[2024] UKUT 449 (AAC)

The Tribunal has properly directed itself on the relevant law and explained the essential elements leading to its conclusion on why no reasonable adjustments could have been made. The parties knew why they had won or lost. The effectiveness of the right of appeal has not been impinged (see Threlfall -v- General Optical Council [2004] EWHC 2683)

I find that the Tribunal did consider the anticipatory nature of the reasonable adjustment in the form of an EHC Plan for the reasons set out in paragraph 40 of the decision:

“It is most unlikely, in our judgement, that an Education, Health and Care Plan would have been a practicable solution since, in the circumstances, it is unlikely that the local authority would have agreed, and the process could have taken up to six months. Further, [DJ] is unlikely to have responded to or engaged with any special educational provision and the discipline issues would remain”.

The Tribunal has recorded that by early October 2021, in the first term of A-level studies, matters had escalated such that DJ was not allowed to return to the College. Therefore it is not a matter of ‘leaving it too late’ to refer DJ for a needs assessment, but a reflection that in the context of an A-level course the period was too long to have been a practicable solution and a reasonable adjustment.

In my view it is immaterial whether the process would have taken 6 months (26 weeks) as stated by the Tribunal, or 21 weeks as contended by the Appellant. The point being made is that it would not have been an expedited process in the context of an A-level course.

This ground of appeal is unsuccessful. There is some overlap with Ground 3.

The Appellant argues that the Tribunal failed to engage with the claim and that the decision particularly does not address adequately the written and oral evidence of Dr Hymans.

The Appellant relies on a number of authorities relating to the importance of adequate reasons including R -v- Secretary of State for the Home Department ex p. Doody [1994] AC 531, HL:

“I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene…”.

Threlfall (above):

“…the effectiveness of the right of appeal may depend on the giving of reasons by the Disciplinary Committee, in any case in which a decision is made to impose a disciplinary order (as defined in section 14 of the Opticians Act 1989) I think that Article 6 does require adequate reasons to be given by it in good time for the right of appeal to be exercised.”

Piglowska (above).

It was argued that a key part of the Appellant’s case was that the Head Teacher failed to address his mind to how the Appellant’s disability contributed to the behaviour that led to DJ being removed. The Head Teacher asserted that much of the Appellant’s behaviour was unconnected to his ADHD. The Responsible Body could and should have done much more before removing DJ. The Appellant argues that, although the Tribunal does not need to address every point in detail, failing to consider the expert written and oral evidence of Dr Hymans at all in relation to whether there were reasonable steps that could have been taken was a significant omission, which makes it difficult to ascertain whether the Tribunal has adopted a rational approach to the expert recommendations. The Appellant also argues that the Tribunal’s failure to provide reasons frustrates the Appellant’s right of appeal. The Tribunal rejected Dr Hymans’ expert evidence in relation to disability at paragraph 30 of its decision and so reasons must be provided.

The Respondent argues that the Tribunal’s reasons were sufficient in that they told the parties in broad terms why they have lost, outlined the circumstances of the claim, summarised the Tribunal’s basic conclusions and set out why it reached the conclusions it had. The reasons need only allow the parties to understand why they have won or lost, against the background of the evidence that was given and without all of the evidence being rehearsed in the decision.

In addition to the cases cited by the parties I have referred myself to other well-established authorities relating to adequacy of reasons. The principles are consistent and universal across jurisdictions.

The purpose of the reasons provided is to tell the parties in broad terms why they have won or lost, as the case may be, and also be sufficient to enable an appeal court to judge whether any question of law arises. The test is one of adequacy: the decision “must contain an outline of the story that has given rise to the complaint, a summary of the tribunal’s basic factual conclusions, and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts” (DC -v- Ealing LBC [2010] UKUT 10 AAC). “The duty to provide adequate reasons must be seen in the context of the proceedings of 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” (LS -v- Oxfordshire County Council [2013] ELR 429).

Also, in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49, giving guidance in the context of specialist tribunals Lady Hale stated:

“This is an expert tribunal charged with administering a complex area of law in challenging circumstances. . . They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law.”

In Shamoon -v- Chief Constable for the Royal Ulster Constabulary [2003] UKHL 11, [2003], Lord Hope said:

“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. . . An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. . . The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable”.

In ASLEF -v- Brady [2006] IRLR 576 the EAT stated: “it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence”.

Having regard to the relevant authorities, save where detailed under Ground 1 above, the Tribunal’s reasons were adequate and displayed no error of law. The conclusion that the Tribunal fell into error on that account does not, of course, mean that the rest of the reasons are flawed or are inadequate.

The Tribunal clearly considered Dr Hyam’s evidence. It had the medical report, considered the content, understood the position of Dr Hymans and the potential problems highlighted by the Respondent. It should be assumed that the Tribunal have taken that into account in its decision making. It is not required for the evidence to be set out in detail nor topic by topic or to make findings on all matters of dispute. The weight to be placed upon the evidence is a matter for the Tribunal, it need not all be discussed in the judgment and the validity of the findings is not dependent on the presentation of a balanced account.

The Appellant stated in submission that a key part of the claim was that the Head Teacher failed to address his mind to how that Claimant’s disability contributed to the behaviour that led to him being removed. However, the issue for the Tribunal ultimately was whether the proportionality issue was satisfied in the section 15 analysis and whether any reasonable adjustments were required to avoid disadvantage in the section 20 analysis. Those are matters based on the actual facts, whether or not the Head Teacher addressed his mind to them. A person may not address their mind to issues impacting upon their decision making and comply with their legal obligations, another may significantly consider those matters but fall short.

The submission that the Responsible Body should have done much more before removing DJ is again a matter of fact and balance for the Tribunal when applying the relevant law to the facts.

The issue is whether the reasons provided by the Tribunal are adequate and it is my conclusion that save for the misdirection and consequences in Ground 1 they were.

This ground of appeal is unsuccessful.

Therefore the appeal is successful on Ground 1 only and after considering representations by the parties the matter shall be remitted to a wholly different tribunal panel of the First-tier Tribunal for reconsideration at an oral hearing of the section 15 issue only. That is the most appropriate course of action given the matters for consideration and the potential time scales involved.