[2025] UKUT 048 (AAC)

The appellants brought claims to the First-tier Tribunal of disability discrimination by the RB against their daughter B in September and October 2022 when B was aged 5 years old and in Year 1 at the school. So far as relevant to this appeal, the appellants’ made two claims that the Tribunal classified as claims of unfavourable treatment because of something arising in consequence of disability contrary to s 15 of the Equality Act 2010 (EA 2010):

The appellants also made two claims of failure to make reasonable adjustments contrary to ss 20 and 21 of the EA 2010:

The RB did not admit disability or knowledge of disability so the First-tier Tribunal had to make findings on these points. The First-tier Tribunal concluded that B was disabled and that the RB had the requisite knowledge of disability. The First-tier Tribunal found at [17] that B was disabled by reason of difficulties with:

The Tribunal’s conclusions in this regard were based in large part on the evidence of two expert reports obtained by the appellants, that of Ms Dunn (Educational Psychologist) and Ms Roscoe (Occupational Therapist).

The Tribunal summarised the report of Ms Dunn as follows at [11] of its decision:

11.

Ms Dunn took information from the school who identified that [B] had the following difficulties:

a.

proprioception: bumping into things, being off-balance, limited coordination, having difficulty judging force, hugging tightly, and having pain when writing;

b.

communication and interaction: expressing feelings, needing help with social skills, having a poor understanding of social cues and the emotions of others;

c.

social, emotional and mental health: lashing out at children, being easily aroused and becoming dysregulated.

I note that Ms Dunn’s report also included the following:

The infant brain is highly reactive to stress, in particular in the first five years of life. In [B’s] profile this stress is presenting in an underdeveloped nervous system and she doesn’t ever really [know] how to manage the input from her senses and she sees the world as an unpredictable and sometimes seemingly unsafe place … sensory experiences and emotions are very closely tied. … If a child does not fully learn to manage the intense emotions and feels they experience, then the alarm systems in the part of the brain that control larger emotions become overactive and emotional outbursts/withdrawals are seen. Work needs to be done to help [B] regulate her emotions and to understand the social world alongside this. [B] can be hypervigilant of her environment where she is detecting threat in social environments and this leads to uncertainty and anxiety. This can happen when she meets changes too in the environment. [B] can sometimes try to control interaction and this can be seen in control over others which can be physical …

[B] is heavy handed and she does not know the level of force on play equipment or when touching others….

B’s autonomic nervous system is underdeveloped. The sympathetic branch of this system is overactive and the calm branch, the parasympathetic is underactive. This leads to an overly emotional response and a flight-freeze-fight response where [B] may be at risk of getting disproportionately distressed/withdrawn/shutdown or having a ’meltdown’ when the world overwhelms her.

Staff views … [B] needs help in social skills. [B] does not pay attention to what is in her way sometimes causing harm to her peers…

Staff report that [B] has been known to lash out at school pushing or hitting another child. This seems to be when [B] does not understand her level of force or she has not interpreted the social situation.

The Tribunal summarised the report of Ms Roscoe as follows at [12]-[13] of the decision:

12.

Roz Roscoe, Occupational Therapist, provided a report dated 12 January 2023. She identified that [B] had difficulties in the following areas:

a.

bilateral integration;

b.

postural stability;

c.

visual perception.

13.

Ms Roscoe said that such findings help to explain why [B]:

a.

finds self-care activities challenging;

b.

has concentration difficulties;

c.

requires considerable effort to follow instructions and learn new skills;

d.

often bumps into objects or people and find setting her work out on the page hard to master;

e.

is often unable to express her knowledge in legible written form or

fasten her buttons in the correct sequence.

14.

Ms Roscoe suggested that dyspraxia would be the best description of [B’s] presentation.

The Tribunal considered first the section 15 claim in respect of the FTE. It identified the reasons for the FTE as being the five incidents mentioned in the FTE letter, i.e. that B had:

There was no dispute that the FTE was unfavourable treatment. The Tribunal considered whether any of this behaviour had arisen in consequence of B’s disability, but concluded in relation to each incident that it had not.

The First-tier Tribunal dealt with the Kicking another child on the leg incident at[23]-[26]. The First-tier Tribunal noted that “B was said to be unable to provide an explanation for the incidents and that they were unprovoked”, but that later she admitted to her parents having kicked another child in the leg when lined up and not during an interaction with that child. The First-tier Tribunal recorded Mr B’s explanation that the incident occurred when another child “kicked of her shoe which had hurt [B]” and that in his view “the actions of his daughter arose from frustration, were retaliatory and not an unprovoked or random act”. The Tribunal noted that B “did not give this explanation to Mrs Parker-McMahon at the time. [B] is described as an honest girl who will cry and complain if she feels that she has been treated badly, but will go quiet if she believes she has done something wrong”. The Tribunal then concluded as follows at [26]:

The tribunal can identify nothing to link this behaviour to [B’s] disability. It is not her physical disability, because she acknowledges that she deliberately kicked the girl, rather than inadvertently doing so as a result of poor balance or proprioception. There is no evidence to show that her actions arose from her social difficulties. She knew what she was doing, and said so. She admitted doing it when asked about it by a teacher. It is unclear if there was in fact any link with any earlier actions of the other girl, but if it was, on [B’s] own evidence to her father, it was retaliation. These things do occur, but there is insufficient evidence to show on the balance of probabilities that it is linked to [B’s] social impairment.

