[2024] UKUT 406 (AAC)

The School’s case before the First-tier Tribunal indicated that, while the diagnoses of Drs Vassiliadou and Nwagbogu were not ‘formally’ conceded, for pragmatic reasons they would not be challenged. In terms of how this influenced the Appellant’s presentation of her case, the only reasonable reading of the School’s stance was that they had, in practice, conceded the experts’ diagnoses. The School’s stance was effectively reiterated at a case management hearing on 10 January 2023 when they confirmed they did not wish to cross-examine either doctor. The Tribunal’s case management directions gave no indication that they had doubts about the correctness of either’s diagnosis. The Tribunal unfairly appeared to endorse the parties’ agreed approach and then, without warning, proceeded to reject both diagnoses.

The School’s argument that disability was not conceded misunderstands the 2010 Act’s concept of disability. By disputing the ‘adverse impact’ element of the definition of disability, the School could not be taken also to have disputed the impairment / diagnostic element of the definition.

Where a tribunal wishes to reject the evidence of an expert, there is a duty to provide a ‘cogent reasoned rebuttal’ that understands and addresses that evidence (e.g. Flannery v Halifax Estate Agencies [2000] 1 W.L.R. 377, CA). In respect of both Dr Vassialadou’s and Dr Nwagbogu’s evidence, the only reason given by the Tribunal for rejecting their diagnoses was that they had not contacted the School directly. This was insufficient. If the experts had considered they had insufficient information from the School, on which to base a diagnosis, they would have been professionally obliged to say so. But they did not. It was perverse for the Tribunal to have given no weight to unchallenged expert reports on the ground of insufficient information when it had not questioned the experts.

In particular, the Tribunal gave inadequate reasons for rejecting Dr Vassialadou’s diagnosis of D, which was based primarily on clinical observations. The doctor observed several behaviours that were consistent with ASD. The Tribunal failed to explain why the absence of evidence from the School undermined those observations.

The School’s argument that Drs Vassialadou and Nwagbogu breached their professional duties is improper and it is unfair to raise it for the first time in appeal proceedings before the Upper Tribunal. If the School held that view, they should have sought their attendance for cross-examination before the First-tier Tribunal at which such allegations could have been put to the clinicians.

The School argue that, even if the Tribunal erred in rejecting the experts’ diagnoses, it was an immaterial error in the light of its ‘adverse impact’ findings. This is unrealistic. The two aspects of the definition of disability overlap in practice. The Tribunal’s rejection of D’s and S’s diagnoses must have influenced their consideration of whether any impairment had a substantial and adverse impact on ability to carry out normal day-to-day activities.