SS v Proprietor of an Independent School (Special Educational Needs)

In a claim under section 15 of the Equality Act 2010, the tribunal must separately consider unfavourable treatment, its reason, whether that reason arose in consequence of disability, knowledge of disability, and justification. Refusing a benefit or treat may satisfy the low threshold for unfavourable treatment, even where it was not required to meet the disabled person’s needs. In a reasonable-adjustments claim, the tribunal must identify the relevant provision, criterion or practice and the nature and extent of the substantial disadvantage before assessing reasonableness. An EHCP does not remove a school’s duty to make reasonable adjustments. The EHCP framework is only one factor in deciding what is reasonable. A failure to make reasonable adjustments may also undermine justification under section 15.

The parents of S appealed against a decision of the First-tier Tribunal dismissing disability-discrimination claims concerning S’s permanent exclusion from an independent school, refusal of an additional therapy-dog session, and alleged failures to make reasonable adjustments. Permission to appeal was granted on limited grounds concerning the application of section 15, the reasonable-adjustments duty, proportionality, and procedural fairness. The Upper Tribunal determined the appeal on the papers. The central issues were whether the First-tier Tribunal had applied the statutory sequence correctly, identified the PCP and disadvantage in the reasonable-adjustments claims, and properly assessed the proportionality of exclusion.

1. Appeal allowed in part. The First-tier Tribunal’s decision involved material errors of law in the section 15 claim concerning permanent exclusion, the section 15 claim concerning the additional therapy-dog session, and four reasonable-adjustments claims concerning staff training, a positive behaviour plan, 1:1 teaching-assistant support, and support for social, emotional and mental-health needs. Those parts of the decision were set aside under section 12 of the Tribunals, Courts and Enforcement Act 2007 and remitted to a fresh First-tier Tribunal.
2. Section 15 required a sequential analysis. The first question was whether S had been treated unfavourably. The fact that the therapy-dog session was a treat rather than provision required by S’s disability was not determinative at that stage. Refusal of a treat could satisfy the low threshold for unfavourable treatment, although the tribunal would decide that question objectively on the facts. The link to disability arose principally at the later question whether the reason for treatment was something arising in consequence of disability.
3. The First-tier Tribunal had wrongly treated the absence of a therapeutic need for the additional session as determinative of unfavourable treatment. It had also failed to make findings about the session being a treat, its impact on S, or justification. The claim therefore required reconsideration.
4. For reasonable adjustments, the tribunal had to identify the PCP, whether it caused S a substantial disadvantage compared with non-disabled pupils, and the nature and extent of that disadvantage before deciding what adjustments were reasonable. The First-tier Tribunal expressly failed to follow that sequence.
5. The Equality Act 2010 contains no exception for pupils with EHCPs, independent schools, special schools, or schools with a mainstream ethos. The EHCP framework and available local-authority support are relevant circumstances, but carry no special weight. The school must objectively assess what is reasonable, including cost, effectiveness, resources, the reasons for attendance, and the availability and reality of EHCP support. The school must fund reasonable adjustments and cannot require the disabled pupil or parents to pay, subject to any voluntary contribution being relevant to reasonableness.
6. The exclusion proportionality assessment was materially flawed because it relied on the finding that the reasonable-adjustments duty had been complied with, while that finding was itself legally erroneous. A prior failure to make reasonable adjustments may prevent justification under section 15. The First-tier Tribunal was not, however, procedurally unfair in rejecting the expert evidence about mental-health impact as speculative.
7. The unaffected findings on the informal-exclusion claim and four other reasonable-adjustments claims remained final and binding.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed in part; the First-tier Tribunal decision of 26 October 2022 was set aside only in relation to specified claims and those claims were remitted to a fresh tribunal.
• First-tier Tribunal (Health, Education and Social Care Chamber) (Special Educational Needs): dismissed the disability-discrimination claims in its decision dated 26 October 2022 under number EH936/22/00230.