[2024] UKUT 139 (AAC)

Sections 20 and 21 of the EA 2010 provide (so far as relevant to education):

By s 212(1), “substantial” in s 20 (and elsewhere in the Act) means “more than minor or trivial”.

By s 85(6) of the EA 2010 a duty to make reasonable adjustments applies to the responsible body of a school. Paragraph 2 of Schedule 13 to the EA 2010 provides:

Section 136 of the Act, headed “Burden of proof”, provides:

There is no dispute between the parties as to the general legal principles applicable to considering claims of failure to make reasonable adjustments. They have in particular referred me to my own recent decision in SS v Proprietor of an Independent School [2024] UKUT 29 and also to the High Court decisions in R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Fordham J) and University of Bristol v Abrahart [2024] EWHC 299 (Linden J).

In all claims of failure to make reasonable adjustments, the Tribunal needs to consider the following stages:

Linden J’s judgment in the Abrahart case concerns the tragic death by suicide of a student at Bristol University who suffered from depression and Social Anxiety Disorder. At [148]-[171] Linden J deals with the reasonable adjustments claim and I draw the following points of general principle from those paragraphs that are also relevant to the present case:

From Fordham J’s judgment in Rowley (which was concerned with the provision of British sign language interpretation services for the government’s live Covid-19 pandemic briefings), Mr Broach draws the further point that, in order to determine a reasonable adjustments claim, the Tribunal may need to decide whether the adjustment sought by the claimant is reasonable, even where the respondent is already making some, ostensibly reasonable, adjustments. As Fordham J put it in that case at [32], drawing in turn on the decision of the Court of Appeal in Road v Central Trains [2004] EWCA Civ 1541 at [13] and the EHRC’s Statutory Code of Practice on Services, public functions and associations:

The Court may well be considering a range of steps. … They may be steps which are already in place, steps advocated by the claimant as necessary, or by the defendant as sufficient. They may be steps which could operate in combination, or steps which are alternatives. The Code (§7.47) refers as examples to “the provision of a sign language interpreter, lip-speaker or deaf-blind communicator”. Using its “large public conference” example (§7.34) the Code illustrates a combination of steps for deaf delegates who use BSL (§7.38): the provision of BSL interpreters, who are in a well-lit area, with the option of those delegates being seated near and in full view of them. In some cases the ‘superiority’ of a step when compared with another – in terms of practical accessibility and the legislative policy of closest reasonably approximated access (§20 above) – will lead the Court to reject the ‘lesser’ step as not being a reasonable step. That was the position in Roads where the Ely alternative was not reasonable by comparison with the free taxi alternative. So: it “may not be enough” that one solution “if it stood alone” would satisfy the statutory duty; the solution does not ‘stand alone’ where there are “a range of solutions”; the statutory duty “makes comparison inescapable” where the defendant’s “proffered solution” is said by the claimant “not to be reasonable precisely because a better one, in terms of practicality or of the legislative policy, is available”; but the statutory duty “does not require the Court to make nice choices between comparably reasonable solutions”. All of these points derive from Roads at §13. The Code puts the position this way (Code §7.35): “Where there is an adjustment that the service provider could reasonably put in place and which would remove or reduce the substantial disadvantage, it is not sufficient for the service provider to take some lesser step that would not render the service in as accessible a manner”.

In other words, the fact that some adjustments have already been made does not mean that the statutory duty does not require further or different adjustments. In all cases, unless the adjustments already in place have removed the substantial disadvantage so as to relieve the respondent of the duty to make further adjustments, the reasonableness of the adjustments sought by the claimant will need to be evaluated and consideration given to whether the adjustments sought stand a ‘real prospect’ of removing or further reducing the substantial disadvantage than the adjustments already in place, whether alone or in combination.

The EHRC’s Technical guidance for schools in England (updated September 2023) makes a similar point at paragraphs 6.37 and 6.39 (I omit paragraph 6.38 which does not bear on the present appeal and, it appears to me, may contain a drafting error):

6.37

It is unlikely to be reasonable for a school to have to make an adjustment involving little benefit in reducing the disadvantage experienced by the disabled pupil, even if the pupil requests this. If this is the only possibility, however, of avoiding the disadvantage and there is a prospect of it having some positive effect, then it may be reasonable for the school to have to take the step.

