IN THE UPPER TRIBUNAL Case No  HS/754/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mrs S in person, supported by her friend Mrs H

 

For the Respondent: Mr R McManus QC and Ms S Hannett, instructed by Head of Legal and Democratic Services

 

Decision: 

 

1. There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of the appeal: rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies.

 

2. I uphold the Council’s challenges to the decision of the First-tier Tribunal.  The decision of the First-tier Tribunal on 24 November 2008 involved the making of an error of law (on the grounds put forward by the Council) and is set aside. Acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in terms that there was no jurisdiction to hear Mrs S’s claim received by SENDIST (the statutory predecessor to the First-tier Tribunal) on 13 March 2008.

 

3. Consequently, whether or not, as Mrs S alleged, the tribunal also erred in concluding that C did not have a disability for the purposes of the Disability Discrimination Act 1995 is not material.

 

 

REASONS FOR DECISION

 

1. Buckinghamshire County Council (“the Council”) operate a system of secondary education consisting of grammar schools and upper schools. C, approaching his eleventh birthday at the time tribunal proceedings were commenced, was unsuccessful in the tests operated on behalf of the Council.  He is dyslexic.  Precisely what question was before the tribunal is one of the issues in this appeal, but, put deliberately broadly, concerned whether he was unlawfully discriminated against on the grounds of disability in the arrangements for secondary transfer.

 

2. It is now more than 2 ½ years since the original claim was lodged.  The delay arises because considerable, if ultimately unsuccessful, efforts were made by Upper Tribunal staff to assist Mrs S in obtaining legal representation; hearings had to be postponed firstly because Mrs S was unable to travel because of heavy snow, then because of a personal issue affecting her supporter, and further delay ensued because Mrs S had limited availability for rescheduling the hearing.  Such delay is unusual and regrettable, though of less consequence in this case given that Mrs S’s stated purpose is not to seek any remedy which might benefit C, but rather to get the Council’s policies changed.

 

3. Although Mr S was a party to the proceedings before the First-tier Tribunal, it is only Mrs S who is a party before the Upper Tribunal.  In the interests of brevity therefore I refer to “Mrs S” in the explanation below, but where the context makes it appropriate, this should also be taken as referring to Mr S.

 

4. Parents of children in the Council’s area have the opportunity to express a preference as to the secondary school which their child will attend. Grammar schools in the Council’s area have admission arrangements that select children by ability.  The decision as to which type of school is more appropriate for a child is taken by the Director of Children’s Services, on the basis of the child’s performance in a verbal reasoning test.  Consequently, it is open to parents to indicate their preference as to grammar schools (i.e. on the assumption that their child will be successful in the test) and, in the alternative, their preference as to upper schools and this is what Mrs S did.  The test is sat during the autumn term when a child is in Year 6.  Each child sits two tests, the scores are standardised and the lowest mark is disregarded. To be considered for grammar school, a child was required to meet the minimum qualifying standard, which for admission in September 2008 was a score of 121.

 

5. The Council accepts that it has a duty under the Disability Discrimination Act 1995 (“the 1995 Act”) to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage in comparison with persons who are not disabled.  Prior to the test, the Council invited all schools to submit evidence in support of any of their pupils for whom they felt modified test material or conditions might be appropriate. These requests were considered by a Review Panel, whose members had backgrounds in special educational needs, educational psychology and as head teachers.  The Review Panel determined whether the child was disabled for the purpose of the 1995 Act and whether there was sufficient evidence to support a modification.

 

6. This procedure was followed in C’s case.  The Review Panel concluded that he was disabled for the purposes of the 1995 Act and decided that he should be allowed an extra 10 minutes for the paper. In October 2007 C sat the test, with the stipulated extra time, obtaining a score of 114.  This was communicated by a letter dated 23 November 2007, which having indicated the score C had obtained, continued:

 

“The minimum standard (mark) required for entry to a Buckinghamshire grammar school in September 2008 is a final verbal reasoning test   score of 121. You may request a selection appeal if your child did not reach the minimum standard for grammar school entry…

 

As [C’s] final verbal reasoning test score was less than 121, during the allocation process we will not be able to consider any grammar school preferences you may have made.  We will try to find [C] a place in an upper school or an out of county comprehensive school…, depending on the admission rules for your preferred schools and the order in which you ranked your preferences.”

 

7. By an application dated 3 December 2007, Mrs S appealed to the Independent Appeals Panel (“IAP”) operated by the Council. Following a hearing on 6 February 2008, the IAP rejected the appeal.  They accepted that C was disabled for the purposes of the 1995 Act, but considered that reasonable adjustments had been made for him by providing the extra 10 minutes.