The Tribunal dealt with Scratching a child’s face at [27]-[29]. The Tribunal noted that B was unable to provide an explanation for her actions and that there was “no evidence that, at the time of the incident, she said that it was an accident, that she did not mean to, nor did she cry and/or complain that she was being wrongly treated”. Mr B’s explanation was that another child had been teasing B about a paper cut he had which had drawn blood, that she had repeatedly asked him to stop and that when he did not do so, she attempted to push his hand away, accidentally pushing in the face and causing him a small scratch. Mr B speculated this was due to her dyspraxia. However, the Tribunal did not accept Mr B’s explanation because there was “a conflict between [B’s] failure to explain her actions when asked at school ([despite being] giving the opportunity to explain her actions and to reflect upon them) and the explanation given at some later date”. The Tribunal concluded:

Had she said so at the time and there had been some consistency, the tribunal might have found that the incident occurred accidentally, but there is insufficient evidence to overturn the conclusions of the Responsible Body reached at the time on the evidence available to it, or indeed find on the balance of probabilities that the incident occurred as a result of [B’s] physical disability.

The Tribunal dealt with Swinging a child by the dress at [30]-[33]. It noted that the RB’s evidence was that this incident was unprovoked and B was unable to explain the reasons for her actions when asked to reflect. It recorded that Mr B’s explanation was that she grabbed another child but did not mean to hurt them. The Tribunal accepted the evidence of a member of staff who witnessed the incident that B’s actions were “unprovoked” and not as a result of “skipping too fast” or “losing her balance”. The Tribunal concluded there was insufficient evidence that [B’s] behaviour arose from her dyspraxia. It made no findings about causal link to her social impairment on the basis that this had not been alleged by the appellants in relation to this incident.

The Tribunal dealt with Slapping a child on the arm and the chair incidents at [34]-[40]. Again, it noted that B had been unable to explain why she had done those things at the time. Mr B’s evidence based on what B had said to him was that B was reacting to a child kicking her under the table, although the RB’s evidence that the child who B slapped was not the same as the child from whom she pulled away the chair. The Tribunal continued: “Had [B] been upset … this might have indicated that [B] felt she was being treated badly, but there is no such evidence. She had the opportunity to ask for help, but did not do so. It should be noted that if the problem arose from the actions of one child, [B] had three opportunities to speak to a member of staff after the slapping incident, and the two opportunities to do so after the chair incident”. Because B’s explanations to her father Mr B were given five or more days after the events, the Tribunal gave these explanations “less weight than the responses given at the time and the observations of adult staff and others”. The Tribunal concluded:

40.

For these reasons, the tribunal finds that there is insufficient evidence to show on the balance of probabilities that the actions of [B] either in relation to the slap or the pulling away of the chair arose in consequence of her disability. There is no suggestion that her physical disability came into play here, and nothing to specifically link it to her social impairment rather than the sort of bad behaviour that any child might present with.

41.

In reaching this decision, the tribunal takes into account the lack of any evidence of behaviour to such an extent in the previous year. The only evidence available to the tribunal is that [B’s] presentation in Reception was at a much lower level, and that the behaviour in the first week of the autumn term of 2002 was not characteristic of [B] normal behaviour.

42.

Consequently, the tribunal finds that Mr and Mrs B’s claim that the RB unlawfully discriminated against [B] by excluding her for 1 day on 9 September 2022 fails because they are unable to show the link between the actions of the Responsible Body and [B’s] disability.

The claim accordingly failed. The Tribunal did not go on to consider whether, if it was wrong there was no link to B’s disability, the FTE had been justified for the purposes of section 15(1)(b) of the EA 2010.

As to the exclusion from the ASC, the First-tier Tribunal noted that the RB had admitted that it had excluded B in part because of her behaviour and because it considered “it was unfair to put her in a situation where she could potentially hurt others” ([44]-[46]). The Tribunal concluded at [46] that “There is no further evidence to show that the unfavourable treatment of the RB arose because of something in consequence of [B’s] disability. The evidence is that it was [B’s] behaviour as we have already set out which resulted in the exclusion from the [ASC]. There is nothing to link that behaviour with her disability, and therefore this aspect of the claim also fails.”

The claim in relation to B being outside the Headteacher’s office without a member of staff failed because the Tribunal concluded that it had only been for a few minutes and was not a punishment so that it was not unfavourable treatment for the purposes of section 15 EA 2010 (the Tribunal having treated it as a section 15 claim despite it being identified previously in case management directions as only a reasonable adjustments claim: see p 39 First-tier Tribunal Bundle). The Tribunal also found that it was not a provision, criterion or practice for the purposes of a reasonable adjustments claim, and nor was there a practice of not providing Teaching Assistant support for the after-school club. The reasonable adjustments claims accordingly failed.