6.39

However, if an adjustment, when taken alone, is of marginal benefit but may be one of several adjustments that, if grouped together, would be effective in overcoming the disadvantage, in that case, it would be reasonable for the school to make the adjustment.

Mr Broach for the appellants has also drawn my attention to paragraph 6.23 of the Technical Guidance which provides:

6.23

The purpose of taking the steps is to ensure that disabled pupils are not placed at a substantial disadvantage compared to non-disabled pupils. The duty to make reasonable adjustments equates to ensuring that steps are taken to provide the best possible education for disabled pupils.

I observe that the suggestion in that paragraph that the duty to make reasonable adjustments is a duty to provide “the best possible education for disabled pupils” should be regarded as aspirational. The Guidance cannot alter the effect of the statute, which provides a duty to make reasonable adjustments where disabled pupils are substantially disadvantaged in comparison to non-disabled peers. It is not a duty to provide “the best possible education”, although it may be hoped that compliance with the duty will achieve that result.

Those, then are the relevant general principles. However, this case, like SS, raises the question of the inter-relationship between the EA 2010 and the Children and Families Act 2014 (CFA 2014). At paragraphs 74-77 of SS I gave general guidance on this topic, insofar as was relevant to the matters to be considered by the Tribunal on remission in that case. The issue in that case (so far as reasonable adjustments was concerned) was whether, and to what extent, a ‘mainstream’ independent school might be expected to make reasonable adjustments to accommodate a disabled pupil in respect of whom an EHCP was made and maintained by the local authority naming another school. The guidance I gave at paragraph 77 was obiter, but the parties in this case were content that it is correct and both relied on it. Not all the points that I made in that paragraph are of relevance to this case, but the following are (with some minor amendments to render the paragraphs of more general application):

a.

The EA 2010 contains no exception from the responsible body’s duty to make reasonable adjustments for a pupil with an EHCP.

…

e.

Although the responsible body of an independent school is not subject to the duty that applies to [non-independent] schools [and other institutions] under s 66 of the CFA 2014 to secure that special educational provision is made where it is called for by the pupil’s special educational needs, the framework under the CFA 2014 is such that [no school] is under a duty under that Act to secure that the provision in an EHCP is made for a child – that duty is on the local authority: see generally RD and GD v The Proprietor of Horizon Primary (SEN) [2020] UKUT 278 (AAC) at [68]-[71] per Judge S M Lane. However, the duty to make reasonable adjustments applies to all schools. The framework of provision under the CFA 2014 is relevant to considering what is reasonable by way of adjustments under the EA 2010, but it is merely one factor to consider, it carries no special weight (cf the similar point made by Judge S M Lane in RD and GD v The Proprietor of Horizon Primary (SEN) [2020] UKUT 278 (AAC) at [84]-[85]).

f.

In all cases, it will be a question of considering what is reasonable in all the circumstances in the light of the nature and extent of the substantial disadvantage suffered by the child at the school the child attends, in comparison to non-disabled children.

g.

The relevant circumstances to take into account will generally include the cost of the adjustments, how effective they will be, the school’s resources, the reasons why the child is at the school and the nature and availability of support from a local authority through an EHCP. The Tribunal is likely to find it helpful to consider the Equality and Human Rights Commission Guidance on Reasonable Adjustments for Disabled Pupils (2019) (the EHRC Guidance) which identifies other factors that may be relevant in the particular case. Among other things, that guidance explains that, “The extent to which special educational provision will be provided to the disabled pupil under Part 3 of the Children and Families Act 2014” is a relevant factor in deciding whether it is reasonable for a school to make a particular adjustment, and notes, “It is more likely to be reasonable for a school with substantial financial resources to make an adjustment with a significant cost than for a school with fewer resources”. It needs hardly be said that some independent schools will have more financial resources than other independent schools, and the financial resources of independent schools are likely to be differently structured, and sometimes greater, than those of maintained schools.

…

i.

The focus under the EA 2010 must be on the reality. While it may be that more or better provision ought to be being made for a child by the local authority under an EHCP, if that is not in fact happening in a particular case, the Tribunal will need to decide whether it would be reasonable for the school (of whatever type, whether independent or maintained) to put that support in place. How long it may be necessary for a school to ‘bridge a gap’ of that sort will be a factor for the Tribunal to take into account in deciding what is reasonable.

j.

