Olchfa Comprehensive School v IE & Ors

Under the disability discrimination provisions governing schools, the duty to take reasonable steps in relation to education is wide enough to include steps concerning exclusion. Where a school fails without justification to comply with that duty, the question under section 28 B(8) is whether the unfavourable treatment would nevertheless have been justified if the duty had been performed. That is not a conventional causation test. A formal medical diagnosis is not essential to establish disability where the statutory definition is otherwise satisfied. A tribunal must address the statutory justification requirements expressly and give adequate reasons for its conclusions.

The governing body appealed against a decision of the Special Educational Needs and Disability Tribunal concerning the temporary exclusion of JE, a pupil aged 13. The Tribunal found that JE was disabled within the meaning of the Disability Discrimination Act 1995, that his exclusion amounted to unlawful discrimination, and ordered a written apology and disability-equality training for staff.

The appeal challenged the findings on disability, knowledge, less favourable treatment, justification, the duty to take reasonable steps, and remedy. The central issues included whether the duty under section 28 C extended to exclusion and how section 28 B(8) operated where reasonable steps had not been taken.

1. The appeal succeeded to the extent that the Tribunal’s decision was quashed on the section 28 B(8) issue. The matter was not remitted for rehearing.

2. A formal diagnosis was not required to establish disability. Although the Tribunal’s analysis of the alleged impairment and its substantial effect was limited, there was sufficient evidence for it to conclude that JE was disabled under section 1 and Schedule 1 of the Disability Discrimination Act 1995. The absence of a diagnosed mental illness meant that Schedule 1 paragraph 1(1) was not engaged.

3. Section 28 B(4) could provide a defence based on lack of knowledge in a less favourable-treatment claim. It differed from section 28 B(3), because subsection (4) did not make the effect of the lack of knowledge an express part of the defence. The Tribunal had failed to make the necessary finding. Nevertheless, that error alone would not have justified quashing the decision, particularly as the school had not in substance relied on lack of knowledge as making a difference.

4. The duty under section 28 C(1) to take reasonable steps in relation to education was sufficiently wide to include steps concerning exclusion. The court followed the conclusion reached in Governing Body of PPC v DS and others [2005] EWHC 1036 (Admin). The omission of an express reference to exclusion from section 28 C did not exclude it.

5. Section 28 B(8) required the Tribunal, after finding an unjustified failure to comply with the section 28 C duty, to decide whether the treatment would nevertheless have been justified even if the duty had been performed. The burden rested on the school. The test did not require proof that the reasonable steps would have prevented the exclusion, and was not a test of causation. The Tribunal had not addressed that statutory question, despite finding that the school had failed to take reasonable steps.

6. The remedy was not irrational or disproportionate on the assumptions then made. It fell within the Tribunal’s permissible range of choice. No declaration was appropriate on the knowledge issue.

This was an appeal to the High Court (Administrative Court) from a decision of the Special Educational Needs and Disability Tribunal issued on 20 July 2005. Earlier Tribunal decisions had been quashed by consent, but the present judgment was not remitted for a further hearing.