T, R (on the application of) v OL Primary School & Anor

Under Part IV of the Disability Discrimination Act 1995, less favourable treatment of a disabled pupil is justified only where the reason is material to the particular circumstances and substantial, and the treatment would remain justified after taking the reasonable-adjustments duty into account.

The statutory scheme does not require reasonable adjustments to be considered before justification. The two questions are cumulative safeguards, and a tribunal may address them in either order, provided both are properly determined. A tribunal need not examine possible adjustments in minute detail, but must make its own objective assessment of what would be reasonable.

R, a disabled pupil at a mainstream primary school, was excluded for fixed periods on ten occasions following violent and disruptive conduct. The Special Educational Needs and Disability Tribunal accepted that the exclusions were less favourable treatment, but found them justified and concluded that the school had made reasonable adjustments.

Mrs T brought a statutory appeal limited to points of law under section 11 of the Tribunals and Inquiries Act 1992. She argued that the Tribunal had applied the justification and reasonable-adjustments questions in the wrong order, had failed to assess possible adjustments, and had misunderstood the guidance concerning exclusions for health and safety reasons.

1. The appeal was dismissed. The Tribunal had correctly concluded that the exclusions were justified and that the school had made reasonable adjustments.
2. Under sections 28B(7) and (8) of the Disability Discrimination Act 1995, justification requires both a reason material to the particular case and a substantial reason. In addition, where the reasonable-adjustments duty applies, the treatment must remain justified even if that duty has been complied with. The two requirements operate as cumulative hurdles.
3. The Act, the Code of Practice and the relevant exclusions guidance do not prescribe an order in which justification and reasonable adjustments must be considered. A tribunal may consider justification first. If the reason is not material and substantial, no further issue arises. If it is, the treatment may still fail because reasonable adjustments would have prevented the disadvantage.
4. Mid-Staffordshire General Hospitals NHS Trust v Cambridge concerned a failure to assess what adjustments were reasonable and did not establish a required sequence. Collins v Royal National Theatre Board and Law v Pace Micro Technology Plc established that the adjustments question and general justification question are cumulative, not that one must invariably precede the other.
5. The Tribunal had made its own objective assessment of the possible adjustments. It was not required to identify every conceivable adjustment in minute detail. The school was entitled to take account of the protection of other pupils and staff, education, welfare and discipline. The guidance did not confine health-and-safety exclusions to cases involving infectious disease or other medical conditions.
6. The order was for the claimant to pay the first respondent’s costs after 13 April 2005 and costs up to and including that date, subject to liberty to apply within 14 days to establish any protection arising from Legal Services Commission funding. Costs were subject to detailed assessment if not agreed.

High Court (Administrative Court): the statutory appeal from the decision of the Special Educational Needs and Disability Tribunal was dismissed. The Tribunal’s findings that the exclusions were justified and that reasonable adjustments had been made were upheld.