IN THE UPPER TRIBUNAL			Appeal No.  HS/1244/2014
ADMINISTRATIVE APPEALS CHAMBER

Appellant:	Mrs C
Respondent: 	Governing Body of Hope Academy

DECISION OF THE UPPER TRIBUNAL
Upper Tribunal Judge Fordham QC

ON APPEAL FROM:

Tribunal:	The First-Tier Tribunal (HESC Chamber)
Tribunal Case No: 	SE342/13/00002
Hearing Date: 	16 December 2013

IN THE UPPER TRIBUNAL			Appeal No.  HS/1244/2014
ADMINISTRATIVE APPEALS CHAMBER

Before:	Upper Tribunal Judge Fordham QC

C v Governing Body of I School

Attendances:

For the Appellant:		Aileen McColgan and Rosie Bayley

For the Respondent:	Tom Cross and David Horan

Decision: The appeal is dismissed.

REASONS FOR DECISION

Introduction

1.	This case is about a 13 year-old boy (“K”) who attended a school (“I School”). The school excluded him, temporarily at first then permanently, in consequence of a “physical assault against a pupil” as described in a letter to K’s parents from the Principal of I School dated 27 March 2013. The Governing Body upheld permanent exclusion for reasons given in a letter of 6 June 2013, referring to serious breach of the school’s behaviour policy because of an assault on a student causing injury, an attempted assault on a member of staff and abuse towards a member of staff. After reconsideration in the light of recommendations of an Independent Review Panel, the Governors maintained the permanent exclusion decision for reasons given in a letter dated 11 September 2013. That letter recorded that the Governors did not feel the school could have done any more to help and support K and had explored all strategies available. 

2.	K’s mother (“Mrs C”) made a disability discrimination claim. She challenged the exclusion from school, and in doing so she challenged the idea that I School had done all they should have done to help and support K. The discrimination claim was brought as a challenge against, and only against, K’s permanent exclusion from the school. In the context of that challenge to the exclusion from school, Mrs C claimed that I School had failed to recognise K’s learning difficulties and his emotional and behavioural problems, and that it had failed to provide the support K needed. Mrs C’s claim said K “has a diagnosis of Autistic Spectrum Disorder” and “I feel he has been the victim of disability discrimination by the treatment he has endured and lack of provision from [I School]”. The claim was contested by the Respondent, the Governing Body of I school.

3.	Mrs C’s claim was rejected by the First-tier Tribunal (“the Tribunal”) on 19 December 2013. Permission to appeal was refused on the papers on 4 April 2014 but I granted it after renewal at an oral hearing on 4 July 2014. The substantive oral hearing of the appeal was heard by me on 3 December 2014. On 20 January 2015 I sent the parties a copy of the determination of 6 January 2015 in what I will call “the New X Case” (HS/1212/2014: X v Governing Body of a School (SEN) [2015] UKUT 0007 (AAC)), asking the parties to indicate whether they wished to make further submissions in writing. They agreed a sequence and time-frame which involved written submissions from Mrs C (2 February 2015) and the Respondent (10 February 2015).

4.	In essence, the Tribunal held that the claim must fail “because in relation to the exclusion [from school, K] was not disabled” (§28). That was because K’s “tendency to physical abuse of others” was an excluded condition such that: “Regulation 4 of the 2010 Regulations prevent[s] us from treating such abusing behaviour as an impairment, even if his tendency to respond in this way may have arisen out of another impairment” (§27). The Tribunal emphasised that K had been “excluded [from school] for his physical assault on a pupil and for his threat of physical assault of a teacher by throwing a chair towards him” (§21) and “excluded for a particular, serious incident of physical abuse” (§27). The Tribunal recognised that Mrs C had “clearly argued” that K “could have been better supported” as to which it said “there is evidence we would have considered had we looked at the proportionality of the exclusion”, continuing: “but we are unable to take those factors into account in making a finding as to what was the reason the Responsible Body took, and then confirmed, its decision to exclude [K] permanently” (§18). The Tribunal said that Mrs C’s “submission that [K] could have been better supported at [the school]” did not “undermine the overall conclusion that [K] … has a tendency to resort to physical abuse” (§26). In those circumstances, held the Tribunal, the claim had to be dismissed and the questions regarding the school’s adequacy of support for K did not need to be resolved.

5.	On this appeal, Mrs C’s central point arises as follows. She accepts that the Tribunal dealt with her claim insofar as it was based on the exclusion from school as having constituted unfavourable treatment. But she says her claim had a second ‘limb’. That is because she was also arguing that the exclusion from school was “unlawful on the grounds of disability discrimination” in another way, namely “in that the school failed to make reasonable adjustments for her son’s needs”. As I described it when granting permission to appeal in this case (being satisfied that the appeal was properly arguable), Mrs C was saying she had made a claim “that the exclusion decision was discriminatory (s.85(2)(e)) in the light of relevant non-compliance (s.21(1)-(2)) with the applicable (s.85(6)) duty to make reasonable adjustments”. This second ‘limb’ is argued by Mrs C to have been (a) open to her in law (b) advanced by her in substance and (c) erroneously (or unfairly) unaddressed by the Tribunal.

6.	Everyone agrees that Mrs C did not make a ‘freestanding’ claim challenging the acts by I School of allegedly failing to provide adequate support for K as being themselves acts of discrimination, independently of the question of lawfulness of the exclusion from school. Such a ‘freestanding’ claim about failure of reasonable adjustments would have been open to Mrs C but it was not advanced by her and did not need to be addressed by the Tribunal. The claim advanced by Mrs C challenged only the decision to exclude K from school, and no other decision or act. The sole question was whether, for any of the reasons put forward by Mrs C, that decision to exclude K from school constituted unlawful disability discrimination.

7.	What I have to decide in determining this appeal is whether, in her appeal to the Upper Tribunal, Mrs K has identified any material error of law in the Tribunal’s determination.

8.	In legal terms, this case raises questions about whether and how (a) the non-compliance by a school with its statutory duty to make reasonable adjustments in the educational service provision for a disabled pupil can mean (b) the school has breached the statutory prohibition on discrimination by excluding the pupil from the school. It raises questions about reasonable adjustments discrimination and unfavourable treatment discrimination, and it involves the legal consequences of there being not only a protected disability but also an excluded condition.

My Lexicon

9.	I will start by saying what I mean by the language and phrases I am using in this determination, including those I have underlined in the previous paragraph. In explaining what words and phrases mean, I will also map out where the legal concepts are to be found in the statutory landscape, some of which statutory provisions have been mentioned already. Before turning to the terminology, I will identify here how I will be naming three previous cases to which I will refer:

9.1	By the “X School Case” I mean Governing Body of X Endowed Primary School v Special Educational Needs and Disability Tribunal [2009] EWHC 1842 (Admin) [2009] IRLR 1007 (High Court, Lloyd Jones J, 23 July 2009).

9.2	By the “P Case” I mean P v Governing Body of A Primary School [2013] UKUT 154 (AAC) (Upper Tribunal, Judge David Williams 25 March 2013).

9.3	By the “New X Case” I mean HS/1212/2014 X v Governing Body of a School (SEN) [2015] UKUT 0007 (AAC) (Upper Tribunal, Judges Jacobs, Ward and Rowley, 6 January 2015).

10.	Turning to terminology, here are some key phrases which I will use in this determination and an explanation of what I mean when I use them:

10.1	By “a school” I mean “the responsible body of a school to which … section [85 of the Equality Act 2010] applies”. As to this, see section 85(1), (2) and (6) of the 2010 Act. The school in this case (I School) is such a school.