It is only if appropriate support is already in place in the school in question through an EHCP, so that the child is no longer under a substantial disadvantage at that school, that the responsible body of a school is relieved of its duty to make reasonable adjustments. This point is also made in the EHRC’s [2019 Guidance on making reasonable adjustments for disabled pupils] (although this is a passage in the Guidance that it is easy to misread as suggesting – incorrectly - that once an EHCP is in place the duty to make reasonable adjustments falls away):

There is a significant overlap between those pupils who are disabled and

those who have SEN.

Many disabled pupils may receive support in school through the SEN

framework. In some cases, the substantial disadvantage that they

experience may be overcome by support received under the SEN

framework and so there will be no obligation under the Act for the school

or local authority to make reasonable adjustments.

…

To those points, I need to add the following, which deal more directly with the situation in the present case where the claimed reasonable adjustments overlap with the provision that is specified in the EHCP. For ease of reference, I will continue the lettering of the sub-paragraphs from paragraph 77 of the SS case so that if need be these can be referred to as a composite list of principles. At paragraph 77 of the SS case I ended with sub-paragraph l., so will continue with m.:

The latter point brings me to another point of general principle in relation to reasonable adjustments claims that also has a bearing on the present case. The First-tier Tribunal hearing a claim under the EA 2010 is not exercising the same sort of inquisitorial jurisdiction that it exercises when dealing with appeals under s 51 of the CFA 2014 (cf, for example, AJ v London Borough of Croydon [2020] UKUT 246 (AAC) at [140]-[141]), but is adjudicating on a dispute between adversarial parties in the same way as an Employment Tribunal does for employment claims under Part 5 of that Act, or the County Court for a goods and services claim under Part 3. However, it is nonetheless required, in furtherance of the overriding objective, and to ensure that the hearing is fair and that it as the Tribunal is able to discharge its own duty to determine the claim brought in accordance with the facts and proper legal principles, to take appropriate steps to ensure that the legal issues in a case are identified at the outset. This is necessary so that the claimant is able properly to put forward their case, the respondent knows the case it has to meet, the hearing can focus on the relevant evidence and submissions and the Tribunal knows what issues it has to decide.

In a claim under the EA 2010, the First-tier Tribunal will need to identify with the parties either in a case management hearing, and/or at the start of a final hearing, what the legal issues are in the case. Especially (but not only) where a party is unrepresented, this may include putting legal labels on the facts raised by the claimant, such as identifying (in discussion with the parties) the PCP, the nature of the disadvantage and the particular adjustments sought.

I derive these observations about case management from the many cases in the employment context that give guidance on the extent to which it is appropriate for the Tribunal (impartially, and without ‘stepping into the arena’) to assist the parties in identifying the legal issues that arise on the factual cases that they are seeking to present, and also the evidence and submissions that are relevant to those legal issues: see, for example, Drysdale v Department of Transport [2014] IRLR 892 at [49]; Mervyn v BW Controls Ltd [2020] EWCA Civ 393, [2020] ICR 1364 at [38]-[45] and Saha v Capital Plc [2018] 11 WLUK 528 per Slade J at [37]-[42] (the latter emphasising Mummery LJ’s dictum in Parekh v London Borough of Brent [2012] EWCA 1630 at [31] that the Tribunal is not bound by what the parties consider the issues in a case to be if that would “impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence”).

The guiding principle, always, of course, is fairness: a Tribunal that considers the parties require assistance in putting legal labels on their factual cases must always raise that with the parties and should normally formulate the list of issues by agreement with the parties. Although good case management may sometimes require the Tribunal to make a ruling as to what the issues are that it will consider, the Tribunal should never take over the running of a party’s case. It should not seek to identify as legal claims or defences issues that do not ‘shout out’ from the pleadings (to use the language of Auerbach J as adopted by the Court of Appeal in Mervyn at [42]). And if a party does not wish to pursue a particular claim or defence that the Tribunal has identified as arising on the facts, the Tribunal should simply record that in its decision.

Another matter (relevant to the present case) that a Tribunal may need to consider of its own motion, because it is a jurisdictional issue under the EA 2010, is time limits. These work somewhat differently in relation to claims of failure to make reasonable adjustments than they do in relation to some other types of discrimination under the EA 2010. That is because claims of failure to make reasonable adjustments are usually claims about discriminatory omissions rather than discriminatory acts. Paragraph 4 of Schedule 17 to the EA 2010 contains specific provision in relation to discriminatory omissions as follows (emphasis added):

4 Time for bringing proceedings

(1)

Proceedings on a claim may not be brought after the end of the period of 6 months starting with the date when the conduct complained of occurred.

