[2025] UKUT 048 (AAC)

In granting permission to appeal on this ground, I drew together a number of the appellants’ arguments and identified four specific respects (a., b., c. and d.) in which I considered it arguable that the Tribunal had erred in law. The parties have duly focused their arguments on those points, but in reaching my decision I have found it convenient to deal compendiously with points a. and c., and as a result points b. and d. have to an extent fallen away.

Point a. concerned the Tribunal’s approach to the expert evidence as regards the question of whether the behaviour for which B was subject to the FTE and excluded from the ASC arose in consequence of her disability or not. Point c. concerned whether the Tribunal had wrongly taken account of the views of five-year-old B and other witnesses about the motivation for B’s conduct in deciding whether it was causally related to her disability.

As is clear from the judgment of Simler J (as she then was) in Pnaiser above, and as the parties agree, the question of whether or not B’s behaviour was ‘something arising in consequence of her disability’ was an objective question of whether there was a causal connection between the two. It is not concerned with reasons or motive. The question that the Tribunal should have asked itself, in relation to each of the behaviours relied on by the school, was whether B’s behaviour was causally related to her disability. Thus, for example, for the first incident, the question was whether B kicking another child at the school on the leg on 7 September 2002 was causally connected either to her physical or mental impairments (or both). Those impairments were identified by the Tribunal at [17] of the decision as impairments that cause her difficulties with coordination, proprioception, understanding of force and fine motor skills and understanding and expressing her own emotions and those of others and requiring help with social skills. In accordance with Pnaiser, the Tribunal needed to apply an objective test.

The appellants argue that this was a question on which the expert evidence of Ms Dunn and Ms Roscoe was highly relevant, but that the Tribunal failed to take this evidence into account and/or perversely and/or for inadequate reasons disagreed with the only expert evidence it had when it reached the conclusion that the challenging behaviour for which B was subject to the FTE and excluded from the ASC was not ‘something arising in consequence of disability’. The appellants argue that the Tribunal’s focus on the opinions of B herself and the school witnesses as to the reasons and motivations for her behaviour demonstrates that the Tribunal had in truth failed to apply the objective test required in relation to this issue.

The respondent submits that it is for the First-tier Tribunal as an expert tribunal to determine what weight it gives to expert evidence in the context of any claim. The respondent submits that expert evidence about a child’s needs is not the same as expert evidence about causation of a specific incident when there is a dispute about what happened in relation to that incident. The respondent submits that the First-tier Tribunal was entitled to prefer the evidence of the RB and use its own expertise. The respondent further submits that although the opinions of B and the school witnesses as to the reasons for her behaviour were not determinative of the issue, they were relevant and the Tribunal was entitled to take them into account.

On this issue, I prefer the submissions of the appellant and I consider that the First-tier Tribunal has erred in law. The question of whether there was a causal connection between B’s behaviour and her disabilities was a question in respect of which expert evidence was likely to assist. Indeed, in the ordinary courts, expert evidence might be considered to be reasonably required on such an issue because understanding the nature and effects of many disabilities (especially, perhaps, those arising from mental impairments) will be something where “knowledge, skill, experience, training or education” in relation to the disability in question may be needed (cf the Supreme Court’s guidance on the admissibility of expert evidence in Kennedy v Cordia (Services) LLP [2016] UKSC 6, [2016] 1 WLR 597at [46]-[47]).

Subjective opinions as to someone’s motivation for their behaviour do not take you very far in answering the question that the Tribunal needed to answer. A person’s disability may manifest in many different ways, including both in ways that the person in question will experience as apparently conscious decision-making and in ways that are unconscious. For example, a child with autism spectrum disorder may find themselves overwhelmed in a social situation, unable to articulate their emotions and thus respond by quite deliberately (or, at least, apparently quite deliberately) taking out their frustrations physically on a person or object. The fact that the physical behaviour is conscious, deliberate and/or retaliatory does not of itself mean that it is not causally connected to the disability. Whether it is or not is a question on which expert evidence about the nature of the disability in question is likely to assist.

