A recent Upper Tribunal decision has potentially far-reaching implications for schools considering excluding pupils with disabilities, write Tom Amraoui and Rachel Sullivan.
What remedies are available where a claimant succeeds in a disability discrimination claim against a school in the First-tier Tribunal (FTT)? It is clear from paragraph 5 of Schedule 17 to the Equality Act 2010 that the FTT has no power to award financial compensation. Beyond this, however, what may it do? Schedule 17 casts the scope of the FTT’s powers in incredibly wide terms: ‘The tribunal may make such order as it thinks fit’. The legislation also provides that this power ‘may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person of any matter to which the claim relates’, but this does not do much to narrow the scope.
The view that the FTT has a very wide, but not unfettered, discretion over remedies is supported by the recent decision of the Upper Tribunal in Ashdown House School v JKL & MNP HS/1322/2019. The decision has potentially far-reaching implications for schools considering excluding pupils with disabilities.
In Ashdown, a ten year old boy with ADHD, sensory processing difficulties and emotional and social difficulties. He attended the school with an EHCP, but was excluded in February 2019 following aggressive behaviour towards other students. An appeal was unsuccessful and his parents subsequently appealed to the FTT.
The FTT concluded that by excluding him, the school had treated Bobby unfavourably because of something arising in consequence of his disability and, that treatment was not a proportionate means of achieving a legitimate aim, the school had therefore subjected Bobby to unlawful discrimination in breach of s. 15 of the Equality Act 2010. The school was ordered to reinstate Bobby and to apologise to him in writing. The school appealed to the Upper Tribunal.
On appeal, the Upper Tribunal rejected the argument that reinstatement was an impermissible remedy (and that this and the other orders made against the school, such as the requirement to provide tuition, were not enforceable) on the grounds that, as an independent school, the parent-school relationship was contractual and the FTT had no jurisdiction to order specific performance.
The Upper Tribunal held in clear terms that the FTT did have power to make binding orders in a disability discrimination claim against a school, and that in appropriate cases this would include an order for reinstatement of a pupil who had been unlawfully excluded from (even an independent school), with enforcement available in the High Court (not the FTT or the Upper Tribunal) or by the Equality and Human Rights Commission (via an injunction). This should not, however, be taken as authority for the proposition that reinstatement is appropriate in all cases where it is sought. One important factor, discussed in Ashurst, is whether or not the relationship of trust and confidence had not broken down as between the school and the parents.
Ashdown also addresses the vexed issue of apologies as a form of relief. It provides detailed and helpful guidance (see paragraph 256) on the circumstances in which an apology may be most appropriate. In particulars, tribunals should bear in mind that an apology may have a purpose beyond simply preventing future discrimination. The Upper Tribunal notes in particular that there can be value in an apology (it may provide solace for the emotional or psychological harm caused by unlawful conduct) but, particularly where there has been a dispute or a contested hearing, the FTT should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
Running throughout the whole of the Upper Tribunal’s decision in Ashdown is a concern that the FTT’s power over remedies should not be toothless. Any such concern is plainly allayed by the effect of Ashurst itself, which gives the FTT plenty of bite! The decision is likely to be welcomed by parents and will require careful consideration by schools facing disability discrimination claims.