WS v Whitefield Schools & Centre & Anor

On a statutory appeal from a specialist tribunal, the High Court will not interfere with factual findings or evaluative judgments unless the tribunal applied the wrong legal test, acted irrationally or reached a conclusion outside the range reasonably open to it.

Under the Disability Discrimination Act 1995, justification requires the reason for less favourable treatment to be material to the circumstances of the particular case and substantial. The tribunal must also consider reasonable adjustments, but the possibility of an adjustment does not itself determine whether less favourable treatment is justified.

The appellant challenged a decision of the Special Educational Needs and Disability Tribunal dated 12 November 2007. The tribunal had rejected complaints concerning delay in returning his severely autistic son to Whitefield School, restrictions on access to swimming during reintegration, and the adequacy of risk-assessment arrangements. It had upheld a separate complaint concerning a fixed-term exclusion, but that finding was not under appeal.

The appeal alleged misdirection under the Disability Discrimination Act 1995, failure to address pleaded issues, irrationality, procedural unfairness and breach of Article 6. The central issues were whether the tribunal had applied the statutory tests correctly, whether its factual and evaluative conclusions were irrational, and whether its informal procedure was unfair.

1. Appeal dismissed. The tribunal’s order stood. The tribunal had applied the correct legal approach and its reasons were adequate.
2. Under sections 28B and 28C of the Disability Discrimination Act 1995, the tribunal had to determine whether the treatment was disability-related, less favourable, and justified, and whether reasonable adjustments were available. The statutory requirement that justification be material to the circumstances of the particular case and substantial remained applicable. The tribunal’s reference to reasonable adjustments did not disclose a material misdirection, since its reasoning showed that it had understood the statutory justification test.
3. The court would not reweigh evidence or interfere with the tribunal’s factual assessment merely because another view was possible. Intervention required an obvious and significant error, irrationality or perversity. The tribunal was entitled to accept that a phased reintegration, staff training, relationship-building and risk assessment were reasonable after a lengthy absence from school.
4. The tribunal’s different conclusions on the fixed-term exclusion and swimming restriction were not inconsistent. It could find that risk assessment did not justify excluding the pupil from the school altogether, while finding that a specific assessment was necessary before access to a swimming pool could safely resume, having regard to risks to the pupil, other users and staff.
5. The informal procedure did not breach Article 6. The appellant had disclosure, knew the substance of the opposing case, could call evidence, cross-examine witnesses and make submissions. The tribunal was permitted to control its procedure and was not required to rehearse every piece of evidence or document in its decision.
6. The application for leave to appeal was refused because there was no realistic prospect of success and no compelling reason for an appeal. A transcript was ordered at public expense.

Special Educational Needs and Disability Tribunal: On 12 November 2007, dismissed the complaints concerning delayed reintegration and restrictions on swimming, while finding discrimination in relation to the fixed-term exclusion.

High Court (Administrative Court): The statutory appeal was dismissed and the tribunal’s order stood.