10.2	By “educational service provision” I mean (using my own shorthand) “provision of education or access to a benefit, facility or service”. See paragraph 2(4)(b) of Schedule 13 to the 2010 Act; and also section 85(2)(a) to (d).

10.3	By “statutory duty to make reasonable adjustments” I mean the duty applicable to a school by virtue of section 85(6), under which: “A duty to make reasonable adjustments applies to the responsible body of such a school”. Failure to comply with a relevant “requirement” is a failure to comply with that duty (see section 21(1)), and failure to comply with that duty in relation to a disabled person is discrimination (see section 21(2)). The statutory duty to make reasonable adjustments applies in the educational service provision for a disabled pupil, as well as in deciding who is offered admission as a pupil; but “It does not apply to a decision to exclude a pupil from the school” (see the New X Case at §33).

10.4	By the “statutory duty to make reasonable adjustments in the educational service provision for [a] disabled pupil” I mean the relevant “requirement” in section 20(3) when read with paragraph 2(2), (3)(a) and (b)(ii) and (4)(b) of Schedule 13 (as the applicable Schedule: section 20(1)). (For the purposed of this case I can put to one side paragraph 2(3)(b)(i) and (4)(a) which concern admission as a pupil.) The relevant combined effect of those provisions produces the following:

“… a requirement, where a provision, criterion or practice of the school’s (applied by or on behalf of the school) puts disabled pupils generally at a substantial disadvantage in relation to provision of education or access to a benefit, facility or service in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

10.5	By the “statutory prohibition on discrimination by excluding the pupil from the school” I mean the prohibition in section 85(2)(e) which provides: “The responsible body of … a school [to which this section applies] must not discriminate against a pupil … by excluding the pupil from the school”. It is worth seeing this in its overall setting. (I can put to one side section 85(1) which deals with admission as a pupil.) Section 85(2) provides that a school:

“… must not discriminate against a pupil –
(a) in the way it provides education for the pupil;
(b) in the way it affords the pupil access to a benefit, facility or service;
(c) by not providing education for the pupil;
(d) by not affording the pupil access to a benefit, facility or service;
(e) by excluding the pupil from the school;
(f) by subjecting the pupil to any other detriment.”

11.	I turn next to the meaning of “a disabled pupil”. In analysing that question I gratefully adopt two phrases which Lloyd Jones J used in the X School case (Governing Body of X Endowed Primary School v Special Educational Needs and Disability Tribunal [2009] EWHC 1842 (Admin) [2009] IRLR 1007). In that case, he spoke of “protected disability” and “excluded condition” (see, for example, §44). In this case, so will I.

11.1	A “protected disability” is a “disability” as described in section 6 of the 2010 Act, and a disabled person is a reference to a person with such a disability (section 6(2)). A person has a “disability” (section 6(1)) if they have a physical or mental “impairment” which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

11.2	An “excluded condition” is a condition of a prescribed description which regulations provide is to be treated as not amounting to an “impairment”: paragraph 1 of Schedule 1 to the 2010 Act. By regulation 4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 (SI 2010 No.2128) “a tendency to physical … abuse of other persons” is an excluded condition. It is worth seeing this in its overall setting. Regulation 4(1) describes each of the following as excluded conditions:

“(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons
(d) exhibitionism, and
(e) voyeurism.”

12.	Next, I address what is meant by “discrimination”. I have already referred to the “statutory prohibition on discrimination by excluding the pupil from the school” (section 85(2)(e)). That describes a situation (excluding a pupil from a school) in which “discrimination” is prohibited. But none of that tells us what “discrimination” is. For that, we have to look elsewhere in the 2010 Act. In the present case, two species of discrimination have been the subject of argument, and I will identify them here. (There are other species, but nobody says they are relevant in the present case, and I can put them to one side.)

12.1	First, there is “reasonable adjustments discrimination”. By this I mean discrimination against a disabled person (section 21(2)) by the school’s failure to comply (section 21(1)) with the school’s statutory duty (section 85(6)) to make reasonable adjustments in the educational service provision for a disabled pupil (section 20(3) read with Schedule 13).

12.2	Secondly, there is “unfavourable treatment discrimination”. By this I mean discrimination against a disabled person as described in section 15(1), involving two components: (a) relevant unfavourable treatment which cannot satisfy (b) a proportionality test. Section 15(1), as it applies to a school, provides as follows:

“A [school] discriminates against a disabled person (B) if –
(a) [the school] treats B unfavourably because of something arising in consequence of B’s disability; and
(b) [the school] cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Reasonable Adjustments and “Indirect Vitiation” of an Exclusion Decision

13.	In this case I have had the advantage of written and oral submissions by Tom Cross (with David Horan) on behalf of the Respondent and Aileen McColgan (with Rosie Bayley) – appearing pro bono in the best traditions of the legal profession – for Mrs C. They agree that a school’s non-compliance with its statutory duty to make reasonable adjustments in the educational service provision for a disabled pupil can mean that the school has breached the statutory prohibition on discrimination by excluding the pupil from the school. They agree too that failure to make reasonable adjustments can be relevant to the proportionality test (as the Tribunal said at §18), where the claim alleges unfavourable treatment discrimination.

14.	They also agree that the following illustration could arise and could be analysed in the following way. I discuss it, because it does not involve any excluded condition. Instead, it is a more straightforward example. It is an illustration involving the tendency to verbal abuse of others.

Verbal Abuse Illustration. A pupil attends a school. The pupil has a recognised underlying condition which manifests itself in various ways. They include that in certain situations the pupil will be seriously verbally abusive to others, including those in authority. There is no tendency to physical abuse of others, and no physically abusive conduct. The school has decided to exclude the pupil from the school because of incidents in which the pupil has verbally abused teachers in class. The parent of the pupil brings a claim to challenge the exclusion, relying on the fact that prior to the exclusion the school had failed to take reasonable steps to respond to the pupil’s condition. The parent says that if only the school had done its duty in making ‘reasonable adjustments’, the circumstances which have led to the exclusion could have been avoided. On that basis, says the parent, the exclusion is discriminatory and unlawful.

15.	Everyone agrees that in such a case there can be a viable claim to establish that the exclusion is unlawful disability discrimination, analysed in the following legally correct way. I will describe it as “indirect vitiation”.

15.1	The parent can rely on the statutory prohibition on discrimination by excluding the pupil from the school.

15.2	The parent can argue that the pupil has a protected disability because of the recognised underlying condition, and is therefore a disabled pupil. There is no excluded condition.

15.3	The parent can rely on unfavourable treatment discrimination. The relevant unfavourable treatment will be said to be the exclusion. The exclusion will be said to have been because of something arising in consequence of the disability, because the verbal abuse of teachers was a manifestation of the recognised underlying condition.

15.4	The parent can say that the relevant unfavourable treatment cannot satisfy a proportionality test, because of the nexus (or link) between the circumstances of the exclusion and the school’s prior non-compliance with its statutory duty to make reasonable adjustments in the educational service provision for the disabled pupil.

15.5	True, the school’s statutory duty to make reasonable adjustments applies only to its educational service provision, and not to the exclusion. But that does not undermine the parent’s ability to rely on it.

15.6	True, the parent will be pointing to a prior act of discrimination – the non-compliance with the school’s statutory duty to make reasonable adjustments in the educational service provision for the disabled pupil. True, that act of discrimination could be challenged in a free-standing claim to establish that it is itself an independent prior and unlawful act of discrimination. But that does not undermine the parent’s ability to rely on it as the basis for saying that the exclusion is itself unlawful discrimination.

