B & Anor v The Proprietor of St Dominic's Grammar School

For a claim under section 15 of the Equality Act 2010, the question whether the relevant “something” arose in consequence of disability is an objective causation question. It does not depend on the disabled person’s or decision-maker’s account of motive. A tribunal must consider relevant expert evidence about how the disability may manifest. Apparent deliberateness does not by itself exclude a causal connection.

The shifting burden in section 136 applies to every liability element, including that causal connection. Where there is evidence capable of establishing the link, the respondent must prove that no such connection existed in the individual case.

The appellants alleged that their five-year-old daughter, B, had been subjected to discrimination arising from disability when the respondent school imposed a one-day fixed-term exclusion and excluded her from its after-school club. The claimed disabilities were dyspraxia and social, emotional and mental health difficulties.

The First-tier Tribunal dismissed the section 15 claims. It found that the school’s treatment was because of B’s physical behaviour towards other children, but that the appellants had not proved a causal connection between that behaviour and disability. It did not consider justification.

The parents appealed on the grounds that the tribunal had mishandled the expert evidence and failed to apply the statutory shifting burden of proof.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the case was remitted to a differently constituted First-tier Tribunal for a complete rehearing.

2. Under section 15 of the Equality Act 2010, the tribunal had to determine objectively whether the behaviour that caused the exclusions arose in consequence of B’s physical or mental impairments. That enquiry was distinct from the school’s reason for imposing the exclusions. The school’s reason was agreed to be B’s behaviour.

3. The First-tier Tribunal failed to take account of material expert evidence. The educational psychologist’s evidence expressly identified lashing out, easy arousal and dysregulation as manifestations of B’s social, emotional and mental health difficulties. Its repeated conclusion that there was no evidence of a connection therefore disclosed an error of law. If it rejected or discounted that evidence, it was required to give adequate reasons.

4. The tribunal also misdirected itself by treating B’s apparent deliberateness, and factual witnesses’ accounts of what she did, as if they determined whether her conduct was causally related to disability. Those matters could be relevant, particularly to physical impairment, but could shed only limited light on whether behaviour was related to social and emotional impairment. Deliberate or retaliatory conduct may still be causally connected to disability.

5. The tribunal further erred by failing to direct itself on section 136. The statutory burden applies both to the reason for unfavourable treatment and to the objective causal connection between the relevant “something” and disability. Given the significant expert evidence, the tribunal could not simply resolve evidential doubt against the appellants without considering whether the burden had shifted. If the appellants established facts from which the causal link could be inferred, the school had to prove that no such link existed in the circumstances.

6. The Upper Tribunal did not remake the decision. Causation required fresh findings, and the school’s unaddressed justification defence required findings on legitimate aim, effectiveness, impact and proportionality.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the case for rehearing.

• First-tier Tribunal (Health, Education and Social Care Chamber): on 12 December 2023 dismissed the claims under section 15 of the Equality Act 2010, finding no proved causal connection between B’s behaviour and disability.