 

8. In February 2008 Mrs S complained to the Local Government Ombudsman about the admissions process.  That complaint was rejected by a letter dated 14 April 2008.

 

9. By a claim received by SENDIST on 13 March 2008, Mrs S contended that the Council had failed to make reasonable adjustments for C when he took the test.  It was stated that he should have had a reader and/or a different examination.  The remedy sought was a place at the J (grammar) school.  The date of the decision said to be being appealed against was 6 February 2008, the date of the IAP hearing.

 

10. After correspondence between SENDIST and Mrs S, the claim was registered on 30 May 2008 on the brief grounds that “Buckinghamshire Local Education Authority treated [C] less favourably in arrangements for secondary transfer.”  The remedy of a place at the J school, which the tribunal had no power to award on any view, was no longer pursued.

 

11. On 2 July 2008 the Council applied to strike out the claim on the ground that the tribunal had no jurisdiction.  Such an application in an apparently similar unrelated case, also involving the Council,  had previously been upheld by SENDIST. This time, however, the application was refused, by a decision dated 19 September 2008.  I return below to that decision. 

 

12. On 6 November 2008, the claim was heard.  The tribunal declined to revisit the question of jurisdiction, taking the view that it had already been decided in favour of Mrs S when the strike-out application was refused.  However, they concluded that C was not a disabled person for the purposes of the 1995 Act.  It was against that decision that Mrs S sought to appeal, contending that the tribunal had failed to apply correctly the decision of the Employment Appeal Tribunal in Paterson v Commissioner of Police for the Metropolis [2007]UKEAT 0635/06; [2007] ICR 1522.  The First-tier Tribunal judge gave her permission to appeal on this ground.  In oral argument before me Mrs S added that the conclusion that C was not disabled was in effect perverse in the legal sense.

 

13. In its response, the Council invited the Upper Tribunal to uphold the decision for the reasons given by the First-tier Tribunal.  However, it further argued: (a) the First-tier Tribunal had been wrong to decline to revisit the issue of jurisdiction on the grounds that it had already been addressed in the course of the strike-out application; (b) the First-tier Tribunal did not have jurisdiction to hear the claim; and (c) if that was wrong and the First-tier Tribunal did have a residual jurisdiction, there is no useful relief it could grant. It is to those arguments that I turn first, as they go to matters of jurisdiction.

 

14. The decision of 19 September 2008 was taken under regulation 44 of the Special Educational Needs Tribunal Regulations 2001 (SI 2001/600).  These conferred a power to strike out if either:

(a) the appeal is not, or is no longer, within the jurisdiction of the Tribunal or

(b) the notice of appeal is, or the appeal is or has become, scandalous, frivolous or vexatious.

The application to SENDIST was not for the point to be determined as a preliminary point, but for a strike–out.  I accept that the power to strike out is only to be exercised in plain and obvious cases (cf. Lonrho PLC v Fayed [1990] 2 QB 479 at 489 F-G).  I accept the submission that merely because a strike-out application based on a given point has failed on such a test, that does not mean that the same point could not succeed at full hearing, after further investigation and fuller argument.  The decision of 19 September 2008, being on a strike-out application, was not a final decision and could not be determinative of the ultimate position between the parties.  The tribunal erred by treating it as if it was.

 

15. Turning then to the issue of jurisdiction, as noted above, the claim was registered on the basis that “Buckinghamshire Local Education Authority treated [C] less favourably in arrangements for secondary transfer.” The tribunal in its decision put it in terms that:

 

“[C’s] parents have brought this claim of disability discrimination against their local education authority on the grounds that the 11+ tests used to select those students to whom grammar school places should be offered at the end of key Stage 2 discriminate against those with dyslexic difficulties.  They argue that [C] has therefore been discriminated against because despite his high underlying intelligence he was unable to obtain a high enough score on the 11+ test to secure a place at grammar school, and that analysis of the results confirms that the deficit was a function of his dyslexia, which is a disability under the Act.”

 

I accept that as being an accurate statement of the case Mrs S was putting forward. 

 

16. The tribunal only has the jurisdiction conferred upon it by statute. It does not enjoy any more wide-ranging remit. In cases of this type its jurisdiction was set out in section 28I of the 1995 Act which at the material time was, so far as relevant, in the following terms:

 

 “(1) A claim that a responsible body–

(a) has discriminated against a person (“A”) in a way which is made unlawful under this Chapter, or

(b) is by virtue of section 58 to be treated as having discriminated against a person (“A”) in such a way,

may be made to the appropriate tribunal by A's parent.

 

(2) But this section does not apply to a claim to which section 28K or 28L applies

…”

 

17. This therefore takes us briefly to whether a “responsible body” has discriminated “in a way which is made unlawful under this Chapter”  before coming back to the central issue, the effect of section 28K,  below.

