputed in the fourth paragraph of his letter of 22 May 2013 was the Appellant’s suggestion that his predecessor had not only said that Toyosi was suitable for boarding but also that the school would welcome him and make necessary adaptations.

 

23. It is for these reasons that I am satisfied that the only conclusion the First-tier tribunal could have reached is that the Respondent did not make a decision as to the admission of Toyosi to the Academy and so did not make an admissions decision.  That is presumably why the Appellants were not notified of appeal arrangements.  Everyone expected the decision whether Toyosi should be admitted to the school to be made by the local authority or the First-tier Tribunal in the context of the statement of special educational needs. In fact, the appeal against the statement of special educational needs was dismissed on 4 April 2014 and I have refused permission to appeal (on file HS/2336/2014), although that refusal is the subject of judicial review proceedings.  Toyosi has therefore not been admitted to the Duke of York’s Royal Military School.  (I understand that his sister was offered a place but did not take it up.)

 

24. Because no admissions decision in respect of Toyosi was taken by the Respondent as the responsible body, paragraph 13(2) of Schedule 17 to the Equality Act 2010 clearly did not apply and the First-tier Tribunal erred in law in considering that that provision had the effect that the First-tier Tribunal did not have jurisdiction in this case. 

 

25. However, as I have mentioned, the Respondent argues that the First-tier Tribunal did not have jurisdiction because the claim was not a “claim that a responsible body has contravened Chapter 1 of Part 6 because of a person’s disability”.

 

26. Understandably, the particulars of claim were not set out as a lawyer would have pleaded them, although they were clearly drafted with some knowledge of the law.  They amounted to a chronology but did not particularise breaches of statutory duty.  On 24 June 2014, I directed the Appellants to provide particulars of the claim, setting out in detail the ways in which it was said that the Respondent had acted unlawfully in breach of the 2010 Act either in making the boarding assessment or otherwise.  That direction was not complied with and Mr Ogunbiyi, who appeared before me on behalf of the Appellants, was clearly unaware of the direction.  However, I was told – as was anyway reasonably clear from the documents – that the claim was broadly that, in forming the view that the school was not suitable for Toyosi, the Respondent had failed to give proper consideration of adjustments that might be made and had simply perceived problems and general issues without considering how difficulties could have been got around.  I observe that a representative of the Respondent appeared as a witness before the First-tier Tribunal when it heard the Appellants’ appeal against the statement of special educational needs.  The First-tier Tribunal was not altogether impressed.  It said, at paragraph 110 of its statement of reasons –

 

“We had concerns that DYRMS had not fully embraced the concept of an inclusive education for all children when it converted to an Academy, and the evidence presented to the Tribunal suggests that it may need to review its approach and policies to ensure that it is fully inclusive in future.”

 

27. However, whatever the merits of that criticism, the First-tier Tribunal did not have jurisdiction to consider the present claim unless it could amount to a claim that the Respondent had contravened Chapter 1 of Part 6 of the 2010 Act.  Chapter 1 of Part 6 is concerned only with discrimination in schools.  Section 85(1) to (6) provides –

 

“85.–(1)The responsible body of a school to which this section applies must not discriminate against a person—

(a) in the arrangements it makes for deciding who is offered admission as a pupil;

(b) as to the terms on which it offers to admit the person as a pupil;

(c) by not admitting the person as a pupil.

  (2) The responsible body of such a school must not discriminate against a pupil—

(a) in the way it provides education for the pupil;

(b) in the way it affords the pupil access to a benefit, facility or service;

(c) by not providing education for the pupil;

(d) by not affording the pupil access to a benefit, facility or service;

(e) by excluding the pupil from the school;

(f) by subjecting the pupil to any other detriment.

  (3) The responsible body of such a school must not harass—

(a) a pupil;

(b) a person who has applied for admission as a pupil.

