A Multi Academy Trust v RR

For the reasonable-adjustments duty in schools, the comparison required by the modified section 20(3) of the Equality Act 2010 is class-based. The relevant group of disabled pupils must be defined by reference to pupils disabled in the same way, or by a properly identified sub-class. The comparison is with persons who are not disabled and may involve hypothetical comparators outside the relevant special school. It is not confined to non-disabled pupils attending that school. A tribunal must identify the relevant disabled group, establish evidence of the disadvantage affecting that group, and identify the non-disabled comparator. Failure to do so may constitute an error of law requiring remission.

The respondent, the father of a disabled pupil at a special school, brought Equality Act claims against the school’s responsible body. The First-tier Tribunal dismissed all claims except one, finding that the failure to prepare a planned and documented transition plan breached the reasonable-adjustments duty under section 20(3) of the Equality Act 2010, as modified by Schedule 13.

The responsible body appealed. It argued that the First-tier Tribunal had failed to apply the requirement that substantial disadvantage be suffered by disabled pupils generally, had failed to identify the comparator group, and had made inadequate findings supported by evidence. The central issues were the meaning of “disabled pupils generally” and “persons who are not disabled” in the context of a special school.

1. Appeal allowed in part. The First-tier Tribunal’s decision was erroneous in law insofar as it found against the responsible body. That part of the decision was set aside and remitted for reconsideration.
2. Under section 20(3) of the Equality Act 2010, as modified by Schedule 13 for schools, the substantial-disadvantage trigger is class-based rather than individualised. “Disabled pupils generally” does not mean all disabled pupils. The relevant class or sub-class must be defined by reference to people disabled in the same way, having regard to the nature of the alleged provision, criterion or practice.
3. The comparator is “persons who are not disabled”, not necessarily non-disabled pupils at the same school. A hypothetical non-disabled child moving to a new school year may be an appropriate comparator, particularly where a special school has few or no non-disabled pupils. The words requiring the PCP to be applied by or on behalf of the responsible body identify the PCP within the body’s control; they do not confine the comparator.
4. The First-tier Tribunal had not clearly identified the disabled group to which its finding related. If it meant all disabled pupils, there was no evidence of the impact of the alleged PCP on anyone other than the individual pupil. It had also failed to identify what non-disabled “pupils” provided the comparison, or to address evidence concerning a hypothetical non-disabled comparator.
5. The case was remitted because the necessary issues included defining the relevant disabled group, establishing evidence of the PCP’s impact on that group, and considering the evidential approach to non-disabled comparators. Reconsideration was to be by the same panel if practicable without undue delay, or otherwise by a wholly different panel.

• First-tier Tribunal (Health, Education and Social Care Chamber): On 21 November 2022, dismissed the claims except for a finding that the responsible body had failed to make reasonable adjustments in relation to school-year transition.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal to the stated extent, set aside the adverse finding for error of law, and remitted that issue to the First-tier Tribunal.