[2023] UKUT 311 (AAC)

The Tribunal’s analysis of proportionality is contained in paragraphs 34 to 38 of its decision.

The Tribunal at paragraph 34 of its decision correctly identified that when assessing whether unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim, the discriminatory effect of the treatment must be balanced against the reasonable needs of the respondent to the claim. The treatment must be appropriate and reasonably necessary to achieving the aim (see Homer -v- Chief Constable of West Yorkshire Police [2012] UKSC [2012] ICR 704).

The Supreme Court in Akerman-Livingstone -v- Aster Communities Ltd [2015] 3 All ER 725, suggested a four stage guide (per Lord Wilson): (1) whether the aim is sufficiently important to justify the treatment; (2) whether there is any rational connection between this aim and the less favourable treatment or disadvantage suffered; (3) whether the means chosen are no more than is necessary to accomplish the aim (and whether proportionate alternative measures could have been taken without a discriminatory effect); and (4) whether the steps complained of strike a fair balance between the need to accomplish the aim and the detriment suffered. Although this was a housing possession case, the principles are of universal application.

Whilst Akerman-Livingstone was not cited to the Tribunal, the final stage of its guidance, of striking a fair balance between the School’s need for the aim and the detriment to A, is well established (see for example Hardy & Hansons plc -v- Lax [2005] EWCA Civ 846 and Homer above).

I accept the Appellant’s argument that there is no, or insufficient, demonstration of the Tribunal considering the health, safety and welfare of the staff and other pupils as part of its reasoning. It has not set out, even in general terms, the degree of need for the School to accomplish the aim of safety to staff and pupils, such that an assessment can be made of whether a fair balance could be struck with the Tribunal’s detailed exposition of the detriment to A. That state of affairs may perhaps be a symptom of the Tribunal describing the aims under Appeal Ground 3 as it did, but the consequence is that in its decision the Tribunal has set out only the effect on A and A’s health, safety and welfare but without an assessment of the Appellant’s need to accomplish its aim of also including staff and other pupils. For example, it is a finding by the Tribunal that on a number of occasions between September and December 2020 staff had to physically restrain A and between 19 January and 02 February 2021 five injuries were sustained by staff.

I also find that as part of this process the Tribunal did not differentiate between decisions that were made by the School as the respondent to the action and those made by the Local Authority which was not. The Tribunal’s decision elides together the actions and decision making made by those two bodies, but section 15 requires an analysis of the unfavourable treatment of A by the School.

Accordingly the appeal on Ground 4 succeeds on these points.

The Tribunal was, however, entitled to make the findings of fact and conclusions it did arising from the Appellant’s decision to stop providing A with on-site education. The Appellant is revisiting arguments already made on this issue and it cannot successfully be argued that the Tribunal’s decision was perverse in this respect.

For example, the Tribunal did not state that the School’s decision on 02 February 2021 “caused the decision taken by the Respondents”, as alleged by the Appellant. The Tribunal found that there was a decline in A once he was stopped from attending at the School, which: “must have, on any logical view, contributed to the decision to sign the Section 20 Agreement”.

It may have been that some of the circumstances relating to A were present before the decision of 02 February, but it was open to the Tribunal to make findings on the further consequences to A of that decision.

The Tribunal highlighted in its findings a lack of formal process, a ‘dynamic’ process of decision making, and also potential alternative options relating to the Appellant. The Tribunal had the ‘reasonably necessary’ test squarely in mind.

The Appellant has raised arguments that the Tribunal failed to analyse critically whether steps it had identified as potential proportionate measures would have made any difference to the legitimate aims. I conclude that those arguments do not demonstrate a misdirection by the Tribunal or a perverse decision. For example, with regard to the length of the exclusion that the Tribunal found to be a disproportionate response, it was qualified: “without at the very least, a mechanism for ongoing reviews, on at least a weekly basis, to establish if circumstances have changed to mean [A] could attend school even on a part-time basis”.

However, because of the conclusions and reasons above giving rise to the appeal succeeding, I consider that it is most appropriate for the whole issue of proportionality to be considered afresh.