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The decision of the Upper Tribunal is that the decision of the First-tier Tribunal involved an error of law
The decision of the Upper Tribunal is that the decision of the First-tier Tribunal involved an error of law.
The decision of the First-tier Tribunal is set aside.
The case is remitted for re-hearing before a new panel of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
Mr and Mrs B (“the appellants”) appeal against the decision of the First-tier Tribunal issued on 12 December 2023. Permission to appeal was refused by the First-tier Tribunal in a decision dated 3 June 2024, but granted by me following an oral hearing on 30 September 2024.
The appeal challenges the First-tier Tribunal’s decisions that: (i) a fixed-term exclusion that the responsible body of the respondent school (“the RB”) imposed on the appellants’ child (who I will refer to as “B”) in the autumn term of 2022; and (ii) an exclusion from the school’s After School Club (ASC) were not acts of unlawful discrimination because of something arising in consequence of B’s disability contrary to sections 15 and 85(2) of the Equality Act 2010 (“EA 2010”).
The grounds on which I granted permission to appeal were as follows:-
Ground 1 – The First-tier Tribunal perversely concluded and/or failed to take into account relevant evidence in concluding and/or provided inadequate reasons for concluding that the behaviour for which B was excluded was not ‘something arising in consequence of her disability’ for the purposes of section 15 of the EA 2010.
Ground 2 – The First-tier Tribunal erred in law by failing properly to apply the shifting burden of proof in section 136 of the EA 2010.
The parties have been represented before the Upper Tribunal by the same counsel as represented them before the First-tier Tribunal. Both counsel provided skeleton arguments and made helpful oral submissions, for which I am grateful.