(2A)  If, in relation to proceedings or prospective proceedings on a claim under paragraph 3 or 3A, the dispute is referred for resolution in pursuance of arrangements under paragraph 6C before the end of the period of 6 months mentioned in sub-paragraph (1), that period is extended by 3 months.

(3)

The Tribunal may consider a claim which is out of time.

(4)

Sub-paragraph (3) does not apply if the Tribunal has previously decided under that sub-paragraph not to consider a claim.

(5)

For the purposes of sub-paragraph (1)—

(a)

if the contravention is attributable to a term in a contract, the conduct is to be treated as extending throughout the duration of the contract;

(b)

conduct extending over a period is to be treated as occurring at the end of the period;

(c)

failure to do something is to be treated as occurring when the person in question decided on it.

(6)

In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—

(a)

when P acts inconsistently with doing it, or

(b)

if P does not act inconsistently, on the expiry of the period in which P might reasonably have been expected to do it.

Save that paragraph 4(3) provides a general discretion to extend time (see RD and GD v The Proprietor of Horizon Primary (SEN) [2020] UKUT 278 (AAC)) rather than a specific statutory ‘just and equitable test’, it is in materially identical terms to s 123 of the EA 2010 which sets out the time limits for bringing claims under the Act to the Employment Tribunal. I see no reason why in the education context a different approach should be taken to time limits where the statutory provision is the same (and I note that that was also the view of Judge Freer in his recent decision in The Governing Body of School T v AA and RA [2023] UKUT 311 (AAC)).

A number of authorities in the employment context have discussed how time limits apply to claims of failure to make reasonable adjustments. In Humphries v Chevler Packaging Ltd (UKEAT/0224/06) at [24] the EAT held that a failure to make a reasonable adjustment is usually an omission and that time begins to run when a respondent decides not to make the reasonable adjustment or is taken to have so decided applying the provisions equivalent to paragraphs 4(5) and (6) of Schedule 17. The Court of Appeal considered the question further in Kingston upon Hull City Council v Matuszowicz [2009] ICR 1170, CA. Where a respondent is not deliberately failing to comply with the duty and the omission is due to lack of diligence or competence or any reason other than conscious refusal, it is a ‘continuing omission’ to which the Court of Appeal held the equivalent of paragraph 4(5)(c) applies rather than a ‘continuing act’ to which the equivalent of paragraph 4(5)(b) applies. Accordingly, for the purpose of the limitation period, the Court of Appeal observed that the relevant date is in one sense an artificial date. In the absence of evidence as to when the omission was decided upon, paragraph 4(6) provides two alternatives. The first is when the respondent does an act inconsistent with doing the omitted act. The second requires an inquiry into when a respondent might reasonably have been expected to do the omitted act if it was to be done. Matuszowicz was followed by the EAT (Slade J) in Olenloa v North West London Hospitals NHS Trust (UKEAT/0599/11). Slade J emphasised at [32] the difficulty of determining the ‘artificial’ Matuszowicz date without hearing all the evidence and indicated that in such cases time limits may need to be decided only after the final hearing and not as a preliminary issue.

It is also worth adding, in view of the ‘ongoing’ nature of the claim in this case, that it seems to me that it is correct that, as Mr Broach acknowledged in the course of argument, a claim under the EA 2010 can in principle only relate to matters that occurred prior to the date on which the claim was brought (in this case, 12 September 2022), unless permission is given to amend to include matters occurring after that date. That is the general understanding of how claims work in the employment context: see Prakash v Wolverhampton City Council (UKEAT/0140/06/MAA) (albeit dealing with a claim under the Employment Rights Act 1996) and see also Galilee v Commissioner of Police of the Metropolis [2018] ICR 634 (dealing with the slightly different point that amendments to add claims after the commencement of proceedings, whether concerning things that happened before or after commencement of the proceedings, are to be treated as brought at the time of the application to amend). Accordingly, anything happening after the date of claim could not form part of the claim in this case unless the Tribunal gave permission to amend the claim (albeit that evidence of what happened after 12 September 2022 could of course be adduced if it was relevant to the claim made in respect of the period before that date).