16.	This analysis focuses squarely on section 15(1): unfavourable treatment discrimination. It allows for the conclusion that the school’s non-compliance with the duty to make reasonable adjustments in the educational service provision for a disabled pupil can “vitiate” (that is to say, ‘invalidate in law’) the decision to exclude the child from the school. As I have said, I will call this “indirect vitiation”. It is indirect because the non-compliance with the statutory duty to make reasonable adjustments can be relied on only through the application of the proportionality test. The proportionality test itself only arises if the parent has first established – as may be open depending on the facts of the case – that there has been relevant unfavourable treatment against a relevantly disabled person.

17.	I agree with the parties that this “indirect vitiation” analysis is legally correct. It is clearly the legal analysis which the Tribunal had in mind in the present case. It is also, in my judgment, the legal analysis which the Equality and Human Rights Commission’s Technical Guidance for Schools in England is describing in chapter 4 (Exclusions from School) at §4.11. That passage contains a helpful practical illustration and so I will set it out. It is an illustration which assumes that flapping arms at a teacher, although threatening behaviour, would not be characterised as physical abuse of another person so as to raise questions regarding an excluded condition. I will therefore add in the description of this as being a “Flapping Arms Illustration”. The passage reads as follows:

“If a disabled pupil is excluded for behaviour connected to his or her disability, this could be discrimination arising from disability unless the school can justify the exclusion as being a proportionate means of achieving a legitimate aim. An exclusion is unlikely to be justified in circumstances in which the school has not complied with its duty to make reasonable adjustments for that pupil.

Example:

[Flapping Arms Illustration]: A pupil with autism is excluded for flapping his arms at a supply teacher. The supply teacher was alarmed by what she perceived to be threatening behaviour. The reason why the pupil flapped his arms was that the supply teacher had told him that he could not sit in his normal seat, because it was not appropriate for the activity that they were doing. This upset the pupil and caused him to flap his arms in an agitated fashion. The pupil always sat in the same seat in the classroom and this was recognised as a reasonable adjustment for his autism by his class teacher. Since the pupil’s reaction of flapping his arms was connected to his disability, the exclusion would be discrimination arising from disability. Because the school had not advised the supply teacher of the reasonable adjustment, the school would be unlikely to be able to justify the discrimination and therefore it would be unlawful.”

“Indirect Vitiation” and Excluded Conditions

18.	I have said that indirect vitiation is more straightforward in the analysis which I have set out above than it is in the present case. That is because tendency to verbal abuse of other persons is not an excluded condition and the flapping of arms is understandably assumed not to engage the excluded condition of tendency to physical abuse of other persons. How does the indirect vitiation analysis work where an excluded condition is said to be in play?

19.	It is sensible to start with the Tribunal’s determination in the present case. The essence of its reasoning was as follows. The Tribunal addressed the question of ‘indirect vitiation’. It decided there could be no indirect vitiation because the proportionality test did not arise for consideration. The reason why that test did not arise was because this was an exclusion from school arising out of acts of physical abuse of other persons involving a tendency to physical abuse, which meant there was an excluded condition such that K was not a relevantly disabled person and there could be no relevant unfavourable treatment in deciding to exclude him.

20.	At the heart of its determination, the Tribunal set out the following 5-stage approach (§11):

1)	What was the Responsible Body’s reason for excluding [K] permanently?
2)	If it was, or predominantly was, for physical abuse, did K have a tendency to physical abuse of others?
3)	If yes, he must be found not to be [relevantly] disabled. If no, the following issues would have to be determined[:]
4)	If he was, was the unfavourable treatment – the permanent exclusion – because of something arising in consequence of that disability?
5)	If it was, can the [Responsible Body] show that the permanent exclusion was a proportionate response in pursuit of a legitimate aim? 

21.	Mr Cross submitted that, in its design, this ‘5-stage approach’ was a legally correct approach, consistent with the statutory scheme and the authorities, where a case such as the present is analysed on the basis of unfavourable treatment discrimination (section 15). Mr Cross accepted that inclusion of the word “relevantly”, which I have inserted at stage 3) of the 5 stages, might be sensible. In my judgment it is a sensible insertion. That is because a pupil being excluded for physical abuse may well, and obviously, have an underlying disability. That being so, it is better not to appear to deny that obvious fact. Whether the pupil is disabled is one thing. Whether the pupil is relevantly disabled reflects the fact that the concept of excluded conditions means there is a legally relevant qualification needing to be addressed. Mr Cross also submitted that, in its application, the Tribunal adopted a legally correct approach to the 5-stage approach, under which stages 4) and 5) did not arise in the present case. Finally, Mr Cross submitted that, until the hearing of this appeal, this had all been common ground between the parties.

22.	Ms McColgan for Mrs C has raised one objection as to design, and another objection as to application, of the 5-stage approach. I will consider these objections on their legal merits later in this determination. But, before doing so, I will try to illustrate how I understand the five-stage approach is said to work. For that purpose, I will take another illustration. It involves the tendency to steal.

Tendency to Steal Illustration. A pupil (P) attends a school. P has a recognised underlying condition which manifests itself in ways which include impulsive behaviour including that (a) in some situations P will be verbally abusive (b) in some situations P will take things knowing that they belong to other people. The school has decided to exclude P from the school in circumstances which include incidents in which P has taken mobile phones belonging to other pupils. The parent of P brings a claim to challenge the exclusion, relying on the fact that prior to the exclusion the school failed to take reasonable steps to respond to P’s condition. The parent says that, if only the school had done its duty in making ‘reasonable adjustments’, the circumstances which have led to the exclusion could have been avoided. On that basis, says the parent, the exclusion is discriminatory and unlawful. The school, in resisting the claim, relies on the tendency to steal as being an excluded condition.

23.	Applying the Tribunal’s 5-stage approach to that tendency to steal illustration, the analysis would as I see it be as follows. In setting it out, I am adding in my own ‘observations’ as to how I understand the 5-stage approach would work.

Observation: The first 3 stages of the 5-stage approach are concerned with the question whether the claim of discrimination (unfavourable treatment) is precluded by reason of there being an excluded condition. For the claim to be precluded, two questions need to be answered affirmatively. It may not matter what order they are asked in. If they are both answered ‘yes’, then – as stage 3) explains – the claim is precluded by reference to an excluded condition.

1)	What was the Responsible Body’s reason for excluding the pupil (P) permanently?

Observation: Here, the question is whether the excluded condition – assuming it exists (see stage 2) below) – precludes any unfavourable treatment discrimination claim being advanced at all. That is because the claim would need to rely on an aspect of disability which cannot be relied on: it is excluded. In short, to exclude someone from school, based on an aspect of their behaviour which cannot be said to be part of a relevant disability, cannot be discrimination against a disabled person. Put another way, exclusion from school could not be unfavourable treatment because of something arising in consequence of their disability. Here, the tribunal dealing with the claim would analyse why the school had taken the action of exclusion. This could have been (a) because of P’s thefts (b) because of P’s verbal abuse (c) for some reason having nothing to do with P’s recognised underlying condition or (d) a combination of reasons. It is said here that the ‘predominant reason’ will suffice: see stage 2) below.

2)	If it was, or predominantly was, for stealing, did P have a tendency to steal?

Observation: Here, the question is simply whether the excluded condition did exist, so that the claim is precluded for the reason in stage 1). There is a premise to that question: the tribunal hearing the claim will have decided that the ‘predominant’ reason for excluding P from school was for stealing the mobile phones. That is important because the relevant excluded condition is the tendency to steal; the tendency to verbal abuse is not an excluded condition.

