Bedfordshire County Council v Dixon-Wilkinson

A local education authority’s statutory duty to provide school transport does not, by itself, determine whether a disabled pupil has suffered unlawful discrimination. When performing its transport function under the Education Act 1996, the authority may need to take reasonable steps under the Disability Discrimination Act 1995 where a disabled pupil is placed at a substantial disadvantage compared with non-disabled pupils. The tribunal must make case-specific findings on disadvantage, reasonableness, the auxiliary aids or services exception, and justification. A general transport policy and its financial implications do not dispose of those questions without findings about the particular case. Where the appellate record lacks the necessary facts, the proper course is remittal rather than determination of the underlying discrimination issues.

D, a disabled pupil with Asperger’s Syndrome, travelled to school on transport provided by Bedfordshire County Council under its statutory transport function. He wished to attend an after-school technical theatre club, but the shared school bus returned at the end of the ordinary school day. His parents requested later transport, which would have required a taxi, and the council refused.

SENDIST rejected the discrimination claim, treating the requested adjustment as an auxiliary aid or service and considering the refusal justified. On 4 November 2008, Sir George Newman, sitting in the Administrative Court, held that SENDIST had erred in law and remitted the matter: [2008] EWHC 2664 (Admin). The council appealed on the auxiliary-aid and justification issues. The central question was whether those issues could be resolved without proper findings on substantial disadvantage and the reasonableness of the requested transport.

1. Disposition. The Court of Appeal unanimously dismissed the appeal and upheld the order remitting the matter to a fresh first-tier Tribunal, formerly SENDIST, for rehearing.
2. Applicable statutory framework. Lord Justice Wall accepted that the council was performing a transport function under section 508B of the Education Act 1996. Lord Justice Aikens explained that, in performing that function, the council remained subject to the duty under section 28G(2)(b) of the Disability Discrimination Act 1995 to take reasonable steps to prevent disabled pupils being placed at a substantial disadvantage. The duty was subject to the exclusion for auxiliary aids or services and, where relevant, the statutory justification provisions.
3. Required factual inquiry. The fresh tribunal had to determine, in sequence: whether D was placed at a substantial disadvantage because he could not attend the club without suitable transport; whether providing later transport would be a reasonable step; whether the transport required fell within the auxiliary aids or services exception; and, if the duty otherwise applied, whether the refusal was justified.
4. Case-specific assessment. A general policy and the implications, including financial implications, of departing from it could not by themselves establish a substantial reason for refusing the adjustment. The tribunal had to assess the consequences of the refusal and the circumstances of D’s particular case. SENDIST’s conclusion that the claim could not succeed as a matter of law was therefore impermissible.
5. Insufficient appellate material. The Court of Appeal was a reviewing court, not a tribunal of fact. It lacked D’s relevant educational-needs statements, evidence from the school, and current factual information. Wall LJ therefore expressed no concluded view on the meaning or application of auxiliary aids or services. Aikens LJ doubted that transport could constitute an auxiliary aid, but left the question for determination after fact-finding.

1. Court of Appeal (Civil Division). On 9 July 2009, the court dismissed the council’s appeal and upheld remittal to a fresh tribunal.
2. Administrative Court, Queen’s Bench Division. On 4 November 2008, Sir George Newman held that SENDIST had erred in treating the requested transport adjustment as an auxiliary aid or service and remitted the matter: [2008] EWHC 2664 (Admin).
3. SENDIST. On 9 January 2008, the tribunal rejected the parents’ disability-discrimination claim, treating the requested transport adjustment as an auxiliary aid or service and considering the refusal justified.