McA Catholic High School v CC & Ors

In an education disability-discrimination claim, the comparator under section 28B(1)(a) of the Disability Discrimination Act 1995 is selected by the same approach as in employment discrimination claims. Where the reason for treatment is behaviour, the comparison is with pupils to whom that reason does not or would not apply, rather than with non-disabled pupils displaying the same behaviour.

A school must take reasonable steps to prevent disabled pupils being placed at a substantial disadvantage. That duty may require planned pastoral support during unstructured periods and transitions between year groups. A failure arising from planning and organisation is not necessarily justified by resource considerations.

A pupil with autistic spectrum disorder attended the appellant school. His parents brought a disability-discrimination claim under the Disability Discrimination Act 1995. The Special Educational Needs and Disability Tribunal rejected most complaints but found discrimination because the pupil had not received the personal guidance and pastoral support he required. It ordered the school to produce an action plan and establish a mentoring system.

The school appealed on jurisdiction, the appropriate comparator, comments concerning exclusion, the pastoral-support finding, alleged reliance on expert evidence, and procedural fairness. The central questions were whether the Tribunal had jurisdiction and whether its finding of discrimination involved an error of law.

1. Appeal dismissed. The Tribunal had jurisdiction. The pupil had been excluded for fixed periods of five and 40 days, not permanently. His name remained on the school roll, and the local education authority expressly stated that permanent exclusion was inappropriate. The exclusion provisions in section 28L therefore did not remove the claim from the Tribunal’s jurisdiction.
2. For section 28B(1)(a), the education provisions were intended to have the same meaning as materially identical employment provisions. The two questions were whether the treatment occurred for a reason relating to disability and whether the claimant was treated less favourably than others to whom that reason did not or would not apply. The comparator was therefore a pupil who was neither disabled nor behaving in the relevant way, rather than a non-disabled pupil displaying the same behaviour. This approach was supported by Clark v TDG Ltd (Trading as Novocold Ltd) [1999] ICR 951, Rowden v Dutton Gregory (a Firm) [2002] ICR 971, and the statutory Code of Practice.
3. The Tribunal’s comments about the length and circumstances of the exclusion were expressly made as commentary. They did not form part of the reasoning for the separate pastoral-support finding. Any error in those comments was therefore immaterial.
4. The Tribunal was entitled to find that the school failed to take reasonable steps under section 28C(1)(b). The relevant disadvantage arose particularly during unstructured times and the transition from Year 7 to Year 8. Reasonable measures included more active pre-planned management, personal guidance, mentoring and support in the pastoral system. The Tribunal accepted that substantial classroom support had been provided but found insufficient planned support outside lessons.
5. The Tribunal was entitled to treat the problem as one of planning and organisation rather than resources. It had sufficient evidence to conclude that the pupil’s behaviour was related to his disability, including because his difficulty coping with the school environment was itself disability-related. The school knew that pastoral support was in issue and had a fair opportunity to address it. The appeal court could interfere only for an error of law, and none was established. The school was ordered to pay the Tribunal’s costs, summarily assessed at £3,564.

The judgment itself records the appeal from the written decision of the Special Educational Needs and Disability Tribunal dated 22 July 2003. The High Court dismissed the appeal.