[2023] UKUT 311 (AAC)

As a result of the above conclusions, decisions remain to be made on: (1) whether to exercise the general discretion under paragraph 4(3) of Schedule 17 of the Equality Act 2010 and extend time such to cover the removal of A from the School site from 03 February to 05 April 2021 and if so, (2) whether that action of removal off-site struck a fair balance between the School’s need to accomplish the general aim of preserving the health, safety and welfare of A, its staff and other pupils, with the extent of the detriment suffered by A as a consequence of that unfavourable treatment by the School.

I am satisfied that this matter should be remitted back to the original Tribunal to determine these issues. The Tribunal has heard detailed evidence and despite the passage of time, it is best placed to make those decisions.

At this appeal hearing the Respondents, who as a family argued their case with commendable clarity, quite understandably stated that they wanted to draw a line under the matter and concentrate on A’s current circumstances - the Local Authority and the parents are at an understanding where they are working together.

The Respondents referred me to section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and asked me to set the Tribunal decision aside and remake it. They argue that there is no advantage of having a new hearing.

However, I have reached a conclusion where the First-tier Tribunal decision is set aside but the remaining issues require further consideration of all the overall facts. The First-tier Tribunal is in a better position than I am to undertake that task, not least because I have not heard all the evidence. Therefore, there is no realistic alternative other than to remit the matter. However, there remains the opportunity for the Respondents to withdraw their claim to the First-tier Tribunal if they consider, upon reflection, that this is a route which best draws a line under the matter and enables the family to focus on the current best interests of A. It may be that the Appellant can find a form of words to assist with that process should it be explored.