The Governing Body of a School v M

Under paragraph 4(3) of Schedule 17 to the Equality Act 2010, the First-tier Tribunal has a general discretion to consider a disability discrimination claim brought out of time. The provision does not extend the statutory six-month time limit or convert the claim into one brought in time. The discretion must be exercised consciously and judicially, but the Tribunal may consider any relevant factor, including delay, reasons for delay, apparent merits, importance, prejudice and the wider public interest. The Denton relief-from-sanctions framework does not govern that discretion, although using its structure will not necessarily cause a material error of law.

M brought disability discrimination proceedings concerning the treatment and permanent exclusion of her son, C, by the School. The claim was lodged approximately seven weeks outside the six-month period in paragraph 4(1) of Schedule 17 to the Equality Act 2010. The First-tier Tribunal decided to consider the claim under paragraph 4(3), after hearing evidence on the time issue, potential remedies and the merits. It subsequently found discrimination in relation to the permanent exclusion.

The Governing Body appealed, arguing that the First-tier Tribunal had adopted an unfair procedure, applied the wrong legal test by using Denton, and reached perverse factual conclusions. The central issues were the correct approach under paragraph 4(3) and whether any error materially affected the decision.

1. The appeal was dismissed. The First-tier Tribunal’s decision did not involve a material error of law.
2. The statutory language of paragraph 4(3) differs deliberately from the “just and equitable” extensions in sections 118(1) and 123(1) of the Equality Act 2010. Paragraph 4(1) creates an absolute time bar. Paragraph 4(3) gives the First-tier Tribunal discretion to consider a claim notwithstanding that it remains out of time. It does not empower the Tribunal to treat the claim as having been brought in time.
3. The discretion must be exercised consciously and judicially. Subject to rationality and proportionality in the ordinary public law sense, the Tribunal may consider any relevant factor. These may include the length and reasons for delay, the apparent merits, the importance of the claim to the claimant or child, prejudice to either party and the wider public interest in hearing the claim. The open-textured provision does not justify a more prescriptive test.
4. The First-tier Tribunal’s reference to the three-stage approach in Denton & Others v TH White Ltd & Others did not establish a material misdirection. Read as a whole, its decision addressed whether the claim should be considered while out of time, rather than whether time should be extended. Further, if the Tribunal had applied Denton or a “just and equitable” test, it had applied a more demanding standard, so the alleged error could not have affected the outcome.
5. The Tribunal’s decision to hear the time issue alongside evidence concerning remedies and the merits was within its case-management discretion and caused no unfairness or prejudice. The challenge to the factual findings on material hindrance was an impermissible attempt to reargue the evidence. An appellate tribunal may intervene only for an error of law, not merely because another analysis of the evidence is possible.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the Governing Body’s appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 on 24 April 2026.
• First-tier Tribunal (Health, Education and Social Care Chamber): considered the late claim under paragraph 4(3) of Schedule 17 to the Equality Act 2010 and dismissed the application to strike it out as out of time. It also found disability discrimination concerning the permanent exclusion.