Alex Line successful in Upper Tribunal appeal concerning disability discrimination in schools

The Upper Tribunal has recently handed down judgment on the case of Governing Body of T School v AA and RA [2023] UKUT 311 (AAC). Education law specialist, Alex Line, represented the appellant in this case concerning disability discrimination in schools.

In Governing Body of T School v AA and RA [2023] UKUT 311 (AAC), Alex Line represented the successful appellant in a case which provides important analysis of the time limit provisions of the Equality Act 2010 concerning schools (a point covered extensively in relation to Employment Tribunal jurisdiction, but hitherto not in relation to the First-tier Tribunal’s jurisdiction under that Act).

The primary time limit for bringing a claim for disability discrimination against the governing body of a school is six months. In this case, under very challenging circumstances during the pandemic, the school directed that a child with significant SEN could not attend the school premises for a time limited period of 10 weeks (which the First-tier Tribunal described as a ‘de facto’ fixed-term exclusion). The parents of the child initiated a claim after the expiry of six months from the date of that decision.

The First-tier Tribunal held that the school’s decision was a continuing act, and allowed the claim under s.15 of the Equality Act 2010 to proceed notwithstanding that it was prima facie out of time, applying paragraph 4(5)(b) of Schedule 17; and went on to find that unjustified discrimination had occurred.

The school appealed. The Upper Tribunal held that the First-tier Tribunal had failed to take into account that a material change of circumstances, which had been outside of the school’s control (the move out of the area of the child to a residential care home, which later broke down) curtailed the scope of any continuing state of affairs which might have otherwise existed, rendering the claim out of time. The First-tier Tribunal made no alternative finding that time should be extended. Therefore, that matter was remitted for redetermination. The Upper Tribunal also found that the Tribunal had not properly approached the balancing exercise required in relation to the school’s justification defence under s.15(1)(b) of the Equality Act 2010, and also remitted that issue.

In summary, the Upper Tribunal’s decision is of importance because:

• It analyses the time limit / jurisdiction provisions of the Equality Act 2010 as relating to schools, particularly paragraph 4(1) and (5) of Schedule 17 (which have not been considered in any detail in previous Upper Tribunal case law).
• In relation to the above, it summarises, and considers the applicability of, case law from the employment context in determining whether something is ‘conduct extending over a period’ (a question which can be of importance to whether a claim is in or out of time jurisdictionally).
• It considers the scope for raising points on appeal which were not argued in the proceedings below.
• It reviews the case law relating to the justification defence under s.15(1)(b) of the Equality Act 2010, which permits a defence to a claim for unfavourable treatment if it can be shown that the treatment was a proportionate means of achieving a legitimate aim.

A copy of the decision can be found here.

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Alex Line specialises in education law and has been ranked in both Chambers and Partners and Legal 500 for several years in relation to this area. His work encompasses the full spectrum of education law, including: special educational needs, admissions, exclusions, safeguarding, discrimination, civil and public law claims concerning schools, colleges and universities. He acts for individuals, local authorities, and education institutions alike. He is also well placed to assist with public law cases affecting these and associated areas.

Alex has High Court, Employment Appeal Tribunal, Upper Tribunal, and Court of Appeal experience. He has been appointed to the Attorney General’s panel of counsel to the Crown (B Panel) and the Equality and Human Rights Commission’s panel of counsel (B Panel).

News 1 Mar, 2024