Safety first?

Child safety gate 36045624 s 146x219Daljit Kaur looks at the implications for disability discrimination of a case concerning a nursery-age child prevented from accessing provision over 15 hours.

The claim (JW v Governing Body of Sinai Jewish Primary School) before the First Tier Tribunal (FTT) included allegations that the school had discriminated by not allowing JW to attend nursery in the afternoon, and stay for lunch. The School argued it was too expensive to employ another staff member to supervise JW for these sessions and was operating at a deficit, so could not ensure JW’s safety without additional resource. At Upper Tier Tribunal (UTT), further evidence showed the school’s deficit was less than originally presented at FTT.

The UTT decided that as this was relevant to the issue of proportionality, the FTT decision that no discrimination occurred in exclusion from the afternoon sessions was wrong in law because it had been materially misled. The UTT did not uphold the appeal against the FTT decision relating to no discrimination in respect of JW not being able to stay for lunch as the school was unable to recruit a suitable supervisor for the limited hours.

JW v Governing Body of Sinai Jewish Primary School [2019] UKUT 88 (AAC)

What are the practical implications of this case?

The case firstly determined that the financial position of the school when considering what should be funded as reasonable adjustments in the form of additional support was material. While a school is not required routinely to provide comprehensive financial documents, if it seeks to rely on a simple statement of its financial position, that statement should be accurate.

The fact that in this case, the information was not accurate resulted in the FTT proceeding to make decisions on that basis, without anything suggesting the contrary. While new evidence cannot be submitted at will at the UTT stage, the evidence submitted by the appellants relating to a more accurate financial position of the school was considered relevant (based on previous case law) to the extent that it was uncontentious and could not reasonably have been found by the appellants before the FTT hearing.

In addition, the failure to allow JW to attend the nursery for the afternoon session was a matter which could be considered not only under Section 15 of the Equality Act 2010 (EA 2010) but possibly also under EA 2010, s 20(5) as the phrase ‘auxiliary aid’ is to be read as also including ‘auxiliary service’ (EA 2010, s 20(11)). Under both sections the issue regarding cost is relevant–EA 2010, s 15 as to proportionality and the potential detrimental effect on the other children in the school, and EA 2010, s 20(5) in terms of reasonable steps of providing an adjustment.

What was the background?

The case related to an appeal by parents against the FTT decision that the school had not discriminated against their child when the school failed to allow him to stay for lunch or to attend the afternoon sessions of nursery. JW was in attendance at the nursery from September 2015 for the morning sessions for 15 hours and was provided with support on a 1:1 basis for this.

The appellants had requested afternoon sessions for JW, three days per week. All parents were permitted to access additional hours above the 15 hours generally available, on paying for the same. Of 42 children, 38 attended all morning, lunch and afternoon sessions. The appellants agreed JW would attend for morning sessions only, until January 2016 at which point there would be a review. However by July 2016 when the appellants brought their claim in the FTT, their request for additional sessions had still not been complied with. The Appellants then removed JW from September 2016 but continued with their claim.

The claim was unsuccessful at the FTT. The appellants appealed to the UTT in respect of the allegations that the school discriminated against JW because of his disabilities, both in not allowing him to attend in the afternoons and in not allowing him to stay for lunch.

The FTT had accepted the School’s position that JW required 1:1 at lunch and in class, as well as the School’s representations regarding its financial status. With regard to the lunch arrangements the FTT had accepted that while it was unfavourable treatment it was not discriminatory as it was proportionate given the accepted level of support JW needed, the available resources of the school in terms of finance and ability to find an appropriate member of staff.

What did the court decide?

The UTT permitted the appeal against the FTT decision relating to the exclusion of JW from the afternoon sessions. This was on the basis of new uncontested evidence submitted by the appellants at the UTT which provided a more accurate picture of the School’s financial position ie that its deficit was not as had been presented to the FTT.

Accordingly the UTT held that it was satisfied that the FTT’s decision that there was no discrimination involved in excluding JW from the afternoon sessions was wrong in law because it was materially misled. This part of the FTT decision was therefore set aside. However as JW had left the school, as had the head and as there had been changes among the governors, the UTT determined it would be disproportionate to remit the case and that it’s finding would be sufficient.

In terms of the challenge to the exclusion from lunchtimes, this was not upheld by the UTT. While the UTT held that the FTT had made an error in not considering the appellant’s offer to pay for a lunch time supervisor, and had still regarded the school’s financial position to be relevant, the UTT did not consider the error material. This was due to the fact that the school was unable to recruit a suitable member of staff for the limited hours in the time they had available.

Case details

  • Court: UK Upper Tribunal (Administrative Appeals Chamber)
  • Judge: Judge Rowland
  • Date of judgment: 12 March 2019

Daljit Kaur is an associate at Browne Jacobson LLP.

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