Case Law Analysis: Disability Discrimination & Reasonable Adjustments in Special Schools

Citation: [2024] UKUT 9 (AAC)
Judgment on

Introduction

The case of A Multi Academy Trust v RR ([2024] UKUT 9 (AAC)) addresses critical issues surrounding disability discrimination in the context of educational settings, particularly special schools. This case provides an opportunity to examine how the Equality Act 2010, and specifically the duty to make reasonable adjustments for disabled pupils, has been interpreted by the Upper Tribunal under the lens of previous case law and statutory guidance.

Key Facts

The appeal centers around the claim that the appellant, A Multi Academy Trust (a special school’s proprietor), failed to make a reasonable adjustment for a pupil, SR, with regard to school year transition planning. The First-tier Tribunal (FtT) upheld this claim, asserting that the lack of a documented individual transition plan for SR constituted a failure to fulfill the reasonable adjustments duty under section 20(3) of the Equality Act 2010, putting disabled pupils generally at a substantial disadvantage compared to non-disabled persons.

The appellant challenged this decision on the grounds that the FtT misapplied the substantial disadvantage requirement to “disabled pupils generally” and inadequately identified the correct comparator group, further arguing a lack of evidence to support the FtT’s findings.

The case analysis delves into the interpretation of “disabled pupils generally” and “persons who are not disabled” within the context of the Equality Act 2010:

  1. “Disabled Pupils Generally”: The Upper Tribunal Judge Ward, referencing Fordham J in R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin), clarified that the reasonable adjustments duty is class-based rather than individualized. It necessitates considering the needs of the sub-class of disabled pupils affected by the provision, criterion, or practice (PCP) rather than the individual claimant. This approach aligns with the anticipatory nature of the duty, as highlighted in Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191 and SSWP v MM and DM [2013] EWCA Civ 1565.

  2. Comparator Group - “Persons Who Are Not Disabled”: The Tribunal stressed that the comparator group involves individuals who do not share the same disabling characteristic. This is derived from the Act’s requirement for a non-discriminatory comparison. The legal principle, supported by the analysis of Fordham J in Rowley, suggests rejecting comparisons with individuals who have other disabilities, which supports the comparison with the non-disabled population at large.

  3. Paradigm of Comparison: It was ascertained that comparison within the Act does not necessarily have to be with someone within the same institution. Cases like Ishola v Transport for London [2020] EWCA Civ 112 reaffirm that a hypothetical comparator to whom the PCP could apply is permissible. Additionally, the concept that the comparator must be an individual to whom the responsible body could apply the PCP was established in Smith v Churchill’s Stairlifts plc [2006] IRLR 41.

  4. Section 136 - Burden of Proof: The case references the evidential aspect of proving disability discrimination under section 136 of the Act. It demands facts that could lead a court, in the absence of any other explanation, to conclude a contravention of the provision.

Outcomes

The Upper Tribunal allowed the appeal in part, setting aside the FtT’s decision due to an error of law related to the misapplication of the substantial disadvantage test and the identification of the comparator group. The matter was remitted back to the FtT for reconsideration, with directions to redefine “disabled pupils generally,” establish the impact of the PCP on them, and determine the comparator’s impact.

Conclusion

The judgment in A Multi Academy Trust v RR brings significant clarification on the interpretation of the reasonable adjustments duty under the Equality Act 2010, notably in its application to special schools. The focus on class or sub-class comparators, the acknowledgment of hypothetical comparators, and the clear delineation between those who are disabled and those who are not, pave the way for a nuanced approach to disability discrimination in educational settings. Judges and practitioners must now ensure that claims under section 20(3) of the Act are framed with a precise understanding of the duty’s group-based and anticipatory nature while providing comprehensive reasons grounded in evidence that aligns with the established legal principles.