3)	If yes, he must be found not to be [relevantly] disabled. 

Observation: Here, once the tribunal has decided that P has the relevant excluded condition (tendency to steal), and it has decided that his stealing was the (predominant) reason for the exclusion from school, then the logic is that there can be no relevant disability which could found a successful discrimination claim (based on unfavourable treatment). True, P may be a disabled person (because of the recognised underlying condition), but P does not have a disability which could be relied on to impugn the decision to exclude from school.

If no, the following issues would have to be determined[:]

Observation: Here the point is that, if the claim is not precluded by reference to the excluded condition, it can be considered in the usual way. That does not mean that the claim will get off the ground. For example, if the reason for the decision to exclude the pupil was for theft, and if the pupil in fact has no tendency to commit theft, the claim is not precluded but it will still fail at stage 4) below.

4)	If he was, was the unfavourable treatment – the permanent exclusion – because of something arising in consequence of that disability?

Observation: Here, the analysis is not identical to stage 1): the reason for the exclusion from school. The reason for the exclusion from school is not irrelevant to stage 4), but nor is it exhaustive of it. To illustrate that point: the reason for the exclusion from school may have been verbal abuse (stage 1) above). The tribunal would then consider whether verbal abuse is a relevant impairment, as where it is a manifestation of a recognised underlying condition. It would also be necessary to consider whether the relevant acts of verbal abuse were linked to disability (eg. occurring in circumstances known to trigger this manifestation of the condition) or unconnected (eg. occurring in other circumstances and independently of any condition or impairment).

5)	If it was, can the [Responsible Body] show that the permanent exclusion was a proportionate response in pursuit of a legitimate aim? 

Observation: Here, the analysis turns to the proportionality test. At this stage the question of reasonable adjustments in the educational service provision for a disabled pupil can be raised. The parent may submit that the exclusion from school is unjustified in the light of non-compliance with the statutory duty to make reasonable adjustments, where those adjustments and the failure to make them are said to be relevant to the ensuing circumstances leading to the exclusion from school. The school may seek to deny any relevant or causatively material default. Or it may positively assert that all reasonable steps were taken, as part of showing the overall proportionality of the exclusion.

The “Something Arising” Point

24.	As I have indicated, the design of this five-stage approach has only been criticised by Ms McColgan in one important respect. The essence of Ms McColgan’s argument, as I see it, is as follows:

24.1	Where “a tendency to physical … abuse of other persons” is an excluded condition by virtue of Regulation 4(1)(c), the consequence is only that the tendency does not amount to an “impairment” (see regulation 4(1)). That means the person with the tendency cannot point to it for the purposes of demonstrating a disability (section 6(1)(a)). In other words, the individual is disqualified from ‘constructing’ a tendency to physical abuse of others as being an “impairment” and so a “disability”. The same applies to the other excluded conditions. Put bluntly, what that means is that thieves, arsonists and sex offenders would not put forward their tendency to commit theft, arson or sex offences as being an “impairment” and so a “disability”. The policy reasons for this are obvious.

24.2	The X School Case is authority for the proposition that this disqualification applies, not only to a tendency which is ‘free-standing’, but also to one which is derived from or consequential upon a protected disability (see the X School Case at §48). That conclusion has now been upheld by the three-judge Upper Tribunal determination in the New X Case (at §101). Without challenging that proposition in this case at this level, its implications need to be understood and not overstated. All that it means is that the individual still cannot ‘construct’ the tendency, even where it is derivative or consequential, as being an “impairment” and so a “disability”. Again putting it bluntly, thieves, arsonists and sex offenders cannot put forward their propensity to commit these acts as being an “impairment” and so a “disability”, even where they can say that the tendency is borne out of another underlying condition which is a disability.

24.3	What all of that means is that the tendency described in the excluded condition is not an “impairment”, and so not a “disability”. But it is not nothing. It, and the conduct of acting in the way to which the tendency relates, are “something”. Under the statutory scheme, that matters, where the tendency is derived from or consequential upon a protected impairment. The statutory prohibition on unfavourable treatment discrimination (section 15(1)) applies where a person is treated unfavourably “because of something arising in consequence of [the person]’s disability”. Where the conduct is consequential upon or derived from a protected disability, the conduct (for example, physical abuse of others) is indeed that. It is “something arising in consequence of” a disability. That falls squarely within section 15(1) as a matter of plain language. In excluding a condition from being an “impairment”, the statutory scheme has not excluded that condition – nor the relevant conduct – from being “something arising in consequence of [a] disability”. Had that been intended, it would have been easy for the statutory language to say so.

24.4	The trap into which the five-stage approach falls – as is exposed from the commentary set out at §23 above which endeavours to makes sense of that approach – is that it treats the excluded condition as describing an aspect of the person’s behaviour which cannot be part of a relevant disability. That approach is legally incorrect. The correct question is different. The question is whether the behaviour described by the excluded condition is “something arising in consequence of [a] disability”. The answer is that it can be.

25.	I think this argument has its attractions, so far as the language of the statutory scheme is concerned. But I cannot accept it. In my judgment there are convincing answers to it. These operate on the premise – not challenged before me – that the X School Case (and now the New X Case) was correct to regard tendencies which are derived from and consequential upon a protected disability as caught by Regulation 4; and also that the excluded conditions apply to children under the age of 18 (as decided in the New X Case at §59). Since I am satisfied that Ms McColgan’s argument is incorrect in law, it is not necessary for me to deal with Mr Cross’s objection that this was an argument which was raised too late in the day and which should be left open. So far as that objection is concerned, I simply say that it is a question of principle, and a question of statutory interpretation. It troubled me and was raised with the parties by me. It was addressed at the oral hearing. There was no suggestion that Mr Cross was prejudiced or unable to respond. The answer to it, in my judgment, is as follows:

25.1	First, as a matter of interpretation, the statute deliberately speaks of disability always and only in terms of “impairment” (section 6(1)). It is the impairments which are the legally relevant elements of disability for the purpose of the 2010 Act. There may be more than one constituent element, and it is necessary always to focus on the relevant element or elements. A recognised condition (which in normal language would be a recognised “disability”) may involve more than one impairment. The idea of an excluded condition which is not to be regarded as a relevant “impairment” is, in my judgment, that the excluded condition is then ‘stripped out’ of any recognition of a person’s disability. So, for example, a disabled person with a tendency to set fires may – for the purposes of the 2010 Act – be regarded as a disabled person but not insofar as their tendency to set fires is concerned. To put it another way, an individual may be ‘relevantly disabled’ but not insofar as their tendency to steal is concerned. The language of “something arising in consequence of B’s disability” in section 15(1) cannot therefore apply to setting fires or stealing where the tendency to do is consequential upon or derived from a protected disability. That is because the protected disability must necessarily have been redefined to exclude that very tendency. The person who says ‘I set fires because of a disabling condition’ faces the answer: ‘yes but your legally relevant disabling condition can only be your condition insofar as it excludes that element’.

25.2	Secondly, I consider this approach to have been endorsed by the High Court in the X School Case, from which I see no proper or justified reason to depart. In that case, a question arose as to whether the school had properly been found to have breached its statutory duty to make reasonable adjustments in the educational service provision for a pupil with ADHD (§69). The case involved predecessor legislation but neither party to this appeal has argued that there was any material difference nor pointed to one. In upholding the determination of the tribunal (§72), Lloyd Jones J took the following approach to the question whether there was a relevant disability to trigger the statutory duty to make reasonable adjustments (§71):

“While the measures described in the decision [of the tribunal] … appear to include means of controlling a tendency to physical abuse, I do not understand them to be limited to such matters. On the contrary, they appear to include measures for the management of pupils with ADHD generally, including calming and de-escalation strategies. Such strategies may be directed at non-compliance and disruptive behaviour falling short of a tendency to physical abuse … I consider that there was here a failure to make reasonable adjustments in respect of a protected disability.”

