M & Anor v SW School & Anor

For disability discrimination, “substantial” means more than minor or trivial. The tribunal must assess separately the impairment, adverse effect, substantiality and long-term effect requirements. A person’s ability to perform activities is not conclusive of whether that ability has been impaired.

A specialist tribunal may use its expertise, but must address substantial points, explain its decision and deal expressly with expert evidence it rejects. It should give the parties an opportunity to respond where appropriate. Failure to do so may justify quashing and remittal.

Mr and Mrs M appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal dated 21 July 2004. The Tribunal had dismissed their daughter’s claim that SW School unlawfully discriminated against her by not allowing her to transfer automatically into Year 3.

The Tribunal concluded that the child was not disabled under section 1 of the Disability Discrimination Act 1995. The appeal concerned substantiality, corrective glasses, mobility, speech difficulties, expert evidence and adequacy of reasons.

1. Appeal allowed. The Tribunal’s decision was quashed and the claim was remitted to a differently constituted tribunal.
2. Under section 1(1) of the Disability Discrimination Act 1995, read with Schedule 1, paragraph 4(1), the Tribunal had to assess separately impairment, adverse effect, substantiality and long-term effect. The substantiality question required consideration of whether the effect was more than minor or trivial.
3. The inquiry concerned the impairment’s effect on the capacities and activities identified in Schedule 1, paragraph 4(1). The fact that a person could carry out an activity did not itself establish that the ability to carry it out was unimpaired. Correctable visual impairment was subject to Schedule 1, paragraph 6.
4. The Tribunal had acted unlawfully in relation to the child’s visual, mobility and speech difficulties. Its reasoning did not adequately address the substantial points raised, including the treatment of expert evidence and the evidential basis for its conclusions.
5. A specialist tribunal may use its expertise, but if it rejects uncontradicted expert evidence it must indicate that and, where appropriate, give the parties an opportunity to respond. It must provide reasons explaining the basis of its decision and should obtain missing basic information where necessary.
6. The fresh tribunal was required first to determine whether the child was disabled. If so, it had then to consider whether she had been discriminated against and determine the remaining issues. There was no order for costs, and an anonymity order was made.

1. Special Educational Needs and Disability Tribunal: dismissed the claim on 21 July 2004, holding that the child was not disabled under the Disability Discrimination Act 1995.
2. High Court (Administrative Court): on 22 October 2004 allowed the appeal, quashed the Tribunal’s decision and remitted the claim to a fresh tribunal.