[2024] UKUT 139 (AAC)

In essence, Mr Broach for the appellants relies on these passages from the First-tier Tribunal’s decision as being indicative of the Tribunal having misdirected itself in law in relation to the duty to make reasonable adjustments, a misdirection which (under Ground D) he argues had a material impact. He refers in support of his argument to the legal principles that I have set out above.

In very short summary, Mr Wilson for the respondent submits that Grounds A and B disclose no error of law and that, by reference to the same legal principles, these were legitimate observations for the Tribunal to make.

In my judgment, although I do (as already indicated) consider that the Tribunal has taken an erroneous approach to this claim, I do not consider that these two particular sentences in its self-directions at [30]-[33] themselves disclose any error of law.

The sentence referred to in Ground A is taken from [31] of the Tribunal’s decision, which is a paragraph where, as I read it, the Tribunal is setting out the sorts of factors that may be relevant to deciding whether a particular adjustment is reasonable. There is nothing wrong in principle, in matters of educational provision, with the Tribunal taking into account, when deciding whether it would be reasonable to make a particular adjustment sought by a parent, the professional opinion of staff as to what is working, or what is worth trying for a period, or allowing time for reflection and assessment before expecting changes to be made. Provided that the Tribunal keeps well in mind that it is ultimately for it as the Tribunal to make an objective decision about whether it would have been reasonable at a particular point in time for a particular adjustment to be made, there is nothing wrong with the Tribunal taking into account in making that decision the sort of factors that it mentions in paragraph [31]. One of the problems in this case is that, it seems to me, the Tribunal did not ultimately discharge its duty to carry out that exercise, but that is Ground D and not Ground A.

As to the sentence referred to in Ground B, that is taken from [32] of the First-tier Tribunal’s decision and in my judgment there is nothing objectionable about it. In context, all the Tribunal is saying in this paragraph is, quite correctly, that the duty to make reasonable adjustments is not a duty to achieve a particular result, nor is it to be equated with the “best endeavours” duty under s 66 of the CFA 2014. Indeed, as is clear from the legal principles I have set out above, it would be an error of law if the Tribunal had conflated the s 66 duty with the reasonable adjustments duty. The duty to make reasonable adjustments is what it is, and the Tribunal in [32] goes on to state the nature of that duty correctly. Its further observations in this paragraph about the difficulties in assessing the nature and extent of disadvantage or benefit that may accrue to a child from differing educational approaches are also not in themselves objectionable, provided – again – that it understands that ultimately its task is to determine in the particular case the nature and extent of the substantial disadvantage and whether the particular adjustment sought by the claimant would be reasonable.

It follows that Grounds A and B are dismissed.