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The Upper Tribunal has rejected an appeal by an independent school which had argued that the First-tier Tribunal did not have the power under the Equality Act to make orders against a school when it had found that the school had discriminated against a pupil on the basis of his disability. The Upper Tribunal accepted that the First-tier Tribunal could make orders that schools were required to comply with, including an order that they reinstate a pupil they had excluded.
Bobby* is 10 years old. He has complex special educational needs arising from ADHD, sensory processing difficulties and social and emotional difficulties, and had an Education, Health and Care Plan (EHCP) as a result. From September 2017 his EHCP provided for him to attend an independent school, Ashdown House School.
On 9 February 2019, Bobby was permanently excluded from the school. The reason given for the exclusion by the Headmaster was aggressive behaviour, in particular two incidents where he had placed other boys in a ‘headlock’, although the exclusion decision also said it took into account ’37 incidents of unprovoked aggression’ since Bobby started at the school.
The parents made a claim to the First-tier Tribunal (FTT) that the School had discriminated against Bobby by permanently excluding him. The FTT upheld the claim, and found that the exclusion had been unlawful discrimination. The FTT concluded that permanent exclusion was a disproportionate decision, and that the School had not considered alternatives to exclusion first. The FTT also found that the Headteacher’s evidence was not consistent, and that other pupils who had been guilty of violent or aggressive behaviour had been given far less serious punishments.
In the light of its conclusion that the exclusion was discriminatory, the FTT ordered the School to withdraw the exclusion and reinstate Bobby, and to provide an apology. The School appealed to the Upper Tribunal against the FTT’s decision. While the School’s appeal did in part seek to challenge the finding of discrimination, the main issue that School raised in the appeal related to the FTT’s orders.
Upper Tribunal Appeal
The School argued to the Upper Tribunal that the FTT did not have the power to make any orders against them, as an independent school, and that the FTT’s decision should only be treated as ‘recommendations’. The School also argued that in any event they could decide not to comply with the FTT’s order, and that there was no way that the order could be legally enforced. The School also argued that the Tribunal was wrong to order an apology as well.
In its very detailed decision, the Upper Tribunal did not accept the School’s arguments on these points. The Upper Tribunal Judge described the School’s position as being that the FTT was “an essentially toothless body, which has no effectual powers to deal with cases of disability discrimination in schools”, but roundly rejected that and found that the FTT did have power to make binding orders in a disability discrimination claim against a school, including an order that a school should reinstate a pupil who had been unlawfully excluded.
The Judge also rejected the School’s argument that nothing could be done if it ignored an FTT order. Although he accepted that the FTT (and the Upper Tribunal) could not enforce the order, he accepted that there were at least two possible routes of enforcement – either through the parents bringing contempt of court proceedings in the High Court, or the Equality and Human Rights Commission seeking an order from the High Court. The Judge finally accepted that the FTT had not made any error of law in ordering that the School provide an apology to Bobby.
If the School’s arguments had been accepted in this appeal, it would have meant that disabled pupils would have had no effective remedy if a school discriminated against them, so that the prohibition on discrimination by schools in the Equality Act would have been left as no more than empty words.
The Upper Tribunal’s decision confirms that that is not the position, and that there is a genuine and effective means of challenging discrimination by Schools against disabled pupils, and that independent schools are not above the law.
Chris Barnett acted for the parents in this case. In the Upper Tribunal, the parents were supported and funded by the Equality and Human Rights Commission
* Not his real name