Governing Body of School T v AA and another
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2023] UKUT 311 (AAC) |
| Year | 2023 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2023 Aug 30;Nov 28
Education - School - Exclusion - School deciding to stop providing on-site education to disabled child - Child subsequently moved to care home after school and local authority deciding school no longer suitable placement - Parents bringing discrimination claim challenging school’s decision to stop providing on-site education for child - Whether claim brought out of time - Whether failure to provide on-site education continuing act for purposes of applying time limit -
A child who was disabled within the meaning of the Equality Act 2010F1 attended a community special school which was named in the education, health and care plan prepared for the child by the local authority. After the child caused injuries to school staff, and in light of a lack of adequate resources caused by the Covid-19 pandemic, the school decided in early February 2021 that the child could no longer attend to receive on-site education, although a letter from the head teacher to the child’s parents stated that the school would continue to provide the child with remote learning and welfare support. In early March 2021 the parents and the local authority made an agreement under section 20 of the Children Act 1989 regarding the provision of accommodation for the child and, at an annual review meeting later the same month, the school and the local authority decided that the child required 24-hour care and education and that the school was no longer a suitable placement. In early April 2021 the local authority placed the child in a children’s care home a considerable distance away from the school, which made daily on-site attendance at the school impracticable. In early November 2021 the parents brought a claim before the First-tier Tribunal alleging that the decision to stop providing the child with on-site education amounted to discrimination against a disabled person within the meaning of section 15 of the 2010 Act, contrary to section 85(2). The school raised a preliminary argument that the claim had been brought outside the six-month time limit provided by paragraph 4(1) of Schedule 17 to the 2010 Act. Rejecting that argument, the tribunal found that the failure to provide on-site education was a continuing act which had persisted into May 2021 and that the claim was accordingly in time. It went on to allow the substantive claim on the basis that the school could not show that the unfavourable treatment of the child was a proportionate means of achieving a legitimate aim.
On appeal by the school—
Held, allowing the appeal, (1) that during the period up to early April 2021 there had been a continuing relationship between the school and the child both in respect of the obligations arising from the education, health and care plan in which the school was named and the express terms of the head teacher’s letter including the commitment to provide remote learning and welfare support; that the child had been subjected to the unfavourable treatment of being off-site during the period over which the terms of the head teacher’s letter had subsisted, which was not a one-off predetermined period but was instead a period the length of which was subject to receiving and reviewing further advice or information that would influence the process of the child’s return; that, therefore, the First-tier Tribunal had not erred in concluding that the school’s decision for the child not to attend the school on-site was a continuing act; that, however, the child’s circumstances had materially changed as a result of the agreement reached between the parents and the local authority under section 20 of the Children Act 1989 and the move to the care home, since those were decisions made by the local authority instead of the school and, as such, the decisions or the circumstances that followed them did not amount to an ongoing state of affairs for which the school was responsible; that, therefore, there had been no conduct extending over a period by the school after, at the latest, the child’s move to the care home in early April 2021 and the time limit for the school’s potential liability had started to run at that point; that, consequently, the claim brought in November 2021 was out of time and the First-tier Tribunal had erred in law in concluding otherwise; and that the matter would therefore be remitted to the First-tier Tribunal to reconsider whether to exercise the general discretion under paragraph 4(3) of Schedule 17 to the 2010 Act to consider a claim that was out of time (post, paras 56–59, 62, 66–70, 92–94).
(2) That the First-tier Tribunal had failed sufficiently to consider the school’s aim to protect the health, safety and welfare of its staff and pupils, such consideration being necessary to enable an assessment to be made of whether a fair balance could be struck between that aim and the detriment to the child; that the tribunal had also erred in eliding the actions and decisions of the school and of the local authority in its assessment of the proportionality of the school’s decision to stop providing on-site education to the child; and that, accordingly, the tribunal had erred in its assessment of the issue of proportionality, which issue would therefore be remitted to the tribunal to be considered afresh (post, paras 82–84, 90, 93, 94).
The following cases are referred to in the judgment:
Amies v Inner London Education Authority[
Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone
Aziz v First Division Association
Barclays Bank plc v Kapur[
Calder v James Finlay Corpn Ltd (Note)[
Cast v Croydon College[
Chaudhary v Royal College of Surgeons EAT/975/99 (unreported) 19 July 2001,
Chief Constable of West Yorkshire Police v Homer
Comr of Police of the Metropolis v Hendricks
Hardy & Hansons plc v Lax
JL v Governing Body of Cherry Lane Primary School
Lyfar v Brighton and Sussex University Hospitals Trust
Notting Hill Finance Ltd v Sheikh
Owusu v London Fire and Civil Defence Authority[
Parr v MSR Partners LLP
Rovenska v General Medical Council[
Sougrin v Haringey Health Authority[
Tait v Redcar and Cleveland Borough Council UKEAT/96/08 (unreported) 2 April 2008,
Virdi v Comr of Police of the Metropolis[
The following additional cases were cited in argument or referred to in the skeleton arguments:
Basildon and Thurrock NHS Foundation Trust v Weerasinghe[
British Gas Services Ltd v McCaull[
Department of Work and Pensions v Boyer
Fairlead Maritime Ltd v Parsoya UKEAT/275/15 (unreported) 30 August 2016,
F-T v Governors of Hampton Dene Primary School
Gray v University of Portsmouth UKEAT/891/19 (unreported) 24 June 2021,
Heskett v Secretary of State for Justice
Lupetti v Wrens Old House Ltd[
Okoro v Taylor Woodrow Construction Ltd
Pnaiser v NHS England[
R (BA) v Nottinghamshire County Council
RD v Proprietor of Horizon Primary
Sheikholeslami v University of Edinburgh[
South Western Ambulance Service NHS Trust v King[
APPEAL from the First-tier Tribunal (Health, Education and Social Care Chamber)
By a decision dated 18 July 2022 the First-tier Tribunal (Health, Education and Social Care Chamber) allowed the claim of AA and RA, the parents of child A, against the Governing Body of School T for disability discrimination under section 15 of the Equality Act 2010 in respect of the school’s decision first made on 2 February 2021 to stop providing on-site education to A. The First-tier Tribunal refused the school’s application for permission to appeal but, on the school’s further application to the Upper Tribunal, Upper Tribunal Judge Wikeley granted permission on 23 February 2023. The grounds of appeal for which permission was granted were that: (1) the First-tier Tribunal had erred in finding that the school’s decision not to allow the child to attend the school’s premises was a continuing act, such that the statutory time limit for bringing the claim had not expired, and had thus erred in concluding that it had jurisdiction to determine the claim; and (2) even if the decision were a continuing act, the act had ended after ten weeks, or at an earlier point when A was moved to a care home, rendering the claim outside the First-tier Tribunal’s jurisdiction. The school sought to advance further grounds of appeal that the First-tier Tribunal had: (3) in its analysis of the school’s legitimate aims, erroneously overlooked one of the pleaded aims, which rendered unsafe its analysis of proportionality; (4) in its assessment of...
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