VK v Norfolk County Council & Anor

On an appeal from a SENDIST decision, the court must identify the treatment complained of before selecting the comparator under the Disability Discrimination Act 1995. Where a disabled child receives education otherwise than at school, the comparison is ordinarily with pupils receiving mainstream education, not merely with other children receiving the same special service. A breach of the local education authority’s duty under section 19 of the Education Act 1996 does not automatically establish disability discrimination. Resources may be relevant to justification under section 28B, but an authority cannot rely simply on inadequate resources without explaining why the service was not adequately resourced. Statutory reasons supplied with a tribunal decision cannot ordinarily be substantially supplemented on appeal.

VK appealed against the decision of the Special Educational Needs and Disability Tribunal dismissing her claim that Norfolk County Council had discriminated against her disabled son in the provision of education. The complaints concerned the failure to identify a school promptly, the absence of education for a period, and the limited and allegedly inappropriate Visiting Teacher Service provision.

The appeal challenged the Tribunal’s comparator, its approach to the statutory requirement that the treatment relate to disability, its treatment of resources and justification, the rejection of expert evidence, and the adequacy of its reasons. The central procedural issue was whether inadequate reasons could be supplemented by remitting the decision to SENDIST.

1. The Tribunal’s decision was quashed. Its reasons did not explain its conclusion that the treatment was justified. The case was not remitted for supplementary reasons.
2. Under section 28B of the Disability Discrimination Act 1995, the tribunal must identify the treatment complained of, the appropriate comparators, whether the treatment was less favourable, whether the reason related to disability, and, where relevant, whether the treatment was justified.
3. The treatment complained of was the educational provision made for the child, not merely the quantity of Visiting Teacher Service received. The appropriate comparison was with pupils receiving ordinary mainstream education, rather than with other children receiving special arrangements under section 19 of the Education Act 1996. Otherwise an authority could avoid liability by treating all children unable to attend school inadequately.
4. A breach of section 19 is not itself unlawful discrimination. Section 19 is relevant because it identifies a function to which section 28F of the DDA applies. The DDA still requires a comparison with the actual treatment of others.
5. The statutory justification test requires the reason for the less favourable treatment to be both material to the particular circumstances and substantial. Resources may be considered, but an authority cannot simply rely on insufficient resources within its service. It must provide a good and substantial explanation for that position. The Tribunal had made no adequate finding on this issue, and had not explained why the initial provision or later increase in provision was selected.
6. Regulation 36 of the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 required reasons to accompany the decision. Substantial supplementation after the event would be inconsistent with that requirement and with the approach in R (Ermakov) v Westminster City Council [1996] 2 All ER 302. The court therefore declined to adjourn the appeal to invite further reasons.
7. The rejection of the expert reports was not, by itself, sufficient to justify quashing the decision. The adequacy of reasons was assessed objectively by the court, not by reference to a party’s subjective understanding.

1. High Court (Administrative Court) — quashed the SENDIST decision because its reasons were inadequate and refused to remit the matter for supplementary reasons.
2. Special Educational Needs and Disability Tribunal — dismissed the disability discrimination claim on the merits, while holding that claims concerning acts before 21 December 2002 were out of time.