  (4) The responsible body of such a school must not victimise a person—

(a) in the arrangements it makes for deciding who is offered admission as a pupil;

(b) as to the terms on which it offers to admit the person as a pupil;

(c) by not admitting the person as a pupil.

  (5) The responsible body of such a school must not victimise a pupil—

(a) in the way it provides education for the pupil;

(b) in the way it affords the pupil access to a benefit, facility or service;

(c) by not providing education for the pupil;

(d) by not affording the pupil access to a benefit, facility or service;

(e) by excluding the pupil from the school;

(f) by subjecting the pupil to any other detriment.

(6) A duty to make reasonable adjustments applies to the responsible body of such a school.”

 

In addition, section 88 provides that Schedule 10 shall have effect and paragraph 3 of Schedule 10 places on responsible bodies a duty to prepare, keep under review and implement an accessibility plan.

 

28. Toyosi was not a pupil of the school so that there could be no question of the claim being that there had been a contravention of section 85(2).  There was no allegation of harassment or victimisation so that there was no allegation of a breach of section 85(3) to (5).  The Respondent did not itself make a decision offering to admit Toyosi or not admitting him and so there was no breach of section 85(1)(b) or (c). 

 

29. It is also clear that, when considering whether a responsible body has failed to comply with section 85(1)(a), the “arrangements it makes for deciding who is offered admission as a pupil” are the arrangements the responsible body makes for it itself deciding whether to admit a pupil.  The provision does not extend to any part the responsible body might play in proceedings in respect of a statement of special educational needs. 

 

30. However, there can clearly be a failure to comply with section 85(1)(a) even if the responsible body does not go on to make an admissions decision itself.  Moreover, in DP v Governing Body of Radley College (DDS) [2011] UKUT 66 (AAC), decided under section 28C(1) of the Disability Discrimination Act 1995 of which paragraphs (a) and (b) were forerunners of subsections (1)(a) and (2) of section 85 of the 2010 Act, I said –

 

“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).”

 

Thus it seems to me section 85(2) and (6) of the 2010 Act may be relevant when considering section 85(1)(a).  I also observe that the jurisdiction of the First-tier Tribunal appears to extend to considering whether a responsible body has failed to comply with the duty to prepare, keep under review and implement an accessibility plan in conformity with paragraph 3 of Schedule 10 to the 2010 Act, because that Schedule is introduced by section 88 which is in Chapter 1 of Part 6 of the Act.  That might be of related relevance in some cases.

 

31. In the present case, the claim appears to be aimed at the way that the Respondent formed the view that the school was unsuitable for Toyosi.  It is not arguable that that was in any way connected with arrangements made for deciding who was to be offered admission as a pupil because the Respondent was not by then contemplating making any admissions decision in respect of Toyosi as a result of the Appellants not having made the appropriate application.  Even if there were unlawful discrimination in forming a view on suitability for the purposes of assisting the local authority and the First-tier Tribunal to decide whether the school should be specified in Part 4 of the statement of special educational needs, that would not be a breach of section 85(1)(a) and so the First-tier Tribunal would not have jurisdiction to determine a claim that there had been such discrimination.

 

32. It is conceivable that the Appellants would have had a case under section 85(1)(a) if the arrangements for admissions misled them into not making an application for admission on the common application form.  However, that is not how the case has ever been put and I am not minded to set aside the First-tier Tribunal’s decision and remit the case for consideration of that issue when the First-tier Tribunal has made a finding in the appeal against the statement of special educational needs to the effect that the school is not suitable for Toyosi.  My decision will stand as guidance to the Respondent and to local authorities that the fact that a child has a statement of special educational needs under Part IV of the Education Act 1996 does not necessarily preclude an application for admission to an Academy being made through the ordinary admissions procedure.

 

33. For these reasons, although I am satisfied that the First-tier Tribunal erred in law, I do not set aside its decision (see section 12(1) and (2)(a) of the Tribunals, Courts and Enforcement Act 2007).

 

 

 

 

Mark Rowland

9 September 2014