A, R (on the application of) v Hob Moor Community Primary School

Whether a person is disabled under the Disability Discrimination Act 1995 depends on the statutory question whether an impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. A tribunal must focus on the effect of the impairment, including its effect on continence, rather than require a severe diagnosis, severe intellectual or social impairment, or substantial difficulties in general functioning. Evidence that a child has made progress, or can perform ordinary activities, does not answer whether the ability to perform them is adversely affected. A decision applying a different or elevated test is legally flawed and must be quashed.

A, a child with global developmental delay and incontinence, appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal dismissing her disability-discrimination claim at a preliminary stage. The Tribunal concluded that she was not disabled under the Disability Discrimination Act 1995. The school and Tribunal did not oppose the appeal and consented to the decision being quashed and the matter remitted. The court nevertheless considered the appeal on its merits, while declining to give wider guidance on the statutory regime on one-sided submissions. The central issue was whether the Tribunal had applied the correct statutory test.

1. The appeal succeeded. The Tribunal’s decision was quashed, and the question whether A was disabled was remitted to a freshly constituted Tribunal.

2. The statutory question under section 1 of the Disability Discrimination Act 1995 was whether an impairment had a substantial and long-term adverse effect on A’s ability to carry out normal day-to-day activities. Section 3(3) required the Tribunal to take relevant statutory guidance into account. Schedule 1 expressly included continence and the ability to learn or understand among the relevant activities.

3. The Tribunal had correctly focused on the impact of A’s eye condition. Its treatment of global developmental delay was materially different. It concentrated on whether the difficulty was sufficiently substantial, whether A’s skills showed substantial difficulties, and whether there was severe impairment of intelligence and social functioning.

4. Those were not the statutory requirements. The Tribunal failed to address A’s lack of continence, despite medical evidence that it was likely to result from her developmental delay. A child’s progress and broad level of functioning did not determine whether an impairment had a substantial adverse effect on the ability to perform ordinary activities.

5. The court declined to undertake a wide-ranging analysis intended to provide general guidance to tribunals, since the defendant and Tribunal were not represented and the appeal was supported only by one side. The fresh Tribunal was required to apply the statutory tests.

• High Court (Administrative Court): The appeal from the Special Educational Needs and Disability Tribunal was allowed. The Tribunal’s decision of 22 March 2004 was quashed and the matter remitted for determination by a freshly constituted Tribunal.