NE & Anor v Governing Body of a Primary School

A tribunal must determine the alleged discriminatory act that forms the subject matter of the claim before it. Under Equality Act 2010, Schedule 17, paragraph 3, the asserted contravention must have occurred before the claim was made. A later event, not alleged as discriminatory conduct in the claim, need not be determined merely because it concerns the same placement.

Imperfect drafting of issues or findings does not amount to a material error of law where, read fairly and as a whole, the decision resolves the pleaded allegation. An appellate tribunal may not revisit fact-finding unless it discloses legal error, such as perversity, irrationality, or a finding no reasonable tribunal could reach.

The appellants brought a disability discrimination claim concerning their young child, O. They alleged that the respondent school withdrew an offered nursery place in late 2022 or early 2023 because of O’s disabilities and associated education, health and care plan process.

The First-tier Tribunal found that O was disabled but dismissed the claim. It found that the school’s statement that it was unsuitable related to the education, health and care plan consultation and that the nursery place had not been withdrawn at the time alleged.

Permission to appeal was granted because the First-tier Tribunal’s references to the placement appeared potentially inconsistent and it had not expressly addressed whether a later withdrawal in April 2023 was discriminatory. The central issue was whether those features disclosed a material error of law.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.
2. The Upper Tribunal held that the claim concerned the alleged withdrawal of the nursery place in late 2022 or early 2023, when the school informed the appellants that it was not suitable for O’s needs. It did not allege that a later withdrawal in April 2023 was itself discriminatory. Paragraph 3 of Schedule 17 to the Equality Act 2010 requires the responsible body’s alleged contravention to have occurred before the claim was made. The scope of the claim therefore confined the issues the First-tier Tribunal had to decide.
3. Read fairly, in its entirety and against the parties’ cases, the First-tier Tribunal’s decision found that the nursery place was not withdrawn at the time alleged. Its less clear references to the place remaining open until April 2023 did not create a material inconsistency. The tribunal was not required to make a finding on whether a later withdrawal was discriminatory, because that was not the conduct pleaded as the claim.
4. The Upper Tribunal nevertheless observed that the First-tier Tribunal should have expressly identified the discriminatory conduct alleged and framed the issues by reference to it. That approach would have made its decision clearer.
5. The remaining challenges sought to reopen findings of fact. Applying Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, the Upper Tribunal held that appellate intervention requires legal error, such as perversity, irrationality, or a finding no reasonable tribunal could reach. The First-tier Tribunal had considered the evidence and was entitled to rely on the respondent’s witnesses. Later events did not show that relevant material had been ignored. In context, the reasonable-adjustments contention was subsumed within the allegation that the nursery place had been withdrawn because of O’s needs.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal in [2025] UKUT 148 (AAC), holding that the First-tier Tribunal decision disclosed no material error of law.
• First-tier Tribunal (HESC Chamber): on 22 December 2023, found that O was disabled but dismissed the disability discrimination claim.