GP v The Lime Trust

The First-tier Tribunal deciding a school disability discrimination claim is confined to the jurisdiction conferred by the Equality Act 2010. It need not determine whether a public authority complied with the public sector equality duty in section 149 when deciding whether treatment under section 15 was a proportionate means of achieving a legitimate aim. Compliance with section 149 may bear evidentially on justification, particularly where there has been no meaningful consideration of the equality issue, but it is not an additional legal element of the section 15 test. A breach of section 149 is enforceable by judicial review, not as a private-law claim before the First-tier Tribunal.

The appellant appealed against the First-tier Tribunal’s dismissal of her disability discrimination claim against the proprietor of her son’s school. The claim concerned remote learning and the refusal to permit the child to return to school during the first coronavirus lockdown. It relied on discrimination arising from disability under sections 15 and 85(2) of the Equality Act 2010, and failures to make reasonable adjustments under sections 20, 21 and 85(6).

The sole ground of appeal concerned the tribunal’s treatment of the public sector equality duty in section 149. The central questions were whether the First-tier Tribunal had jurisdiction to determine compliance with that duty, and whether section 149 compliance was legally required when assessing justification under section 15(1)(b).

1. Appeal dismissed. The First-tier Tribunal’s decision was not affected by an error of law. Its substantive findings under sections 15, 20, 21 and 85 of the Equality Act 2010 were not challenged.
2. Under sections 113, 116 and Part 2 of Schedule 17 to the Equality Act 2010, the First-tier Tribunal’s jurisdiction was limited to determining whether the responsible body had contravened Chapter 1 of Part 6 because of disability. That jurisdiction did not include a freestanding claim that the respondent had breached section 149.
3. Compliance with section 149 is not a legally necessary component of justification under section 15(1)(b). Section 15 asks whether the unfavourable treatment was a proportionate means of achieving a legitimate aim. The statutory scheme permits that question to be determined independently of compliance with section 149.
4. The authorities relied on by the appellant did not establish a contrary rule. Hussein and SG showed, at most, that failure to consider equality issues may create evidential difficulties in proving justification. In Elias, the Court of Appeal accepted that indirect discrimination could still be justified notwithstanding breach of the equivalent equality duty.
5. A finding made in judicial review that a public authority failed to comply with section 149 could nevertheless be relevant evidence in a later section 15 assessment. A complete failure to consider the discriminatory problem may mean that justification cannot be demonstrated. That possibility did not make section 149 compliance an issue the First-tier Tribunal was required to decide.
6. The tribunal’s consideration of section 149 was therefore legally irrelevant. It was entitled on the evidence to find that excluding the child from school was proportionate to the legitimate aim of protecting returning pupils and staff from Covid-19 transmission.

• First-tier Tribunal (Health, Education and Social Care Chamber): dismissed the disability discrimination claim on 3 August 2021 under case number EH908/20/00002.
• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal had not made an error of law.