In my judgment, that passage illustrates the ‘stripped out’ approach to disability and impairment, under which it is necessary to focus on relevant disability in terms of impairment or impairments but not insofar as the excluded tendency is concerned. This ‘stripped out’ approach to disability and impairment logically arises wherever there is an issue of disability and discrimination. For that reason, it is no answer to say that the X School Case was not in those passages concerned with the consequences for exclusion from school.

25.3	Thirdly, as a matter of purpose and policy, once it is accepted that the statutory scheme intended to exclude conditions which were relevant tendencies derived from and consequential upon a protected disability, it is difficult to see how it could coherently have been intended to allow those same tendencies to be the trigger for disability discrimination under section 15, as a legally relevant “something arising in consequence …”

The “Reasons” Point

26.	So much for the design of the Tribunal’s 5-stage approach to ‘indirect vitiation’. As I have said above, Ms McColgan also raised a point going to application of the Tribunal’s 5-stage approach. In essence, her argument is as follows:

26.1	The Tribunal in this case asked itself the stage 1) question: what was the responsible body’s reason for excluding K permanently from school. It decided that it was predominantly for physical abuse. In answering that question, the Tribunal focused (§12) on the decision of the Principal embodied in the reasoned decision letter dated 10 May 2013, and the decision of the Governors’ panel upholding that decision with their own reasoned decision letter dated 6 June 2013.

26.2	In the P Case (P v Governing Body of A Primary School [2013] UKUT 154 (AAC)) Upper Tribunal Judge David Williams held (at §65) that the First-tier Tribunal in that case had not dealt adequately with the “identification of the reasons why Y [the pupil] was permanently excluded” (§58). That was because three reasons had been given by the Governing Body’s committee (the Behaviour and Discipline Committee) for upholding the decision (§§15, 62), including that “The school has put in place all recommended strategies to include and support Y”. That same point had been included in the Headteacher’s reasons (§11). Judge Williams held that the tribunal in that case had “not considered” the reasons given by the Headteacher and Governors and did not “make a clear finding on the reasons actually given” (§65).

26.3	This determination suffers from the same vice. By a reasoned decision letter dated 11 September 2013, the I School Governors gave their reasons for their reconsidered decision permanently to exclude K. The reconsideration had arisen from recommendations made by an Independent Review Panel. The 11 September 2013 letter made various points about the steps which I School had taken, concluding: “Following careful consideration of all the evidence provided, governors noted that they didn’t feel the [I school] could have done anymore to help or support [K] and that they had explored all strategies available …” The Tribunal should have grappled with those reasons. Just as in the P Case, the failure to do so was a material error of law which vitiates its decision.

27.	I cannot accept this argument. My reasoning is as follows:

27.1	In my judgment the Tribunal in the present case dealt properly and conscientiously with the question of what was the reason for excluding K permanently. It made a clear finding, that K “was excluded for his physical assault on a pupil and for his threat of physical assault of a teacher by throwing a chair towards him” (§21). It gave adequate and intelligible reasons. In doing so, the Tribunal properly referred to the Principal’s decision letter and the Governors’ original decision letter for upholding the decision to exclude K. The Tribunal did not focus on the letter of 11 September 2013 but there is nothing to suggest that anyone was relying on that letter as illuminating the question: what was the reason for excluding K permanently? The Tribunal looked at the facts and the sequence of events. It heard oral evidence from the Principal and the chair of the Governors (§12). It identified, on the evidence it had heard and considered, K’s “abusive behaviour” as “the main, and … sufficient, reason for the exclusion” (§16). I can find no legal flaw or inadequacy in the Tribunal’s approach, conclusion or reasoning. That disposes of this point.

27.2	I do not read Judge David Williams in the P Case as holding that, wherever a school or governors’ decision letter in a case of exclusion from school has referred to the adequacy of arrangements which had been made for a pupil, then that must have been an operative part of the reason for the exclusion from school, for the purpose of asking why the child was excluded from school. I think Judge Williams was holding that the tribunal in that case had not grappled with the question of reasons and had not made a clear finding. He did not say the answer to that question was inevitably one way or the other. Rather, he considered that the question had not properly been addressed. In the present case, in my judgment, the question has been properly addressed. The September 2013 letter in the present case, describing reconsideration and responding to recommendations of the Independent Review Panel, does not undermine the Tribunal’s finding of fact on the documents and oral evidence. Nor could it do so. That is especially so when it was evidently not relied on for this purpose by anyone at the hearing before the Tribunal nor in the grounds of appeal to the Tribunal.

27.3	There are pitfalls, in my judgment, in seizing on any reference, in any decision letter, to the adequacy of arrangements made for the pupil, and concluding that such a reference prevents reliance on an excluded condition so far as the reason for the exclusion from school is concerned. Such references in a decision letter could be part of a comprehensive discussion of the circumstances of the case. They could, in particular, be directed at a distinct question: the proportionality of exclusion. It cannot be improper for a school to choose to consider questions regarding the justification and proportionality of permanent exclusion from school, even where the case involves an excluded condition, whether or not proportionality would need to be assessed by a tribunal were a discrimination claim made. If, in the case of tendency to verbal abuse or threatening flapping of arms (illustrations which I have considered above), a decision letter referred to reasonable adjustments having been taken, that could go to the proportionality of the exclusion from school, and would not necessarily undermine a conclusion that the reason for the exclusion from the school was the verbal abuse or threatening flapping of arms. Moreover, the closeness of the link between the exclusion decision and the prior adequacy of reasonable arrangements is precisely what makes the question of reasonable adjustments relevant to the proportionality of the exclusion. In my judgment, it would be odd and unsatisfactory if, in a case potentially involving an excluded condition, the virtue of the decision letter addressing points capable of going to justification and proportionality became the vice of undermining the school’s ability to rely on the excluded condition as the operative reason for exclusion. In my judgment, the Governors’ consideration of the adequacy of arrangements in the letter of 11 September 2013 did not of itself fatally undermine the school’s ability to ask the Tribunal to find that the reason for exclusion was the physical abuse.

27.4	Judge Williams in the P Case (at §72) identified two errors of law: (a) failure “properly to identify the reasons why Y was permanently excluded and not readmitted”; and (b) failure “to consider whether the Governing Body was right to take the view that there were reasonable adjustments in place with a view to stopping the exclusion from happening”. The second of these (b) referred to a discussion at §71, a passage which can also be seen as relevant to point (a), since it describes the adequacy of arrangements as having been “one of the reasons for the exclusion … made directly relevant to the decision to exclude and not readmit by the terms of the decision of the Governing Body itself”. As I read it, the self-standing relevance of (b) is this. Had the tribunal in that case properly identified exclusion from school as not being based on conduct manifesting the excluded condition (or were it to do so on remittal), the question of reasonable adjustments would then have been (or be) relevant to the proportionality test which would need to have been (and be) approached in a legally adequate way.

The “Direct Vitiation” Point

28.	For the reasons which I have given, I conclude that the Tribunal lawfully determined the claim in the present case, so far as the analysis based on unfavourable treatment discrimination is concerned. The Tribunal lawfully concluded that any non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for K could not vitiate (that is, ‘indirectly vitiate’ – through the proportionality test) the exclusion in this case. That leaves the question whether there was another route (the suggested second ‘limb’) which was open to Mrs C (a) in law and (b) in the circumstances of this case. I will call this second route “direct vitiation”.

