Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 139 (AAC)

Fecha: 24-Abr-2024

Introduction 3

Introduction 3

Factual background 4

The First-tier Tribunal’s decision 10

The grant of permission 14

The relevant legal principles 16

The grounds of appeal: discussion and conclusions 27

Preliminary observations 27

Ground A – “The First-tier Tribunal erred in finding that a school is entitled to take time and to exercise discretion and professional judgment as to the steps that it takes and the adjustments that it makes for pupils” 28

Ground B – “The First-tier Tribunal erred in finding that there is no duty to achieve a goal or objective under the duty to make reasonable adjustments” 28

Ground C – “A finding that there was no dictation or copying and that D’s written work was her own was not open to the First-tier Tribunal on the evidence” 29

Ground D – “The overall conclusion that there was no breach of the duty to make reasonable adjustments was the result of a misdirection in law, because that duty does not merely require some steps to be taken, but all the steps as it is reasonable to have to take to be taken” 31

What happens next: why I have decided to set aside the decision and remit the case to a fresh tribunal 34

Introduction

This case concerns D, a child who is now aged 12 but who was at the time of the matters that were the subject of the claim to the First-tier Tribunal a pupil at a community primary school in Warwickshire. She has a diagnosis of Autistic Spectrum Disorder (ASD) and has had an Education Health and Care Plan (EHCP) made and maintained by the local authority (LA) under the Children and Families Act 2014 (CFA 2014) since December 2015.

In the proceedings below, D’s parents (hereafter referred to as KTS or the appellants) brought claims under the Equality Act 2010 (EA 2010) against the governing body of her primary school (the responsible body or RB). There were three heads of claim: two claims under s 15 of the EA 2010 that succeeded and one claim of failure to make reasonable adjustments under ss 20 and 21 of the EA 2010 that was dismissed by the Tribunal. The decision was issued on 16 May 2023 following a hearing on 17 April 2023.

The appellants appeal against the dismissal of the reasonable adjustments claim. Permission to appeal was granted on the papers by Deputy Judge Hocking on 11 October 2023 on four grounds as follows:-

Ground A – The First-tier Tribunal erred in finding that a school is entitled to take time and to exercise discretion and professional judgment as to the steps that it takes and the adjustments that it makes for pupils;

Ground B – The First-tier Tribunal erred in finding that there is no duty to achieve a goal or objective under the duty to make reasonable adjustments;

Ground C – A finding that there was no dictation or copying and that D’s written work was her own was not open to the First-tier Tribunal on the evidence;

Ground D – The overall conclusion that there was no breach of the duty to make reasonable adjustments was the result of a misdirection in law, because that duty does not merely require some steps to be taken, but all the steps as it is reasonable to have to take to be taken.

I received from the parties, both of whom were ably represented by experienced counsel, helpful skeleton arguments and detailed oral submissions. I intend no disservice to the quality of those submissions by not setting them out in detail in this judgment. Their submissions on the legal principles (on which the parties were in agreement) have been incorporated into my discussion of the applicable legal principles below. Their submissions on each of the individual grounds of appeal, I summarise below when dealing with each ground.