H & Anor, R (on the application of) v Special Educational Needs Tribunals & Anor

A strike-out procedure may determine a claim only where, taking the claimant’s case at its highest, it is manifestly incapable of succeeding. It is generally unsuitable for resolving disputed facts on papers alone. In assessing disability, the court must consider the impairment, its adverse effect, whether that effect is substantial, and whether it is long-term. “Substantial” means more than minor or trivial. The assessment must focus on the claimant’s ability to perform normal day-to-day activities, including activities performed only with difficulty, rather than on achievements or activities the claimant can still perform.

The parents of MH brought a disability discrimination claim against his school under Part 4 of the Disability Discrimination Act 1995. The Special Educational Needs and Disability Tribunal struck out the claim under regulation 44 of the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002, concluding that MH was not disabled.

The parents appealed under section 11 of the Tribunal and Inquiries Act 1992. The central issues were whether the Tribunal had used the proper approach to strike out, and whether it could determine disability by analysing disputed evidence on the papers.

1. The appeal succeeded. The Tribunal’s decision was quashed and the issue of disability was remitted for further consideration. The court deliberately reached no conclusion on whether MH was disabled.
2. Regulation 44 permits summary disposal where, even assuming the claimant’s case at its highest, the claim cannot fall within the legislation. It does not justify determining disputed issues of fact on papers alone where detailed investigation, witness evidence or cross-examination may be required.
3. Section 1 of the Disability Discrimination Act 1995, read with Schedule 1, requires separate consideration of the impairment condition, adverse effect condition, substantial condition and long-term condition. The evidence established that MH had an impairment and adverse effects were not excluded merely because he could still perform some activities.
4. The Tribunal erred by treating MH’s academic progress as undermining substantial adverse effect. Following Goodwin v The Patent Office [1999] IRLR4 and Leonard v Southern Derbyshire Chamber of Commence [2001] INLR9, the assessment had to focus on what he could not do, or could do only with difficulty, and whether the effect was more than minor or trivial.
5. The Tribunal’s procedure and reasoning contained sufficient flaws to require quashing. The court ordered the claimants’ costs of the appeal, while costs relating to the earlier Tribunal hearing and negotiations were left in the case to reflect the eventual outcome.

1. Special Educational Needs and Disability Tribunal — struck out the disability discrimination claim, holding that MH was not disabled.
2. High Court (Administrative Court) — on appeal under section 11 of the Tribunal and Inquiries Act 1992, quashed the Tribunal’s decision and remitted the issue for further consideration.