29.	Mrs C’s argument based on “direct vitiation” runs in essence – as it seems to me – as follows:

29.1	‘Direct vitiation’ is supported by authority. It is clear from the X School Case that the tribunal there had determined that the exclusion from school of the pupil with ADHD in that case (described as JT) – albeit because of an incident of physical assault of a member of staff engaging the excluded condition (tendency to physical abuse of others) – was unlawful discrimination because of a failure to make reasonable adjustments. It is clear that this was not a ‘freestanding’ claim about acts of alleged failure to make reasonable adjustments. Rather, it was squarely a claim about exclusion from school. The legal conclusion was that exclusion from school was unlawful discrimination. The legal premise for that conclusion was that there had been a prior failure to make reasonable adjustments. The school in that case challenged the legal premise (§§5, 69), but it failed (§71). The appeal was dismissed (§72). Given that the reason for exclusion from school plainly engaged the excluded condition (§68), this cannot have been a case of ‘indirect vitiation’ (unfavourable treatment discrimination). The exclusion must therefore have been vitiated by a different route. Nobody suggests that the statutory scheme was materially different from the present (as to which see too the P Case at §§47, 49, 51). There is no reason to depart from the approach of the tribunal in the X School Case, upheld by the High Court on appeal.

29.2	In the X School Case Lloyd Jones J said this (at §4, emphasis added):

“… it was established that the Governing Body, in breach of its [statutory] duties … had failed to make a reasonable adjustment by enlisting the advice and support of the Access to Learning Specialist Team prior to the incident [of physical abuse]. The Tribunal accordingly concluded that the Governing Body unlawfully discriminated against JT in excluding him … It ordered the Governing Body, inter alia, to apologise to Mr and Mrs T in respect of the single act of unlawful discrimination which it found established …”

As the three-Judge Tribunal puts it in the New X Case at §65 (emphasis added):

“The tribunal [in the X School Case] decided that the governing body had failed to make a reasonable adjustment by failing to enlist the advice and support of a specialist team to implement measures for the management of pupils with ADHD, and so it had unlawfully discriminated against [JT] in excluding him from the school …”

As Judge Wright correctly observed in refusing permission to appeal (on other grounds) in the present case: in the X School Case “it was because the tribunal in that case had found that the school had failed to make reasonable adjustments that it concluded that the child had been unlawfully discriminated against by being excluded from the school”; so that the “foundation” (ie. the legal premise) of that conclusion as to exclusion was that finding as to the failure to take reasonable steps. Insofar as the ICLR headnote omits to mention the finding on exclusion from school, that is a misappreciation of what the tribunal’s funding had been, and may be why Judge Williams in the P Case (at §50) incorrectly records the tribunal in the X School Case as having “refused the claim of the parents about the permanent exclusion”.

29.3	The approach of the tribunal in the X School Case, upheld by Lloyd Jones J on appeal in that case, is correct in law. The reason why that is so is, and must be, as follows.

(1)	It is true that the statutory prohibition on discrimination by excluding the pupil from the school (s.85(2)(e)) requires discrimination in one of the senses described elsewhere in the 2010 Act. It is also true that, by virtue of the design of Schedule 13 to the 2010 Act, the statutory duty to make reasonable adjustments (s.85(6)) extends only to educational service provision for the disabled pupil (s.20(3) read with Schedule 13) and not to exclusion from school. In fact, even if the statutory duty to make reasonable adjustments extended to exclusion from school, that would mean only that reasonable adjustments fell to be made in the act and process relating to exclusion (cf. the EHRC Technical Guidance for Schools §4.12). It is also true that acts relating to educational service provision are distinct from the act of exclusion from school (cf. s.85(2)). All of this is true. However, none of it is fatal.

(2)	The key point is that non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for a disabled pupil can be so intimately and causally linked to the act of exclusion from school as to vitiate that act in law. That makes sense. It links to what Judge David Williams said in the P Case (§71): that compliance or non-compliance with the reasonable adjustments duty “interacts” with exclusion from school and can be “directly relevant” to exclusion from school. It also recognises that one unlawful act of a public authority can infect another act of the public authority.

30.	I granted permission to appeal in this case because I was satisfied that this “direct vitiation” point was properly arguable. I still think it is properly arguable. But with the benefit of written and oral argument on this substantive appeal, I cannot accept that it is the correct approach to the interpretation and application of the statutory scheme. Nor, on careful analysis, can I accept that it is in fact an approach to be regarded as supported by the judgment of Lloyd Jones J in the X School Case. In my judgment, the legally correct position is that this ‘direct vitiation’ route is not available in law. That means the Tribunal’s determination in the present case cannot be impugned by reference to its failure to adopt this route. I will explain why.

31.	It is appropriate, in my judgment, to start by considering the statutory scheme, free from authority. The difficulty is that the statutory prohibition on discrimination by excluding the pupil from the school focuses clearly on the act of excluding a pupil as the act which must be discriminatory (s.85(2)(e)). The acts of educational service provision: acts of providing education (s.85(2)(a)) or not doing so (s.85(2)(c)), and the acts of affording access to a benefit, facility or service (s.85(2)(b)) or not doing so (s.85(2)(d)), are legally relevant and legally distinct acts. There is therefore a ‘gap’ to fill (or a ‘step’ to take) from the legal premise that one of those distinct acts is discriminatory, to the legal conclusion that the act of exclusion from school is itself discriminatory.

31.1	I would accept that, as a matter of practical reality, acts and omissions relating to inadequate educational service provision can undermine the basis of – and legitimacy for – an act of exclusion from school. To take an illustration from a different context, consider this. It would be surprising if an authority or employer who denied wheelchair users physical access to a building by failing to make an obvious reasonable adjustment, and who then made a decision to dismiss or exclude them on grounds of their absenteeism, were not performing a discriminatory act of dismissal or exclusion. However, Mr Cross is entitled to say that a statutory remedy for unfavourable treatment discrimination can serve to address such cases under the ‘indirect vitiation’ route, with non-compliance with the statutory duty to make reasonable adjustments informing the conclusion under the proportionality test.

31.2	I would accept that, as a matter of public law, one unlawful act of an authority can in law infect (and ‘vitiate’) a later act of that (or indeed of another) public authority. No doubt the idea of an ‘intimate and causal link’ between the two can feature in such situations. For example, if the decision to allocate immigration applicants to the ‘detained fast-track’ were discriminatory, it would be surprising if the consequential act of detaining them were not itself also discriminatory. But context is everything and in that example the allocational decision could constitute the authority to detain. Here, the actions as to educational service provision are in no sense the authority to exclude from school. Here, the issue arises under a specific statutory scheme which involves a precise delineation of distinct acts.

31.3	I would accept that the Schedule 13 point – that the statutory duty to make reasonable adjustments applies in relation to educational service provision but not in relation to exclusion from school – is not a complete answer. Whether there is a duty to make reasonable adjustments in relation to excluding a pupil from a school is not the question here. Even if there were such a duty, that would not provide the answer here. The question here is whether non-compliance with the duty to make reasonable adjustments in relation to educational service provision can render the act of excluding the pupil from the school discriminatory. Having said that, Mr Cross is entitled to say that what this shows is simply that the statutory scheme as enacted is two steps away, not just one step away, from what Ms McColgan needs. She needs (a) the reasonable adjustments duty to apply in relation to a decision to exclude from school (b) such that the decision to exclude from school is to be regarded as discriminatory where there has been non-compliance with the reasonable adjustments duty in relation to prior and distinct acts of educational service provision. Neither (a) nor (b) is made out.

