[2024] UKUT 139 (AAC)

Mr Broach submitted that the First-tier Tribunal had misdirected itself at [31] in concluding that, because it found the RB had made some reasonable adjustments for D, that was sufficient to discharge its duty under section 20(3). He submitted that the First-tier Tribunal had failed to determine and/or erred in law in rejecting the appellant’s case for other modest adjustments such as writing in small sentences that she could produce herself rather than big pieces of text, providing more visual aids and other (non-specific adjustments) recommended by professionals. He submitted that the First-tier Tribunal’s misunderstanding of the task it had to carry out was demonstrated through what it said at [35] about not necessarily having to make findings about the support provided to D in literacy. He submitted that these matters were crucial to the Tribunal identifying the nature and extent of the substantial disadvantage to D and whether the adjustments sought were reasonable. He further submitted that the Tribunal was wrong at [36] to regard this as a case where there was a conflict between the professionals as to what provision was required for D, pointing out that Ms Underwood’s report expressly adopted Ms Robinson’s report and indicated that the two should be read together.

Mr Wilson for the RB submitted that there was no error of law. He submitted that the Tribunal had found that the school had done enough by way of adjustments to address D’s substantial disadvantage and that it had given adequate reasons for its conclusion that no further adjustments were reasonably required. He emphasised the strong evidence that the RB had put forward (summarised by the First-tier Tribunal in particular in [27]) and submitted that there was ample evidence from which the Tribunal could conclude that the duty to make reasonable adjustments was discharged.

I acknowledge the force of Mr Wilson’s submissions in general terms, but in my judgment the Tribunal in this case has erred in law in its determination of the reasonable adjustments claim in the way alleged by the claimant under Ground D. I identified in my preliminary observations above how and why it seems to me this error has come about, and it is fair to note that the appellants bear some responsibility for it as a result of the way in which the case was presented. In so saying, I intend no criticism of the appellants personally who, it seems to me, produced well-written documents for the First-tier Tribunal setting out their case in response to the Tribunal’s case management orders. However, the orders made at the Telephone Case Management Hearings did not specifically direct them to identify the elements of their case as if they were claims for reasonable adjustments and, as litigants in person, it is entirely understandable that they did not organise their case as the statute requires them to. By the time of the hearing, with leading counsel representing them, greater precision could perhaps have been expected. However, as Mr Broach points out, the Tribunal has in fact understood the key elements of the appellants’ case and recorded in its judgment a number of the specific reasonable adjustments sought. The difficulty is that it has not gone on to determine that case at all, but has instead engaged in what seems to me to be essentially a general assessment of whether the school was making reasonable educational provision for D of the sort that it might undertake when considering under the CFA 2014 whether a school is suitable or appropriate for a child. Unfortunately, that is not what is required when determining a claim for reasonable adjustments.

The particular errors that the Tribunal has made seem to me to be as follows:-

It follows that Ground D succeeds.