RB v Calderdale Metropolitan Borough Council

The statutory regimes governing special educational needs and disability discrimination are distinct. An appeal concerning special educational provision under Part 3 of the Children and Families Act 2014 does not require the First-tier Tribunal separately to determine the reasonable adjustments owed under the Equality Act 2010. The definition of disability is borrowed from the Equality Act, but the duties, responsible bodies and appellate jurisdiction remain different. The statutory Code of Practice cannot impose a duty inconsistent with the legislation. A tribunal must apply the statutory scheme even if guidance appears to point otherwise.

R, an 18-year-old disabled young person with inflammatory bowel disease, anxiety and low mood, appealed against sections B and F of an EHC Plan. The First-tier Tribunal amended parts of the plan and made recommendations, but refused requested provision for accommodation near school and additional mental-health support.

R argued that the tribunal should have considered the reasonable adjustments required under the Equality Act 2010, particularly in light of paragraph 1.35 of the 2015 Special Educational Needs and Disability Code of Practice. He also argued that the tribunal should have amended the plan’s outcomes. The issue was whether omission of those matters involved an error of law.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve a material error of law and stood.
2. There is an interface between the Equality Act 2010 and Part 3 of the Children and Families Act 2014. Section 83(3) of the 2014 Act adopts the Equality Act definition of disability. Both regimes may address barriers to learning.
3. That overlap does not merge the statutory schemes. Under section 42 of the 2014 Act, the local authority must secure the special educational provision specified in an EHC Plan. Under section 85 of the Equality Act, the duty to make reasonable adjustments is imposed on the responsible body of the school.
4. A First-tier Tribunal hearing an appeal under section 51 of the 2014 Act is not required simultaneously to determine the reasonable adjustments owed under the Equality Act. The fact that provision made under an EHC Plan may in practice amount to a reasonable adjustment does not alter the tribunal’s jurisdiction or task.
5. Paragraph 1.35 of the Code should not be read as imposing such a duty. Even if it were read in that way, it would be inconsistent with the clearly delineated statutory regimes and could not be followed. The Code cannot override the statute, as explained in Staffordshire County Council v JM [2016] UKUT 0246 (AAC) and Devon CC v OH (SEN) [2016] UKUT 0292 (AAC).
6. The tribunal was not under an inquisitorial duty to explore the Equality Act issue. The evidence and submissions did not make the issue sufficiently apparent. References to reasonable adjustments in the EHC Plan did not create such a duty.
7. There is no right of appeal against the specification of outcomes under section 51(2)(c), although consequential amendment may be possible where a tribunal has recast the SEN and provision. The tribunal had adequately considered the outcomes and gave sufficient reasons for leaving them unchanged.

• Upper Tribunal (Administrative Appeals Chamber): RB v Calderdale Metropolitan Borough Council [2022] UKUT 136 (AAC) dismissed the appeal and held that the First-tier Tribunal had made no error on a point of law.
• First-tier Tribunal (HESC Chamber): decision dated 20 June 2021, amended and re-issued on 30 June 2021 (ref. EH381/21/00001V), allowed the appeal in part, amended sections B and F of the EHC Plan, made recommendations concerning other sections, and refused the requested accommodation provision.