[2025] UKUT 048 (AAC)

Appeal No. UA-2024-000876-HS

RULE 14 Order: Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is prohibited for any person to disclose or publish any matter likely to lead members of the public to identify the persons referred to as B and Mr and Mrs B in these proceedings. This order does not apply to any person exercising statutory (including judicial) functions where knowledge of the matter is reasonably necessary for the proper exercise of the functions.

Between:

MR AND MRS B

Appellants

- v -

THE PROPRIETOR OF ST DOMINIC’S GRAMMAR SCHOOL

Respondent

Before: Upper Tribunal Judge Stout

Mode of hearing: By video (CVP)

Representation:

Appellant: Denis Edwards (counsel)

Respondent: Russell Holland (counsel)

On appeal from:

Tribunal: First-Tier Tribunal (Health Education and Social Care) (Special Educational Needs and Disability)

Tribunal Case No: EH860/23/00057

Tribunal Venue: By video

Decision Date: 12 December 2023

SUMMARY OF DECISION

DISABILITY DISCRIMINATION IN SCHOOLS (89)

This appeal concerned the school’s decision to exclude the appellants’ five-year-old daughter (B) from after school club and also to impose a fixed-term exclusion for physical behaviour towards others that the appellants contended was related to her disabilities (a physical impairment of dyspraxia and a mental impairment of social emotional and mental health difficulties (SEMH)). The First-tier Tribunal dismissed their claim that the school had discriminated against B contrary to section 15 of the Equality Act 2010 (EA 2010) on the basis that it was not satisfied that they had shown on the balance of probabilities that there was a causal connection between B’s behaviour (for which she was excluded) and her disabilities.

The Upper Tribunal holds that the First-tier Tribunal erred in law, in particular by: (i) failing to take account of expert evidence to the effect that B’s SEMH could manifest in her lashing out at children, being easily aroused and becoming dysregulated; (ii) failing to decide for itself, objectively, whether there was a causal relationship between the behaviour for which she was excluded and the disabilities; (iii) perversely treating witnesses who gave evidence about factually what happened in each incident (including B herself) as giving evidence as to whether there was a causal relationship with disability; and, (iv), failing to direct itself to, and properly apply, the shifting burden of proof in section 136 of the EA 2010.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION