Alice de Coverley and John Friel in new Upper Tribunal decision on disability discrimination claims against private school

22nd March 2024

Two of 3PB's Education Law team appeared opposite each other in the Upper Tribunal, with Alice de CoverleyAlice de CoverleyCall: 2014 acting for the Appellant, the parents of a disabled child who had been permanently excluded, and John FrielJohn FrielCall: 1974 acting for the Respondent, an independent school.

The case of SS v Proprietor of an Independent School [2024] UKUT 29 (AAC) is a significant and useful decision for those acting in the education and discrimination field. UT Judge Stout took the opportunity to provide the Tribunal and its users with detailed guidance on how to approach both section 15 (“discrimination arising”) and reasonable adjustments claims. In particular, she analysed the relationship between the duty in the Equality Act 2010 to make reasonable adjustments and the Education, Health and Care Plan framework in the Children and Families Act 2014, making plain that: “The EA 2010 contains no exception from the responsible body’s duty to make reasonable adjustments for a pupil with an EHCP” [§77(a)].

The Upper Tribunal further ruled that the First-Tier Tribunal materially erred in law in its consideration of some of the claimants’ claims of failure to make reasonable adjustments by not identifying the provision, criterion or practice (“PCP”) or the substantial disadvantage suffered by the child, before considering whether there had been an unreasonable failure to make adjustments.

The First-Tier Tribunal’s conclusion that the child’s subsequent permanent exclusion was justified for the purposes of s15 of the Equality Act 2010 was therefore also wrong, as it relied in part on their flawed conclusion about the reasonable adjustments claims.

UT Judge Stout also ruled that the First-Tier Tribunal further erred on a claim of discrimination arising from disability in relation to a refusal to provide an additional therapy dog session by regarding it as determinative that the session was not required to meet the child’s needs as a disabled person, rather than considering whether the school’s reason for refusing the session was ‘something arising in consequence’ of the disability.

The Appellant was accordingly successful in their Appeal to the Upper Tribunal, and the matter was directed to be remitted to a fresh First-Tier Tribunal.

Alice was instructed by the law firm Russell Cooke, and John was instructed by law firm DAC Beachcroft.

To read a full copy of the judgement please click here.

To contact either John Friel or Alice de Coverley, please email their clerks Gemma Faulkner on [email protected] or Tom Cox on [email protected] or by calling 020 7583 8055.