 

18. By section 28A:

 

“(1) It is unlawful for the body responsible for a school to discriminate against a disabled person–

(a) in the arrangements it makes for determining admission to the school as a pupil;

(b) in the terms on which it offers to admit him to the school as a pupil; or

(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.

…

(5) The body responsible for a school is to be determined in   accordance with Schedule 4A, and in the remaining provisions of this Chapter is referred to as the “responsible body”.

 

It is accepted that in the present context it is the local authority that is the “responsible body.” 

 

19. Sections 28B and 28C extend the scope of the duty under section 28A to the making of reasonable adjustments. While there might have been an issue as to whether the remedy sought fell within the category of ”auxiliary aids and services” so as to be excluded in any event from the duty under section 28C, that is not something which needs to be resolved.

 

20. The tribunal can only hear claims in respect of discrimination against an individual person.  It seems to me to be overwhelmingly likely to be the case that the claim, as described by the tribunal, falls within section 28A.  The complaint is about the impact of the test on C. In respect of any grammar school, the test is a critical part of the “arrangements” made by the authority “for determining admission to the school as a pupil”.

 

21. Once that is established, certain consequences follow.  In particular, the residual duty of education authorities not to discriminate imposed by section 28F, which applies to “the functions of a local education authority under the Education Acts”, is excluded, because of a carve-out in sub-section (4):

 

“…

(3) In discharging a function to which this section applies, it is unlawful for the authority to discriminate against–

(a) a disabled pupil; or

(b) a disabled person who may be admitted to a school as a pupil.

 

 (4) But an act done in the discharge of a function to which this section applies is unlawful as a result of subsection (3) only if no other provision of this Chapter makes that act unlawful.

…”

 

For the sake of completeness, I observe that section 28G is wholly dependent on section 28F and cannot apply where section 28F does not.

 

22. So there is an allegation of something which, if established, appears to fall under section 28A.  As noted above, section 28I (which would otherwise confer jurisdiction on the tribunal) does not do so where section 28K applies.  It is the latter section which lies at the heart of the Council’s contentions.

 

“ (1) If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an admissions decision that a responsible body–

(a) has discriminated against a person (“A”) in a way which is made unlawful under this Chapter; or

(b) is by virtue of section 58 to be treated as having discriminated against a person (“A”) in such a way.

 

(2) The condition is that arrangements (“appeal arrangements”) have been made–

(a) under section 94 of the School Standards and Framework Act 1998, or

(b) under an agreement entered into between the responsible body for an Academy and the Secretary of State under section 482 of the Education Act 1996,

enabling an appeal to be made against the decision by A's parent.

 

(3) The claim must be made under the appeal arrangements.

 

(4) The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.

 

(5) “Admissions decision” means–

(a) a decision of a kind mentioned in section 94(1) or (2) of the School Standards and Framework Act 1998;

(b) a decision as to the admission of a person to an Academy taken by the responsible body or on its behalf. “

 

23. For the section to apply, (a) a claim in relation to an admissions decision (as defined by sub-section (5)) must be involved; and (b) appeal arrangements must have been made under section 94 of the School Standards and Framework Act 1998 (“the 1998 Act”) enabling an appeal to be made against that decision by the pupil’s parent. Such appeal arrangements would be to an Independent Appeal Panel (“IAP”).  Mr McManus submits that I should give effect to the words “claim in relation to an admissions decision” by reading “in relation to” broadly.  I am not convinced that the words do any more than link the claim and the subject matter of the claim without any particular breadth being involved and prefer to base my decision on what is an “admissions decision”, to which I now turn.

 

24. Section 94 of the 1998 Act at the relevant time was (so far as material) in the following terms:

 

“(1) A local education authority shall make arrangements for enabling the parent of a child to appeal against—

(a) any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions, other than a decision leading to or embodied in a direction under section 96 or 97A (directions for admission) and

(b) [not material]

 

(1A) – (4) [not material]

 

(5) An appeal pursuant to any arrangements made under this section shall be to an appeal panel constituted in accordance with regulations.

 

(5A) Regulations may make provision about the making of appeals   pursuant to such arrangements, including provision—

(a) as to the procedure on such appeals,

(b) for the payment by the local education authority of allowances to members of an appeal panel, and

(c) [not material]

 

(5B) – (5C) [not material]

 

(6) The decision of an appeal panel on an appeal pursuant to arrangements under this section shall be binding on—

(a) the local education authority or the governing body by whom or on whose behalf the decision under appeal was made, and

(b) in the case of a decision made by or on behalf of a local education authority, the governing body of a community or voluntary controlled school at which the appeal panel determines that a place should be offered to the child in question.[...]

