Kts v Governing Body of A Community Primary School

Held, allowing the appeal, (1) that on a claim of failure to make reasonable adjustments the First-tier Tribunal needed first to identify the relevant provision, criterion or practice (“PCP”) that was said to place the disabled person at a substantial disadvantage (for a claim under section 20(3) of the Equality Act 2010) or the auxiliary aid without provision of which they would be placed at such a disadvantage (if the claim was under section 20(5)); that the tribunal then had to consider whether the PCP, or absence of an auxiliary aid, had placed the disabled person at a substantial, in the sense of more than minor or trivial, disadvantage in comparison to those who were not disabled, which in turn required it to consider whether the PCP or absence of an auxiliary aid “bit harder” on the disabled, or a category of them, than it did on those who were not disabled; that, if so, the duty to make reasonable adjustments applied and the tribunal had to assess objectively whether the adjustment sought was reasonable, having identified and taken into account the nature and extent of the substantial disadvantage suffered; that, consequently, clarity was required on each of the elements of the reasonable adjustments claim in order to identify the relevant provision, criterion or practice along with the nature and extent of the specific disadvantage claimed to be suffered by the child as a result of it and the specific reasonable adjustments sought, together with the date or dates when it was said that those adjustments ought to have been made; and that the First-tier Tribunal ought to take appropriate steps by way of case management to achieve clarity as to the legal issues through case management either in advance of, or at the start of, the hearing, to enable the parties to focus their evidence and the tribunal to focus its decision on the right matters (post, paras 30, 39, 51).

Environment Agency v Rowan[2008] ICR218, EAT, Royal Bank of Scotland Group plc v Allen (2009) 112 BMLR 30, CA and Griffiths v Secretary of State for Work and Pensions[2017] ICR160, CA applied.

(2) That the duty to make reasonable adjustments might arise even if the claimant did not at the time identify what adjustments were required, so long as the claimant set out their case on that matter by the time of the hearing of the claim, although the fact that the claimant had not identified a step at the time might be relevant to whether it was reasonable; that the burden of proof was on the claimant under section 136 of the 2010 Act to adduce some evidence of an apparently reasonable adjustment from which the First-tier Tribunal could conclude that the duty was breached, whereupon the burden passed to the respondent; that in deciding whether a particular adjustment was reasonable the tribunal needed to consider the extent to which it would avoid the disadvantage, although the fact that a particular adjustment would not wholly remove the disadvantage did not of itself mean that it was not a reasonable adjustment and, in principle, it might be reasonable to take steps which merely reduced the disadvantage or had at least a “real prospect” of making a difference; that the question of reasonableness was an objective one for the court and the fact that some adjustments had already been made did not mean that the statutory duty did not require further or different adjustments; and that, accordingly, unless the adjustments already in place had removed the substantial disadvantage so as to relieve the respondent of the duty to make further adjustments, the reasonableness of the adjustments sought by the claimant would need to be evaluated and consideration given to whether they stood a real prospect of removing or further reducing the substantial disadvantage than the adjustments already in place, whether alone or in combination (post, paras 31–33).

R (Rowley) v Minister for the Cabinet Office[2022] 1WLR1179 and University of Bristol v Abrahart[2024] IRLR396 applied.

(3) That, while it was in principle irrelevant whether the respondent to a claim thought the steps were reasonable or not, in a claim where witnesses for the respondent were likely in fact to have relevant expertise their opinion as to the reasonableness of a step could be taken into account, provided always that the tribunal formed its own objective judgment on reasonableness; that in matters of educational provision there was nothing wrong in principle with the First-tier Tribunal, when deciding whether it would be reasonable to make a particular adjustment sought by a parent, taking into account the professional opinion of staff as to what was working, or what was worth trying for a period, or allowing time for reflection and assessment before expecting changes to be made; that provided the tribunal kept well in mind that it was ultimately for it to make an objective decision about whether it would have been reasonable at a particular point in time for a particular adjustment to be made, there was nothing wrong with it taking into account the sort of factors that it had taken into account in the present case; that the First-tier Tribunal had been correct that the duty to make reasonable adjustments was not a duty to achieve a particular result, nor was it to be equated with the “best endeavours” duty under section 66 of the Children and Families Act 2014; that, however, the tribunal had misdirected itself by concluding that, because the school had made some reasonable adjustments for the child, that was sufficient to discharge its reasonable adjustments duty, without properly addressing the parents’ case for other specific reasonable adjustments sought; that the tribunal had thereby erred by engaging in a general assessment of whether the school was making reasonable educational provision for the child, of the sort that it might undertake when considering under the 2014 Act whether a school was suitable or appropriate for a child, when that was not what was required on a claim for reasonable adjustments; that as a result of the First-tier Tribunal’s erroneous approach to the reasonable adjustments element of the case, there had been a wholesale failure to determine the claim that was actually made; and that its decision would be set aside accordingly (post, paras 1, 31(d), 55–58, 66–69, 71, 73).

Guidance on the relationship between the duty to make reasonable adjustments under the Equality Act 2010 and the education, health and care plan framework under the Children and Families Act 2014 in their application to disabled school pupils (post, paras 37, 38).

Observations on case management of claims under the Equality Act 2010 and the correct approach to time limits for bringing claims (post, paras 39–46).

Per curiam. In so far as para 6.23 of the Equality and Human Rights Commission’s Technical guidance for schools in England (September 2023) suggests that the duty to make reasonable adjustments is a duty to provide “the best possible education for disabled pupils”, it should be regarded as aspirational. The guidance cannot alter the effect of the statute, which provides a duty to make reasonable adjustments where disabled pupils are substantially disadvantaged in comparison to non-disabled peers, and not a duty to provide “the best possible education”, although it may be hoped that compliance with the duty will achieve that result (post, para 36).