The Governing Body of School T v AA & Anor

For limitation purposes, a decision excluding a disabled pupil from school may constitute conduct extending over a period rather than a one-off act with continuing consequences. The distinction depends on the evidence and the continuing relationship between the parties. A substantial change in circumstances may end the continuing act, particularly where later events result from decisions of another public body.

In a discrimination arising from disability claim, proportionality requires separate consideration of each legitimate aim, the respondent’s need to achieve it, the discriminatory detriment, and whether less discriminatory measures were reasonably available. The decision-maker must distinguish the respondent’s conduct from actions taken by other bodies.

The parents of a disabled child claimed under section 15 of the Equality Act 2010 that a school discriminated against him by ceasing to provide on-site education. The First-tier Tribunal found that the claim was in time because the failure was a continuing act and held that the treatment was not objectively justified.

The school appealed. It argued that the decision was a one-off act with continuing consequences, that later events had ended any continuing act, and that the First-tier Tribunal had erred in its proportionality analysis. The Upper Tribunal also considered whether treatment after the child’s placement in a care home remained treatment by the school.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for error of law and the remaining issues were remitted to an identically constituted panel, or to a differently constituted panel if necessary.
2. Under paragraph 4(5)(b) of Schedule 17 to the Equality Act 2010, the question is whether the alleged discrimination was conduct extending over a period, rather than a one-off act with continuing consequences. The employment authorities provide general principles, but comparisons must be applied cautiously in the education context.
3. Until 6 April 2021, the child’s exclusion from the school site could properly be regarded as conduct extending over a period. The school maintained an ongoing relationship with the child, intended to provide home tutoring, and had not fixed a definitive period for his return.
4. After the section 20 agreement with the local authority, the decision that the school was no longer suitable, and the child’s placement in a care home on 6 April, the circumstances materially changed. Those later decisions were not decisions of the school. The school’s continuing naming in the EHC plan did not establish a continuing act after that date. Any later disadvantage was a continuing consequence of the earlier decision. The limitation period therefore ran from 6 April.
5. The First-tier Tribunal sufficiently identified the legitimate aims relied upon, including protecting the health, safety and welfare of the child, staff and other pupils and maintaining the behaviour policy. However, it failed to assess adequately the school’s need to achieve those aims, particularly in light of the injuries sustained by staff, or to distinguish the school’s decisions from those of the local authority.
6. Proportionality required consideration of the importance of the aim, rational connection, whether the measures were reasonably necessary and whether a fair balance was struck between the aim and the detriment to the child. The whole proportionality issue required reconsideration.
7. Treatment after 6 April was not unfavourable treatment by the school because the child was then placed elsewhere by the local authority and the school considered it no longer responsible for his education.
8. The remitted issues were whether time should be extended under paragraph 4(3) of Schedule 17 and, if so, whether the removal from school struck a fair balance under section 15(1)(b).

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision of 22 June 2022, and remitted the limitation-discretion and proportionality issues.
• First-tier Tribunal (Health, Education and Social Care Chamber): found the claim in time and held that the school had not established objective justification.