[2024] UKUT 139 (AAC)

Permission was granted on the papers by Deputy Judge Hocking, who (having set out the grounds of appeal) observed as follows:-

10.

As I will give permission to appeal it is not necessary for me to discuss these grounds at length. It seems to me the fundamental issue in the appeal, is: was the FtT’s treatment of the interaction between the legal framework for special educational needs under the Children and Families Act 2014, and the duty to make reasonable adjustments under the Equality Act 2010 legally correct.

11.

It seems to me at least arguable that the FtT used the Children and Families Act 2014 to “read down” the reasonable adjustment duties in the Equality Act, (with the results argued for in appeal points a, b and d above) and again at least arguable that on the facts of this case that was an error of law.

12.

[D’s] EHCP specifies as part of her special educational provision that she “requires a differentiated curriculum (in terms of pace, content and delivery) which emphasises opportunities for learning through practical, visual and play based activities supported by an individualised timetable, identifying the differentiated teaching and learning activities she needs.” [D requires] “Different learning materials as required by her action plan”.

13.

This is precisely what [D’s] parents say is not happening.

14.

The FtT say: In this context, “we are cautious about the application of the disability discrimination provisions in the context of the school’s approach to making [D’s] special educational provision. In particular, we are cautious about finding that there has been disability discrimination simply because there is disagreement between professionals as to the effectiveness of the special educational provision that is made”

15.

It is arguable that that statement (and the rest of the rather short discussion of the point) does not do justice either to the legal or the factual issues in the case.

16.

As to the legal issues I would accept that caution might very well be indicated if a child had been assessed under the Children and Families Act 2014, and special educational provision was set out in an EHCP, and then the child’s parents used the reasonable adjustments duties in the Equality Act 2010 to argue that additional provision over and above that included in the EHCP was required. But that is not [D’s] position. Her position is that what is required is that which is set out in her EHCP, and that is not being delivered. It is at least arguable that the provision identified as special educational provision in an EHCP is in this case also provision that would be a reasonable adjustment to be made under s.20 of the Equality Act, as read in light of paragraph 2(3)(b)(ii) of schedule 13 to that Act, and that no particular caution is needed in applying the Equality Act in this situation.

17.

As to the factual issues the FtT’s conclusions are expressed in only four paragraphs. It is arguable that the reasons given are insufficient to “sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusion” (re B (appeal: lack of reasons) [2003] FLR 1035. In particular I note the following paragraph:

Ms Underwood provided professional advice in November 2022 as part of the process of reviewing [D’s] EHCP. That report gives an overview of [D’s] progress up to that point and makes recommendations for changes to her EHCP, for example, by the provision of overlearning. Her observations are different from those of other professional witnesses and generally more positive about the progress that [D] was making. That advice, along with the advice of other professionals (including Ms Pedrosa and Ms Robinson), would ordinarily be factored into the review of [D’s] EHCP, which could lead to additional or different support for [D], drawing on what has worked well and what further steps are needed

18.

That seems to me to be arguably a failure to “take into account and/or resolve conflicts of fact or opinion on material matters” (per DC v London Borough of Ealing). The disadvantage that was being alleged to be caused by the application of the unadjusted provision, criterion or practice was a failure to make academic progress. That might be a difficult issue to resolve but, if as seems possible the FtT did not attempt to resolve it because it took the view the issues could only be correctly ventilated as part of a review of the EHCP that would arguably be a failure to apply the Equality Act.