31.4	To say that a school discriminates “by excluding the pupil” (s.85(2)(e)) where it “fails to comply with [the] duty [to make reasonable adjustments]” … “in relation to provision of education or access to a benefit, facility or service” may not be logically or linguistically impossible. But it is, in my judgment, an unnatural and strained interpretation of the relevant statutory provisions. Nor can I accept that it is objectively discernable as the purpose and intent of the legislation from the words used. Perhaps if there were demonstrably strong policy reasons for adopting it, it could be a permissible purposive interpretation, but no such reasons have been identified. In fact, having analysed the position regarding unfavourable treatment discrimination and excluded conditions, there seem to me to be policy reasons pointing the other way.

(1)	One such reason is that this approach could ‘bypass’ the proportionality test under which reasonable adjustments are sensibly addressed in cases of exclusion from school.

(2)	Another reason is that this approach could ‘bypass’ the effect of excluded conditions, because exclusions from school would readily become impeachable albeit based on action intended to fall within excluded conditions.

(3)	A third reason is that it would be necessary, in framing and applying the ‘intimately and closely connected’ approach, to say when the non-compliance with the reasonable adjustments duty in relation to prior educational service provision would ‘directly vitiate’ the decision to exclude from school.

32.	So much for the position, free from authority. I return to the X School Case:

32.1	I accept Ms McColgan’s submission that the tribunal in that case had concluded that non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for the disabled pupil did have the consequence that the exclusion was discriminatory (see §§4, 6(6) and (9)). (The statutory scheme in the X School Case (see §§15-21) has not been said to have involved a material difference and I do not therefore analyse it separately here.)

32.2	Having said that, it does still appear, however, that the tribunal in the X School Case were considering the exclusion from school as unfavourable treatment discrimination (see §6(4)), to which it did not consider that the excluded condition (tendency to physical abuse) was a complete answer (§6(3)). The tribunal then turned to the reasonable adjustments duty in the educational service provision for the disabled pupil, but in the context of proportionality and justification finding non-compliance (§6(6)-(7)), such that the exclusion was discriminatory (§6(9)). In those circumstances, Mr Cross is able to say that that was a conventional unfavourable treatment discrimination analysis (what I have called ‘indirect vitiation’). Even if upheld by Lloyd Jones J, the tribunal’s approach is no basis for finding that there is an alternative legal route (what I have called ‘direct vitiation’), not articulated by the tribunal or by Lloyd Jones J.

32.3	When the matter came before Lloyd Jones J, the focus was on the tribunal’s finding as to non-compliance with the reasonable adjustments duty in the educational service provision for the pupil (see §5) as being the “sole ground of appeal”. It is difficult to understand why it was not considered appropriate for the analysis to extend to the finding that the exclusion from school was discriminatory. It seems possible that the school wished to focus on reasonable adjustments because the pupil had returned to the school after the exclusion decision and the question of reasonable adjustments had an ongoing and ‘freestanding’ practical relevance. Perhaps it was considered that there were ‘dual’ findings, being both (a) a ‘freestanding’ finding of discrimination through non-compliance with the reasonable adjustments duty in acts of educational service provision for the disabled pupil and (b) a parasitic finding of discrimination through exclusion from school which was disproportionate. Possibly the “single act of unlawful discrimination … found established” was the same non-compliance which in fact underpinned these dual findings. Or possibly the default of reasonable adjustments in the educational service provision for the disabled pupil was only ever the legal premise for the finding that there was a discriminatory act of exclusion from school, but the school was permitted to appeal that legal premise as though it were a freestanding finding. I have not found it easy to say. But nor do I think it is necessary to decide.

32.4	What in my judgment Mr Cross is entitled to say about the X School Case is that Lloyd Jones J, in dismissing the appeal in that case, was not endorsing the tribunal’s finding that the exclusion had been discriminatory. Still less was he identifying an alternative route – beyond unfavourable treatment discrimination – by which the exclusion could be treated as vitiated by non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for the disabled pupil. Rather, what the Judge was there doing was focusing purely on the question of whether there had, or had not, been non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for the disabled pupil. In particular, he was addressing the scope and operation of the statutory provision governing excluded conditions (especially the tendency to physical abuse).

32.5	In his conclusion (at §72 of the X School Case) Lloyd Jones J said this: “I consider that the Tribunal was correct in its conclusion that there had been unlawful discrimination arising from the failure to take reasonable steps to ensure that JT was not placed at a substantial disadvantage by comparison with pupils who are not disabled”. Mr Cross submits that the Judge was only dealing with a ‘freestanding’ non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for the pupil. In my judgment, that explanation does introduce an oddity. The Judge had just held that “there was here a failure to make a reasonable adjustment in respect of a protected disability” (§71), which would itself be an act of discrimination under the statutory scheme (see §16). It would be reasonable adjustments discrimination. So why was the Judge now speaking (at §72) of unfavourable treatment discrimination (“placed at a substantial disadvantage”), if he was simply referring to the breach of the statutory duty to make reasonable adjustments in the educational service provision? The Judge’s language does appear apt to refer to the exclusion from school (see §6(4)). On the other hand, the oddity may not help either party in this case. If at §72 the Judge was describing (as “unlawful discrimination arising”) the act of exclusion from school, it still would not support Ms McColgan’s ‘direct vitiation’ analysis, precisely because the Judge’s conclusion is framed in the language of unfavourable treatment discrimination (ie. ‘indirect vitiation’).

32.6	In the end, I have been persuaded by Mr Cross that Lloyd Jones J in fact decided no more than that the tribunal’s finding was sound as to non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for the pupil. That “conclusion” was the “conclusion which is specifically challenged in this appeal” (§69), and the excluded condition did not undermine it because the reasonable adjustments related to a protected disability even if the relevant tendency (to physical abuse of others) was ‘stripped out’ (§71).

32.7	I am struck by what the Judge said at the end of §68, applying a causation test to be found in §30 and endorsed at §33 (as well as in the P Case at §52). Lloyd Jones J referred (at §68) to “the conclusion that the reason for the exclusion was JT’s conduct in assaulting the teacher … this was not a reason relating to his protected disability but one relating solely to the excluded condition”. As it seems to me, one can pause there and ask what – on the logic of the judgment in the X School Case as a whole – the observations at §68 would mean for the lawfulness of the exclusion from school, if that had been in issue. In my judgment, the Judge’s reasoning would necessarily have supported the conclusion that the exclusion from school was not a discriminatory act. I cannot read §72 as endorsing an alternative route to a different conclusion, unidentified in a judgment in which the focus was not on the exclusion from school.

The “No Claim” Point

33.	For the reasons which I have given, there is no ‘direct vitiation’ route (or ‘limb’) which was open to Mrs C in law and the Tribunal cannot have erred in law in failing to address it. Mr Cross had a further answer to the point. It was that, even had there been an alternative route at law (‘direct vitiation’), it was nevertheless not a claim which Mrs C is to be taken as having been making in this case. In the light of my analysis, that objection does not arise. Had it done, I would not have accepted it. In my judgment:

33.1	Mrs C had made very clear that the essence of what she wanted to contend was that (a) the exclusion from the school was discriminatory (b) given the failure to make suitable arrangements. Nothing in her claim form in my judgment put that claim in one of two permissible ways, if there were two, so that she was disavowing any reliance on the other. Mrs C is not a lawyer and her claim was not framed in the sort of terms which I have used in this determination. The substance of the claim was clear and she was entitled in my judgment to a finding on that substance, applying the statutory scheme correctly, by whatever legally permissible route was open to her.