The First-tier Tribunal, of course, is an expert Tribunal and sits with at least one specialist member with “substantial experience of special educational needs and/or disability (Senior President’s Practice Direction: Panel composition in the First-tier Tribunal, Health, Education and Social Care (HESC) Chamber, 30 December 2024). As such, it is equipped, if need be, to make decisions of this sort without expert evidence, but if it has expert evidence before it on such an issue, that will be relevant evidence that it must take into account.

It is striking in this case that in the paragraphs of its decision dealing with the question of the causal connection between the behaviours and B’s disabilities ([23]-[42]) the Tribunal does not allude to the expert evidence once. Although all five incidents apparently involved B lashing out at other children, and the Tribunal had before it expert evidence which it summarised as being that B had social emotional and mental health difficulties that led to her “lashing out at children, being easily aroused and becoming dysregulated”, the Tribunal does not even mention it. While it is hard to believe that the Tribunal really had let this evidence slip its mind given that this was not a document-heavy case, the fact that at [26] and [40] and [46] it said that there was “no evidence” to link B’s behaviour with her disability makes it clear that the Tribunal did fail to take into account this evidence. That is an error of law.

Alternatively, if (despite appearances) the Tribunal did have this evidence in mind, then its failure to include any reasoning explaining why it disagreed with it, or did not consider it to be of assistance, would also be an error of law because it is impossible to understand why the Tribunal did not consider this evidence had a bearing on the issue it had to decide and why the appellants lost their case on this issue.

Further, the Tribunal’s almost exclusive focus on establishing why B thought she acted as she did and why the RB or B’s parents thought she acted as she did leads me to the conclusion that the Tribunal had misdirected itself in law as to the question it needed to decide. The Tribunal’s approach is the sort of approach that would need to have been taken if there was an issue as to why the RB took the action it did, i.e. whether it was because of B’s behaviour, or because of antagonism towards her parents or some other reason. If that had been the question, then it would have been correct for the Tribunal to focus on the reasons the relevant staff member(s) had for acting as they did. The answer to that question would still have been a matter for the Tribunal to determine, by drawing inferences from all the circumstances as to what the RB’s true reason for acting was, but the evidence of witnesses as to what they thought they were doing would have been highly relevant. However, this was not a case in which there was any issue as to why the RB did what it did. It was agreed that the RB took action because of B’s behaviour. The task for the Tribunal was to determine objectively whether B’s behaviour was causally connected to her disability.

I do accept the respondent’s submission that it would be wrong for me to go so far as to say that it was irrelevant to the causation question what B thought she was doing or what her parents thought she was doing or what the RB thought she was doing, or whether the conduct was ‘deliberate’ or not. I accept that these are in principle relevant matters to take into account.

However, the Tribunal has erred in law in this case in its approach to that evidence. Where it says there is “no evidence” of a link to her social disability, it apparently says that because either B has not said it was because of her disability and/or because the RB’s witnesses considered her conduct to be deliberate and not because of her disability. Insofar as the Tribunal regarded the views of five-year-old B as actually being evidence that bore directly on the question of whether her behaviour was related to her social impairment, that was in my judgment irrational. Likewise the school’s witnesses were witnesses of fact, they do not appear to have expressed opinions about causal relationship to B’s disability, their evidence (as it appears in the Tribunal’s decision) was just about what happened and whether B’s conduct appeared to be deliberate or not. While I can see that it was in principle relevant to the question of whether the conduct was related to B’s physical impairment of dyspraxia whether it was deliberate or not (although, even then, the dyspraxia may have been relevant to the amount of damage/hurt B caused when lashing out deliberately), witness evidence on whether the conduct appeared to be deliberate or not could shed only the most limited light on whether the behaviour was related to B’s social impairment. As such, it was perverse for the Tribunal to regard the fact that the school’s witnesses did not say they thought B’s conduct was related to her disability and/or the fact that the conduct appeared deliberate as meaning there was “no evidence” of such a causal relationship.

