[2023] UKUT 311 (AAC)

The Appellant accepts, as it must, that the Tribunal properly directed itself to the statutory provisions relating to time-limit jurisdiction.

The Appellant argues that there was no conduct falling within the scope of paragraph 4(5)(b) of Schedule 17 or alternatively, the decision reached by the Tribunal was perverse in the light of the underlying facts and circumstances.

The relevant findings and conclusions of the Tribunal are at paragraphs 9 to 13 of its decision. The main finding is at paragraph 13:

“The Tribunal panel took the date of 2 February 2021 as being the date on which a decision to stop providing [A] with on-site education at school [was taken]. This was an act which was continuous, on an ongoing basis, until and after the date of 11 May 2021 (six months before the date on which the claim was brought). The Tribunal panel concluded that the failure to provide on-site education was a continuing act, as it continued to be in place on and after 11 May 2021. We had uncontested evidence before us that [the School] continued to be named in section I of [A]’s EHC plan and, at the date of the hearing, was still named in his EHC plan. In all the circumstances, the claim is in time in respect of the decision of 2 February 2021 not to provide on-site education to [A], an action which continued, on a consistent basis, until and beyond 11 May 2021”.

The Appellant relies on a distinction principally explored within the employment tribunal jurisdiction as set out in the authorities above, between a one-off act with continuing consequences and conduct extending over a period.

The issues in the instant case were identified by the Tribunal by reference to an earlier registration order: “[AA and RA] claim under section 85(2) of the Equality Act 2010 that their son was subject to unlawful discrimination on the grounds of disability by [the School]. The claim was received on 10 November 2021”. After a case management hearing the claim proceeded relating to the following allegation of discrimination: “From 2 February 2021 to present, A not being educated at school, despite [the School] being named in his Education Health and Care (EHC) plan”.

The Tribunal correctly recognised that there were two routes available for a claim to be considered once presented out of time: where it amounts to conduct extending over a period and at least the last act relied upon is in time, or where the Tribunal exercises its discretion to admit the claim out of time. In its decision the Tribunal addressed the former route only and made no determination using its general discretion.

The alleged claim of discrimination was discrimination arising from disability, in respect of which it was found by the Tribunal, and unchallenged by the Appellant, that at the material times A was a disabled person pursuant to section 6 of the Equality Act 2010 and that A not being permitted to attend at the School was unfavourable treatment arising from A’s disability (the final issue of objective justification is a matter under appeal).

There was discussion at the Appeal hearing on whether the decision not to permit A to attend the School was an exclusion or a suspension. It is my view that little turns on it for the purposes of the time limit issue (Footnote: ¹).

The decision was made on 02 February 2021 and implemented on 03 February. The Headteacher of the School met with the Respondents on 05 February and communicated the decision to them in a letter dated 08 February 2021. The essential part of that letter stated:

“This letter is just to confirm that the school is currently unable to look after [A] safely.

This is for the following reasons:

• [A]’s behaviours are very challenging and complex.

• The school is usually able to meet complex behaviour needs associated with Autism, but cannot currently meet these needs due to the impact of the COVID 19 pandemic.

• The impact of the pandemic means that the highly specialised Living and Learning Centre, which is an additionally resourced provision, is suffering a reduction in the numbers of available experienced, trained and skilled staff. This is because I must respect the clinical vulnerabilities of the staff members and I cannot place them with our young people. This is in line with the Borough’s risk assessment.

• I have taken every precaution and these staff have now had their first COVID vaccination.

• I am awaiting further advice as to when these staff may return to full duties, but this could mean I cannot re-admit [A] for a further 10 weeks.

To be clear, this is not an exclusion. We will continue to provide remote learning and welfare support until [A] can safely return with a skilled experienced member of staff”.

It is this decision that was the subject of the initial claim to the Tribunal and in respect of which the issue of time limits was addressed.

The Tribunal described the School as “considering a de facto exclusion” and referred to the School’s action of restricting A from site as an ‘exclusion’ in other parts of its decision. However, I am satisfied when considering the letter by the Headteacher and the facts as found by the Tribunal that it was an expression to describe A’s non-attendance on-site as opposed to reference to any particular regulatory provision. For example, it was not a situation such as a permanent or temporary disciplinary exclusion.

Although the Tribunal’s reasoning was summary on the time limit issue, it is my conclusion that the Tribunal clearly had the terms of the Headteacher’s letter squarely in mind and upon considering the circumstances described in that letter and the School being named in Section I of the EHC Plan came to the conclusion that there was a conduct extending over a period.

With regard to the period up to 06 April 2021 I conclude that it was not an error of law for the Tribunal to reach that conclusion. The period after 06 April 2021 is addressed under Ground 2.

In the factual circumstances of this case there was clearly a continuing relationship between the School and A, both in respect of obligations arising from the EHC Plan and the express terms of the Headteacher’s letter.

A was subjected to the accepted unfavourable treatment of being off-site during the period over which the terms of the Headteacher’s letter subsisted. An intention to maintain a daily relationship existed between the School and A. There was a commitment to provide home tutoring.

It was a relatively unusual position of not being a disciplinary exclusion, but A being off-site due to an issue of lack of adequate resources caused by the pandemic. The length of the off-site period was subject to receiving and reviewing further advice/information that would influence the process of A’s return. The off-site period was not for a definitive predetermined period, but “could” have meant that A would not be re-admitted for 10 weeks depending upon when staff returned to full duties.

If an analogy is made with the employment jurisdiction, A’s circumstances up to 06 April are more akin to a disciplinary suspension. However, that said, the employment authorities produce general principles, and any comparison must be applied with caution as clearly there are substantial legal and practical inter-relationship differences with special educational needs and disability in schools.

Indeed, in many circumstances the difference between conduct extending over a period and a one-off act with continuing consequences may be such a fine line that, properly reasoned, a Tribunal would not err in law whichever side of that line the decision fell.