33.2	What Mrs C could not do, on her case as framed, was to seek to establish a ‘freestanding’ claim in which the tribunal would rule that there had been non-compliance with the statutory duty to make reasonable adjustments in the educational service provision for K. But she was not seeking that and has never sought that.

33.3	Directions given by the Tribunal prior to the hearing, and the framing of the issues at the hearing itself, were borne out of the Tribunal’s analysis of the statutory scheme. The directions in my judgment did not preclude legally viable argument by Mrs C reflecting the substance of her claim. It is to be noted that the reliance by I School on the excluded condition did not fall within the description in the directions, but the school was properly allowed to take the point and the Tribunal at the hearing rightly recognised (§9) that it was a relevant point of law.

33.4	The Tribunal held that the substance of the claim could only be put as unfavourable treatment discrimination, and framed the issues in that way. It properly raised the position with Mrs C at the hearing and that is how the hearing progressed (§§10-11). She doubtless went along with what the Tribunal had told he was the only viable legal route for her substantive claim challenging the exclusion.

33.5	The Tribunal’s approach was borne out of its appreciation of the statutory scheme and authorities. For the reasons I have given, that approach and appreciation were legally correct. No further issue was identified, and no further issue arose in law. That is Mr Cross’s complete answer. But had there been an alternative viable legal route, then I would not have considered that Mrs C – an assisted litigant in person at the hearing – would have been precluded from raising it on appeal. In those circumstances, the Tribunal’s approach would have involved an error of law and in the circumstances of this case Mrs C would have been entitled on appeal to ventilate that question.

The “No Tendency” Point

34.	That disposes of the central point in this case, and all of the points which were argued by the parties in writing prior to the oral hearing before me, and orally at that hearing. As I explained at the beginning of this determination, the Upper Tribunal’s determination in the New X Case was handed down after the oral hearing of this appeal. When I granted permission to appeal in the present case, I drew the pending New X Case to the attention of the parties. When it was handed down, I gave the parties the opportunity to say whether they wished to make written submissions as to what impact the New X Case had for the arguments on this appeal.

35.	In the written submissions lodged by Ms McColgan for Mrs C (dated 2 February 2015), no submission was made to the effect that any passage in the Upper Tribunal’s determination in the New X Case materially assisted her arguments on any of the points which I have dealt with above. Unsurprisingly, Mr Cross submitted that the New X Case provided no support for those submissions. I have analysed the various points already, and I have included some references to the New X Case. I do not propose to say more about any of that.

36.	In the light of the Upper Tribunal’s determination in the New X Case, the essential submission now made by Ms McColgan in writing on 2 February 2015 was to the effect that there was a further error of law which the Tribunal had made in the present case. The argument was, in essence, as follows:

36.1	In the New X Case the Upper Tribunal has now given authoritative judicial guidance as to the legally correct approach to the phrase “tendency to physical abuse” as an excluded condition. In particular, the Upper Tribunal has held that in approaching that phrase: (a) “physical abuse” requires “violence” and the “greater the level of violence, the more readily it will fall within the meaning of physical abuse” (New X Case §116); (b) “if the conduct complained of constituted something of a spasmodic reflect … it would not meet the terms of the definition” (§117); (c) in the absence of “some sort of misuse of power or coercion … a finding of physical abuse … would be likely to require careful justification” (§118); (d) “the stage of a child’s development is a factor which will fall to be considered” (§119); (e) “it is not necessary for a tendency to physical abuse to be manifested frequently or regularly” and “in some circumstances such a tendency may be revealed in a one-off incident, so long as there is evidence of a tendency to physical abuse”, the question there being whether “the incident is indicative of a tendency to abuse” (§120).

36.2	In the New X Case the Upper Tribunal was satisfied on the facts in determining the case itself, the First-tier Tribunal having erred in law in failing to approach the matter in the manner indicated. What sufficed for “a tendency to physical abuse” was “the significant element of violent conduct” which “constituted attacks, frequently sustained over a seven month period, on members of staff and/or other children” involving “the repeated use of relatively serious violence against other people on a number of occasions” (§128; also §9).

36.3	In the present case, there is a “pattern of behaviour” which “fell far short of what was required by the Upper Tribunal in [the New X Case]”, with “incidents … of an entirely different magnitude”. The Respondent had acknowledged that, “until the very serious episode of violence for which [K] was excluded”, the prior incidents “were not regarded by the School as being particularly serious” and the Tribunal itself (§22) had said that the “previous history did not involve serious violence towards others”. It was not “repeated use of relatively serious violence” as in the New X Case, but was “relatively trivial misbehaviour” which could not provide the “careful justification” needed.

37.	I do not accept that these submissions provide a proper basis on which this appeal can succeed. I accept the two key points made in response to them by Mr Cross in his written submissions (10 February 2015).

38.	First, it is one thing for Mrs C to address the question of how the New X Case bears on the grounds of appeal which she had advanced at the oral hearing; it is quite another to raise a wholly new argument based on the facts and evidence in the case, never previously advanced or foreshadowed. I accept Mr Cross’s characterisation, that this is a late attempt to change the grounds of the appeal. Even now, no permission is sought to amend the grounds, and I would not grant such permission at this stage and in these circumstances. It has always been clear that the Tribunal’s decision in the present case relied on a finding that K had the “tendency to physical abuse of others”. Mrs C could have challenged that conclusion but has not done so and instead mounted a different attack. In my judgment, it is not necessary or appropriate to allow so radical and belated a change of direction. For those reasons, I would decline in the exercise of my judgment and discretion to allow Mrs C to advance this wholly new point.

39.	Secondly, and in any event, I do not accept the submissions which are made as to their substance. The precise facts of the New X Case constitute circumstances which were considered by the Upper Tribunal – in re-making the decision in that case – as having been sufficient. It is quite wrong in my judgment to treat those facts as delineating what conduct is necessary. Focusing on the “guidance” given by the Upper Tribunal in the New X Case, I do not accept that there can be said to have been a material error of law by the Tribunal in finding that the catalogue of incidents of violent behaviour towards others, culminating in the ultimate incident which as Ms McColgan accepts was characterised by the Respondent as “the very serious episode of violence for which he was excluded”, was properly to be regarded as evidencing the required “tendency to physical abuse of others”. As Mr Cross points out, and as the Tribunal recorded (§24), the context was of a behaviour log which recorded a long sequence of reported incidents over a seven month period, including: “kicked water on a girl and pushed her”; “tripped a boy up on purpose”; “threw a coke can at two girls”; “threw a pencil at a girl’s face”; “threw a coin at another pupil”; “pushed a girl”; “kicked a girl”; “punching a boy ‘in the privates’”; “kicked a child hard in the back of the leg”; “was involved in getting pupils in headlocks and jumping on their backs”; and “pushed a child into a wall”. In my judgment, the observations of the Upper Tribunal in the New X Case do not undermine the approach or conclusion of the Tribunal in the present case (at §§25, 27) that there was the requisite tendency. I cannot accept Ms McColgan’s submission that the Tribunal “could not properly find … sufficient to demonstrate a tendency to physical abuse in light of the need for ‘careful justification’ of such a finding”.

Conclusion

40.	For the reasons which I have given, the appeal is dismissed.

MJ Fordham QC
Judge of the Upper Tribunal
4 March 2015