N, R (on the application of) v London Borough of Barking & Dagenham Independent Appeal Panel

An appeal panel deciding permanent exclusion is not legally required to consider an earlier disability tribunal decision concerning different exclusions, periods and evidence, unless estoppel, statute or irrationality principles require it. The panel may focus on the later conduct and the support measures then adopted.

The same statutory wording in different parts of the same Act ordinarily has the same meaning. Following [2008] UKHL 43, the comparator under section 28B(1) is a person who behaved in the same way but did not have the disability. The appeal was dismissed.

N, a pupil with ADHD, was permanently excluded from a maintained comprehensive school after repeated disruptive and defiant behaviour between September and November 2006. Her mother appealed to the respondent independent appeal panel and alleged disability discrimination.

The panel dismissed the appeal and declined to consider earlier fixed-term exclusions and a SENDIST decision which had found unlawful discrimination in relation to those events. The Administrative Court granted permission to apply for judicial review but dismissed the claim: [2008] EWHC 390 (Admin). The appeal concerned whether the panel had been required to consider the earlier decision and whether it gave adequate reasons on discrimination, including the proper comparator under section 28B(1) of the Disability Discrimination Act 1995.

1. Appeal dismissed. The panel was under no legal obligation to take the earlier SENDIST decision into consideration. Its decision was properly reasoned and based on the evidence before it.
2. Outside cases involving estoppel or a statutory requirement to consider a particular matter, failure to take account of an earlier decision is unlawful only if the omission is Wednesbury unreasonable. The panel was entitled to decide the later appeal directly by examining the later incidents, the school’s contemporaneous strategy, the alleged discrimination and the appropriateness of permanent exclusion.
3. The earlier SENDIST decision did not control the later appeal. The bodies had different jurisdictions, and the evidence and periods differed. The panel’s conclusion about the school’s later efforts did not nullify or undermine SENDIST’s earlier conclusion on the evidence then before it.
4. For section 28B(1) discrimination, the same statutory formula should ordinarily bear the same meaning throughout the Act. Applying [2008] UKHL 43, the relevant comparator was someone who behaved in the same way as N but did not have her disability. The alternative reasonable-adjustments form of discrimination under section 28B(2) reinforced that conclusion.
5. Lord Justice Rix added that, in a different case where earlier fixed-term exclusions and a later permanent exclusion materially overlapped, a panel might need to consider the total history. Permanent exclusion is normally a last resort. That observation did not make this panel’s omission an error of law.

• Court of Appeal (Civil Division) — Appeal from the Administrative Court dismissed. The court upheld the decision of Mr Michael Supperstone QC, sitting as a deputy High Court judge, reported at [2008] EWHC 390 (Admin).
• Administrative Court — Permission to apply for judicial review was granted, but the claim was dismissed.
• Independent Appeal Panel — Appeal against permanent exclusion dismissed.