Teasing out claims in the SEND Tribunal: M v Proprietor of an Academy

Those accustomed to representing parties in claims before the First-Tier Tribunal (Health Education and Social Care) (Special Educational Needs and Disability) will be familiar with the sometimes painstaking exercise of pouring over the claim of an unrepresented party to discover the precise nature of the claims being brought.

This recent decision by the Upper Tribunal Administrative Appeals Chamber, setting aside the Tribunal’s decision striking out the claim for disability discrimination, highlights the risks of failing to tease out all claims before seeking to strike out, and serves as a reminder of the difficulties in striking out discrimination claims.

The facts

The appellant, a former pupil of the respondent school, had ADHD. For the academic year preceding the taking of his GCSE examinations in summer 2024 he had an attendance record at the school of below 6%. In the following autumn his parent lodged a claim with the Tribunal alleging disability discrimination. Part of that claim was that the school had failed to make a number of reasonable adjustments in its provision of education to prevent him being substantially disadvantaged. One complaint was that no adjustments had been made for examinations. In accordance with the Tribunal’s usual procedure, the claim form was reviewed by a judge for the purposes of determining what claims were being brought and for seeking further clarification from the claimant. That judge made directions which indeed identified one of the claims as concerning exam adjustments.

A number of the claims were in due course struck out for being out of time, and the Tribunal sought further specifics from the appellant as to the nature of the claims for failure to make reasonable adjustments. The appellant’s response reiterated their assertion that the school could have provided extra time for exams, but did not identify which exams they were and gave no further information.

The school subsequently invited the Tribunal to strike out the remaining claims, noting that the pupil had attended only 8.5 days that academic year, and that three of those were during GCSE examinations in May and June 2024. That being the case, the school submitted that it had simply not been in a realistic position to provide the adjustments sought if the pupil was not attending school to derive the benefit, and that in such circumstances it was not clear whether such adjustments could really have alleviated any disadvantage allegedly suffered. Whilst the school detailed the actions taken to make provision for the appellant, it said nothing in respect of arrangements for his GCSE examinations.

The Tribunal went on to describe the reasonable adjustments claims compendiously as relating to the school’s “practice of delivery education” and was persuaded by the argument that any steps the school might have taken would have been “redundant for 94% of the academic year”. The Tribunal therefore struck out the claim for having no reasonable prospect of success.

The appeal

The Upper Tribunal came to consider the basis of the strike out decision and found an error of law in that the Judge had incorrectly characterised the reasonable adjustments claim as concerning only the provision of education and failed to focus on the claim concerning exam adjustments. The Tribunal’s reasoning based on the pupil’s poor attendance at school could not be applied to the complaint about examination adjustments (and it might be said that, given the absence of schooling in the year prior to the GCSE examinations, the provision of extra time for those might have been the only adjustment which would have been of benefit to the appellant). The Upper Tribunal concluded that the particular claim for exam adjustments had been advanced in the claim form and that it was the Tribunal’s duty therefore to determine it, observing that, “It cannot be ignored or clarified out of existence.”

Comment

The Upper Tribunal’s decision serves as a reminder in SEND Tribunal cases of the particular importance for respondents and their advisers of not losing sight of any of the claims which have been advanced in the claim form, and of their duties (especially where legally represented) to assist the Tribunal in identifying and understanding the nature of those claims, both from the pleadings and any other key documents where the claimant sets out their case. It will rarely be appropriate to strike out discrimination claims as having no reasonable prospects of success, but where such a course is sought, schools and their representatives will need to ensure that the Tribunal has clarity on what claims are in scope and why each should be dismissed, in order to avoid a strike out being overturned as happened here. As the Upper Tribunal bluntly noted, you cannot decide whether a claim has reasonable prospects of success if you don’t know what it is.

If you have any questions regarding this information discussed in this article, or how this decision might impact you, please contact Martin Jensen.