The above is sufficient to dispose of this appeal, but I need to say something further about points b. and d. in the grant of permission to appeal.

Point b. concerned what the Tribunal said at [33] about the swinging the child by the dress incident. The Tribunal noted “The claimant does not allege in this case that it arose from [B’s] social impairment”. It is understandable why the Tribunal said this, and indeed why much of its decision seems to focus on the question of whether there was a link between the behaviour and B’s dyspraxia. That is because this was the appellants’ primary case in relation to this and some of the other incidents. Their belief was that at least some of the behaviours were accidental, with harm resulting from B’s ‘clumsiness’ as a result of her dyspraxia. However, the parties are agreed that the case as set out in the original claim form, identified at case management stage, and advanced at the hearing, formally included both B’s disabilities. Mr Edwards before the Upper Tribunal has made clear that if he had been asked if the appellants were also relying as a ‘fallback’ on B’s social impairment in relation to these elements of the claim, he would have said ‘yes’.

Proceedings in disability discrimination cases before the First-tier Tribunal are adversarial and inquisitorial, but, as I observed in KTS v Governing Body of a Community Primary School [2024] UKUT 139 (AAC), the Tribunal is nonetheless required to further overriding objective and to ensure that each party has a fair opportunity to advance their case. In this case, when granting permission, I caused the respondent some consternation by referring to the Tribunal’s responsibility of active case management as being the exercise of an ‘inquisitorial’ jurisdiction. It is sometimes referred to as such, but I agree with the respondent that it is better not to use that term in this context. However, the point remains that it is incumbent on the Tribunal to ensure that it has identified with the parties what the issues in the case are that it has to decide, and that includes any alternative case that a party is running in the event that their primary case is rejected.

In this case, even if the claim had been specifically and solely advanced on the basis that only B’s physical impairment was the cause of some part of her behaviour, if the Tribunal applying the objective test concluded that there was no causal relationship with the physical impairment, but there was on the facts a causal relationship with the social impairment, then fairness would probably also require that the appellants be given an opportunity to consider whether they wished to amend their claim. See, in this regard, the Court of Appeal’s decision in Mervyn v BW Controls Ltd [2020] EWCA Civ 393, [2020] ICR 1364 where the Court held that the Tribunal should have specifically asked the claimant whether, if (contrary to her case) it found she had resigned rather than been dismissed, she wished the Tribunal to consider whether she had been constructively unfairly dismissed or not. That case involved a litigant in person, but as is clear from [49(3)] of the Court of Appeal’s well-known guidance in Drysdale v The Department of Transport (Maritime and Coastguard Agency) [2014] EWCA Civ 1083, [2014] IRLR 892 the fact that a party is legally represented does not mean that the court should never provide assistance of this sort.

I do not, however, need to decide whether the Tribunal’s failure in this case to raise the question of ‘fallback’ positions with the parties was itself an error of law or not. On remission, though, the next Tribunal will need to take care properly to identify the issues in dispute.

As to point d. in the grant of permission, this was my observation that it did not appear from the respondent’s original response to this claim that it was actually disputing the causal link between the behaviour and the claimed disabilities. It did dispute that B’s difficulties amounted to disabilities, and that it had knowledge of that, and it also advanced in the alternative a case that if there was less favourable treatment for a reason relating to disability, that treatment was justified. If these were proceedings to which the Civil Procedure Rules applied (cf CPR 16.5(3) and (5)), this might have created a difficulty for the respondent and represented a further potential error in the Tribunal’s decision in this case. However, “pleadings points” such as this do not have the same implications in this jurisdiction. What matters is fairness and that the parties and the Tribunal understand the issues that are in dispute and the parties have a fair opportunity to deal with them. In the light of the respondent’s clarification in response to the appeal, it is clear that the respondent did actively dispute the causal link at the hearing before the First-tier Tribunal and that the appellants were not under any misapprehension as to the respondent’s position.