[2024] UKUT 139 (AAC)

Before dealing with the specific grounds of appeal, I need to make some preliminary observations about the Tribunal’s self-directions in this case at [30]-[33] of its decision as to the interface between the EA 2010 and the CFA 2014. As Deputy Judge Hocking recognised when granting permission, those self-directions are out of line with the proper legal approach as I have set it out above, which does not require any particular caution in applying the EA 2010 to a child with an EHCP.

It seems to me that the Tribunal in these proceedings, faced with a case that was being presented to it as a case of “ongoing failure to make reasonable adjustments”, without a focus on specific incidents of alleged failure to make reasonable adjustments, misidentified the reasons why it needed to approach this case with caution. In my judgment, caution was required not because of the interface between the CFA 2014 and the EA 2010, but because there had not been sufficient clarification of the issues at the start of the hearing, in accordance with the guidance I have set out above.

The Tribunal understandably felt cautious because it was faced with a case that in some ways sought to put the whole of D’s school provision ‘on trial’, by reference only to ‘examples’, none (or few?) of which were said to constitute specific failures to make reasonable adjustments on particular dates. In fact, the appellants had identified some specific failures, but these were, it seems to me, somewhat lost in a more cloudy case about ‘general failure’ by the school in relation to provision for D. The case remained somewhat cloudy on this appeal until Mr Broach, when pressed by me, pointed to [25]-[27] and [29] of the First-tier Tribunal’s decision where the First-tier Tribunal has recorded its understanding of the appellant’s case. I observe that, although these paragraphs do refer to some specific adjustments (i.e. multi-sensory approach, visual aids, getting D to write short, simple text), they also include much more generic complaints about D being ‘too reliant’ on adult support, use of copying/dictation, and failure to follow (unspecified) advice of Ms Pedrosa and Ms Robinson. He also referred to [15]-[18] of the appellant’s Grounds of Appeal which in turn refer to the appellant’s further particulars and assert that there was ‘no differentiation’ in relation to the ‘teeth lesson’ and a failure to provide her with a teeth model. So far as I could tell from Mr Broach’s responses during submissions, the appellants (who represented themselves in the proceedings up to the actual final hearing before the First-tier Tribunal) had nowhere set out anything that purported to be a complete and specific list of adjustments sought.

The appellants had, of course, set out in their further particulars document four specific incidents of failures to make reasonable adjustments that could have formed a good basis from which to identify specific issues for consideration at the hearing, but it seems to me that they had been deterred from pursuing that relatively clear case by the RB in its response taking points about time limits – points about time limits which, I observe, failed to address the relevant law in relation to time limits for reasonable adjustments claims as I have set it out above, including failing to mention that even if a claim is ‘out of time’, the Tribunal has a general discretion to extend time.

As I have detailed above when setting out the relevant legal principles, it is in my judgment incumbent on a Tribunal faced with a case being thus presented, even where a party is legally represented, to exercise its case management powers to achieve clarity as to the legal issues through case management either in advance of, or at the start of the hearing. That was essential if the parties were to focus their evidence, and the Tribunal to focus its decision on the right matters. Clarity was required on each of the elements of the reasonable adjustments claim in line with the legal principles I have set out above, i.e. the PCP needed to be identified, along with the nature and extent of the specific disadvantage suffered (or claimed to be suffered) by D, and the specific reasonable adjustments sought needed to be identified, together with the date (or dates) when it was said that those adjustments should have been made.

Those preliminary observations aside, I turn to the specific grounds of appeal. I take the first two together because of the similarity of the issue that arises in relation to each of them.