[2025] UKUT 048 (AAC)

For the reasons set out above, I am therefore satisfied that the decision of the First-tier Tribunal involved material errors of law and I set it aside. Mr Edwards for the appellants invited me to re-make the decision myself. However, it is not appropriate for me to do so for two reasons:-

First, while the errors I have identified in the Tribunal’s decision may appear to point towards there being only one permissible conclusion in relation to the question of whether B’s behaviour was causally related to her disabilities, that is not necessarily the case. While I find it difficult to see how any Tribunal could properly conclude that the burden of proof had not shifted on this issue in this case, it remains possible that a Tribunal, properly directing itself on the law, and taking account of all the relevant evidence, might nonetheless conclude that there was not in fact a causal link in relation to at least some elements of the behaviour.

Secondly, the RB in this case has always had a defence of justification that it wishes to run. That will require further findings of fact as to the aims the RB was seeking to achieve, how effective the exclusions were at achieving those aims, and the impact of the exclusions on B and then the balancing of those factors in a proportionality assessment. All of that evidence was (or should have been) before the First-tier Tribunal at the hearing, the Tribunal did not deal with the question of justification in its decision, although it would have been open to it do so as an ‘in the alternative’ finding notwithstanding its conclusion on the causation issue. This is unfortunate because, as I observed in London Borough of Islington v A Parent [2024] UKUT 252 (AAC) at [88], “where a First-tier Tribunal has heard evidence on a point of substance, it should normally make findings on that evidence so that in the event of an appeal such as this time cost and public resources do not need to be wasted in an unnecessary rehearing”. In this case, if the Tribunal had gone on to consider justification, and found the treatment justified then (provided that conclusion was not ‘infected’ by the prior errors in relation to causation), permission to appeal would probably have been refused on the basis that any prior error could make no material difference to the outcome.