K v X School and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lady Justice Hallett,Lord Justice Auld |
| Judgment Date | 06 March 2007 |
| Neutral Citation | [2007] EWCA Civ 165 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 2007 |
| Docket Number | Case No: C1/2006/0616 |
[2007] EWCA Civ 165
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
MR JUSTICE MITTING
C0443005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Wall and
Lady Justice Hallett
Case No: C1/2006/0616
David Wolfe (instructed by Messrs Levenes—Solicitors) for the Appellant
John Friel (instructed by Messrs Illiffes Booth Bennett—Solicitors) for the 1 st Respondent
The 2 nd Respondent did not attend and was not represented
Hearing date: 29 th January 2007
Introduction
This is an appeal to which reporting restrictions apply. Nothing, therefore, must be published which in any way identifies the child concerned, the parties or the other participants in the proceedings. It concerns a child, whom I will call A, and who was born on 2 September 1990. A has the misfortune to be severely disabled following a road traffic accident in September 1999. He is a paraplegic and incontinent of faeces. Due to his disability, he is unable to change or clean himself after passing a motion. Fortunately, his intellect is unimpaired, although a further consequence of his disability is that he has a statement of special educational needs (SSEN).
Pursuant to permission granted on paper by Richards LJ on 2 August 2006, Ms K, A's mother, appeals against an order made by Mitting J in the Administrative Court of the Queen's Bench Division on 9 March 2006 ( [2006] EWHC 622 (Admin)) dismissing her appeal against a reserved decision of the Special Educational Needs and Disability Tribunal (SENDIST) made on 2 June 2005 following a hearing on 12 April 2005. SENDIST had rejected a claim made by Ms K against the governing body of the school attended by A (the School) that it had unlawfully discriminated against A contrary to sections 28A to 28C of the Disability Discrimination Act 1995 ( DDA 1995) as inserted by sections 11 to 13 of the Special Educational Needs and Disability Act 2001 (the 2001 Act).
In her notice of appeal to SENDIST, the claim made by Ms K was expressed in the following terms: —
In the Autumn term of 2003, on one occasion, the School refused to allow (A) to be changed, following an accident. As a result, Ms K made a complaint but subsequently suspended that complaint around March 2004 because matters had appeared to have been resolved and in order to maintain good relations with the School. However, in June 2004, on two occasions, and on the first day of term in September 2004, the School has again refused to permit A to be changed, following an accident. As a result, on each occasion, he had to go home and missed the rest of the school day, in order to be cleaned and changed.
In the circumstances, it is alleged that this constitutes discrimination by the School against A, in breach of the provisions of section 28A(2), section 28B(2) and section 28C(1)(b) of DDA 1995.
There are other complaints, but these do not form the subject matter of this appeal, and I say no more about them.
The remedies sought by Ms A before SENDIST were: —
An apology
2. A requirement that A's needs are met in school; particularly with regards to his toileting, medical and hygiene needs.
Disability Equality Training.
A requirement that A will not be victimised.
As of 29 January 2007, when the appeal was heard, A remained a pupil at the School, and will take his GCSEs this summer. He is currently the subject of a fresh SSEN, a copy of which we asked to see, and which is dated 26 October 2005 (that is more than four months after SENDIST's decision and more than four months before the date of the judge's decision). The current SSEN makes increased provision for A, and it appeared to be common ground between counsel before this court that, at the present time; (i) A's incontinence is now less severe than it had been; and (ii) that the problem of cleaning and changing him after an involuntary motion has been addressed following the additional provision contained in the fresh SSEN.
What is the purpose of this appeal?
The relief sought by Ms K in this court was an order setting aside SENDIST's decision and a remission of the application to a fresh Tribunal for reconsideration. When we asked Mr. David Wolfe, for Ms K, why the appeal was being pursued, his answer was; (1) that Ms K wanted the apology from the School which she had not received; and (2) that in any event, as Richards LJ had remarked when granting permission to appeal on paper: “the nature of the duties imposed on a school in relation to a child in the position of A and the relationship in this respect between the disability discrimination regime and the special educational needs regime are matters of sufficient importance to warrant consideration by this court”.
As Mr. Wolfe acknowledged, this is a second appeal, to which section 55(1) of the Access to Justice Act 1989 applies, and it is, of course, the case that permission to appeal has been granted. Furthermore, in principle and as a general proposition, I do not disagree with Richards LJ's reasons for granting permission. In a proper case, I am in little doubt that a second appeal raising such issues might well be appropriate. However, in the instant case I have serious doubts about whether Richards LJ would have granted permission had he been aware of the developments identified in paragraph 5 of this judgment. I take the view what has happened on the ground since SENDIST's decision is highly significant, and, despite Mr. Wolfe's enthusiastic advocacy, in my judgment, those developments render this appeal to all intents and purposes academic.
Even if I am wrong about that, however, and even if I come to the conclusion that SENDIST was wrong, as a matter of law, not to find that the school had discriminated against A, I can frankly see no real purpose in a remission to a fresh Tribunal for reconsideration. The only relief which has not been addressed is the apology which Ms K seeks on A's behalf. I can quite understand that a finding of discrimination should, in most circumstances make an apology by the person or body guilty of discrimination appropriate. However, on the facts of this case, as I shall shortly recount them, I am not satisfied that an apology by the school is called for. More importantly, however, A's needs have been addressed: disability equality training (whatever the precise meaning of that term) does not seem to me to be required, and a requirement that A will not be victimised adds nothing in my judgment to the statutory duty not to discriminate.
The fact remains, however, that permission to appeal has been given, and this court is, accordingly, duty bound to examine the appeal in order to decide whether or not SENDIST made an error of law which the judge has failed to identify and correct. I will, therefore, return to the question of remedy if and when it arises.
Against that background, I propose to begin by setting out the statutory and regulatory framework.
The statutory and regulatory framework: (1) Disability
I begin with the relevant provisions of DDA 1995, most of which were inserted into it by section 11(1) of the 2001 Act. Disability is defined in section 1(1) of DDA 1995. A person has a disability if he has “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. A self-evidently fits within this definition.
Part IV of DDA 1995 deals with education, and Chapter 1 of Part IV is entitled Schools. Section 28A to C, where material, reads as follows: —
28A Discrimination against disabled pupils and prospective pupils
(1)…….
(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
(3) The Secretary of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection (2) as being—
(a) education; or
(b) an associated service.
(We were told that no such regulations have been made.)
28B Meaning of “discrimination”
(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
(2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if—
(a) it fails, to his detriment, to comply with section 28C; and
(b) it cannot show that its failure to comply is justified.
(7) ……. less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.
(8) If, in a case falling within subsection (1)—
(a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but
(b) it fails without justification to comply with that duty,
its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty.
28C Disabled pupils not to be substantially disadvantaged
(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that—
(b) in relation to education and...
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