RB v Calderdale Metropolitan Borough Council
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKUT 136 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2022 May 3; 11
Education - Local education authority - Duty to make special educational provision - Disabled young person appealing local authority’s education, health and care plan - First-tier Tribunal considering special educational needs legislation but not disability discrimination legislation - Whether required to consider duty to make reasonable adjustments under disability discrimination provisions - Extent of interface between two sets of legislation -
The young person, who was disabled within the meaning of the Equality Act 2010F1, appealed against the contents of the education, health and care plan maintained for him by the local authority under the Children and Families Act 2014F2 including provision for his special educational needs. Allowing the appeal in part, the First-tier Tribunal ordered certain amendments to the plan and recommended others. In its decision the tribunal noted that it had taken into account the relevant sections of the 2014 Act and regulations made thereunder, and the code of practice issued pursuant to section 77 of the 2014 Act, but it made no mention of the 2010 Act.
On the young person’s appeal and on the question whether a tribunal hearing a special educational needs appeal under section 51 of the 2014 Act had a duty simultaneously to consider the reasonable adjustments required for the child or young person under the 2010 Act—
Held, dismissing the appeal, that the only interface between the Equality Act 2010 and Part 3 of the Children and Families Act 2014 was that both statutes had a shared aim of removing barriers to learning and that the issue of whether a child or young person had a disability for the purposes of Part 3 of the 2014 Act was determined by reference to the 2010 Act; that the statutory regimes were otherwise entirely different and distinct, the 2014 Act being concerned with special educational needs, for which it placed responsibility on the local authority in respect of any given child or young person with such needs, whereas, by contrast, the 2010 Act was concerned with disability discrimination and placed the duty to make reasonable adjustments squarely on the responsible body of a school; that, while an individual child or young person with special educational needs might often also be disabled within the meaning of the 2010 Act, so that matters arising in relation to their special educational needs provision might in practice also overlap with questions of reasonable adjustments under the 2010 Act, the reasonable adjustment provisions were not to be imported into the entirely different regime of the 2014 Act and a tribunal hearing a special educational needs appeal under section 51 of the 2014 Act was not required to consider them; that that position was unaffected by the code of practice, which simply sought to summarise the legislative duties under the two Acts and would, in any event, give way to the provisions of the 2014 Act if and to the extent that the two were inconsistent; and that the tribunal’s decision did not involve any material error of law (post, paras 2, 46–52, 55, 56, 60).
The following cases are referred to in the judgment:
Devon County Council v OH
Hertfordshire County Council v C
RD v Proprietor of Horizon Primary
S v Worcestershire County Council
Staffordshire County Council v JM
The following additional cases were cited in argument or referred to in the skeleton arguments:
Bromley London Borough Council v Special Educational Needs Tribunal [
Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP
F-T v Hampton Dene Primary School Governors
Langsam v Beachcroft LLP
McGraddie v McGraddie
Perry v Raleys Solicitors
R v Surrey County Council Education Committee, Ex p H (
R (A) v Hertfordshire County Council
S (A Minor) v Special Educational Needs Tribunal [
Satyam Enterprises Ltd v Burton
APPEAL from the First-tier Tribunal (Special Educational Needs and Disability Chamber)
By a decision dated 20 June 2021 the First-tier Tribunal (Special Educational Needs and Disability Chamber) allowed in part an appeal by the young person, RB, who was disabled within the meaning of the Equality Act 2010, against the provision made for him in the education, health and care plan maintained for him by the local authority, Calderdale Metropolitan Borough Council, under the Children and Families Act 2014. The tribunal ordered certain amendments to the plan and recommended others but the young person remained dissatisfied with the provision and sought permission to appeal to the Upper Tribunal. On 20 January 2022 Upper Tribunal Judge Rowley granted permission. The central ground of appeal was that a local authority (or tribunal stepping into its shoes), when considering what special educational provision was reasonably required to meet a child’s or young person’s special educational needs, ought at the same time to consider the reasonable adjustments required for that child or young person under the 2010 Act, and that the tribunal’s failure to consider what reasonable adjustments were required for the young person had therefore led to a material error of law. In that connection issues arose concerning the interface between the special educational needs provisions under the 2014 Act and obligations under the 2010 Act for a child who was disabled within the meaning of that Act; the interrelationship between the 2014 Act and the Special Educational Needs and Disability Code of Practice: 0 to 25 years (2015) issued thereunder; and whether the First-tier Tribunal had had insufficient regard to the latter.
The facts are stated in the judgment, post, paras 6–13.
Emma Waldron, acting pro bono (instructed by
Andrew Cullen (of
The Upper Tribunal took time for consideration.
11 May 2022. UPPER TRIBUNAL JUDGE ROWLEY promulgated the following judgment.
Of its own motion the Upper Tribunal orders that, pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), there is to be no disclosure of:
(a) the name or address of RB who is the appellant in these proceedings or
(b) any information that is likely to lead members of the public, directly or indirectly, to identify the appellant in connection with these proceedings.
Any breach of this anonymity order is liable to be treated as a contempt of court and may be punishable by imprisonment, fine or other sanctions under section 25 of the Tribunals, Courts and Enforcement Act 2007. The maximum punishment which may be imposed is a sentence of two years’ imprisonment or an unlimited fine.
The decision of the Upper Tribunal is to dismiss the appeal.
The decision of the First-tier Tribunal taken on 20 June 2021, amended and re-issued on 30 June 2021 (ref EH381/21/00001V), did not involve an error on a point of law. Under section 11 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal dismisses this appeal.
1 Amongst other things, the First-tier Tribunal hears appeals against decisions made by local authorities in relation to children and young persons’ special educational needs (“SEN”) and special educational provision for those needs. Many appeals are brought by parents or young people without legal representation. Sometimes their cases involve navigating through different pieces of overlapping legislation which may give rise to some confusion around the delineation of the statutes. Until recently, the appellant in this case did not have the benefit of legal representation. His mother’s legal researches led to her grappling with two very different pieces of legislation, namely the Children and Families Act 2014 (“CFA”) and the Equality Act 2010 (“EA”).
2 This appeal considers the interface between SEN provision under Part 3 of the CFA and obligations under the EA for a child or young person who is “disabled” within the meaning of the legislation. In particular, the decision discusses whether a First-tier Tribunal dealing with an appeal about the special educational provision specified in an education, health and care plan (“EHC Plan”) should consider the reasonable adjustments required for the child or young person under the EA. The short answer to that question is “no”.
3 In this decision, for reasons of anonymity, I shall refer to the appellant as R.
The hearing before the Upper Tribunal4 At R’s request, his mother attended the Upper Tribunal hearing on his behalf. R was represented by Ms Emma Waldron of counsel who had been instructed on a pro bono basis after her assistance had been sought from the Independent Provider of Special Education Advice following my grant of permission to appeal. Mr Andrew Cullen, in-house counsel, represented the respondent local authority. I am grateful to both for their assistance.
5 With the parties’ consent the hearing was a remote one, conducted over CVP Kinly. The Upper Tribunal’s bundle of documents contained 130 pages. The First-tier Tribunal’s core bundle (717 pages) and supplementary bundle (56 pages) were also available but not referred to. Once the hearing was underway, no technical...
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RB v Calderdale MBC (SEN)
...Calderdale MBC (SEN) [2022] UKUT 136 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Appeal No. UA-2021-000608-HS On appeal from First-tier Tribunal (HESC Chamber) Between: RB Appellant -v– Calderdale Metropolitan Borough Council Respondent Before: Upper Tribunal Judge Rowley Hea......