 

(7) [Not material]”

 

We are not concerned with directions under sections 96 or 97A.

 

25.  As already noted, I consider the subject-matter of the claim to fall within section 28A as concerning “the arrangements [the Council] makes for determining admission to the school as a pupil.” In any event, even if there is any technical argument suggesting otherwise (eg because a duty to make reasonable adjustments would not extend to “ancillary aids or services”),  in the context of the issue of whether it is  the First-tier Tribunal or the IAP that has jurisdiction,  I am not concerned with the formulation in the 1995 Act  but with that in section 94 of the 1998 Act: “any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions.” 

 

26. It seems to me that the language of section 94(1)(a) is relatively widely drawn.  If the draftsman had wished to confer a right of appeal only against the school named by a local authority at the end of the admissions process, it would be easy to have done so.  By contrast, the use of the word “any” suggests that there may be a variety of decisions caught by the sub-section and (as the Council accepts) more than one, if need be, in relation to any pupil.  The words “as to” have the significance of “so far as it concerns” or “with respect or reference to”, which in my view leave open the possibility that a decision other than the naming of the school which the child is to attend may fall within the ambit of the sub-section.  In the present case, we are concerned with a negative, in that the effect of the test whose content and/or the lack of reasonable adjustments in the operation of which is the subject of complaint is to exclude the pupil concerned (subject to any appeal) from attending the grammar school of preference or indeed any grammar school within the Council’s area: see the letter of 23 November 2007, quoted at [6] above. That the school at which education is to be provided will not be a grammar school appears to me to be within the wording of section 94(1)(a), as I have interpreted it above.  Such a view is consistent with an effective appeal process in such cases, in that it provides for a statutory right of appeal at the stage when what will principally be the live issue (is my child eligible for grammar school?) can still be addressed, whereas to consider that issue only in the context of an appeal against the naming of a particular upper school later in the process might be too late to be effective, if allocations have by then been made to the various grammar schools.

 

27. Such a view of the scope of section 94 is understood not to have been the view in December 2009 of the Department for Children, Schools and Families (now the Department for Education).  The Council in the present case submitted a letter dated 22 December 2009  from the then DCSF to a recipient whose identity  has been redacted, which had been copied to the Council following a query raised by Rt Hon John Bercow MP, and a letter dated 23 February 2010  from the Council to Mr Bercow.  The first letter sets out the DCSF’s view that appeals in respect of failure to be selected for grammar schools following a test are not statutory appeals under section 94 of the 1998 Act and the second, the Council’s comments on that letter.

 

28. Following submission of those letters, I directed in the light of the divergence of view between the DCSF and the Council that the papers be served on the DCSF and offered the DCSF the opportunity to become a party in the present proceedings. The DCSF declined.  I have however reviewed the arguments set out in their correspondence.

 

29. The DCSF’s letter asserts that:

 

 “Appeals required under section 94 of the SSFA do not include those provided in relation to failure to pass a test for selection by a grammar school. Buckinghamshire’s selection appeals deal with the outcome of a particular test but not the allocation or otherwise of a particular school place. School admissions appeals set up under section 94 are in relation to decisions made by an admission authority refusing a child admission to a particular school; or as to the school at which education will be provided.”

 

Thus far, this represents an assertion, rather than any attempt to interpret section 94.

 

30. The DCSF then relies in correspondence on the content of the Education (Admissions Appeals Arrangements) Regulations 2002 (“the 2002 Regulations”), paragraphs 2.75 of the School Admissions Code and paragraphs 3.34 to 3.38 of the School Admissions Appeals Code.

 

31. In relation to the 2002 Regulations, the point is said to be that they require an IAP to take into account matters which could not be relevant on an appeal against the test outcome.  The point is made by reference to the provisions of regulation 6, which provides that:

 

 “…the matters to be taken into account by an appeal panel, in considering any appeal, shall include-

(a) any preference expressed by the appellant, and

(b) the school’s admission arrangements”

 

neither of which, it is said, can be relevant to an appeal of the present type.  I do not accept that. The appellant’s preference is for a named grammar school, to which the outcome of the test has been an obstacle.  Such a preference is within the range of preferences legally available, where such schools exist: see the 1998 Act, section 86(3), which expressly contemplates such preferences.  By addressing concerns about the test, the panel is taking account of the expressed preference.  As to the second point, it is the admission arrangements for the school which will expressly provide for selection by ability or aptitude.  This is expressly contemplated by legislation such as section 86(3) and (9) and sections 99-109 of the 1998 Act and I am unable to see that an appeal panel, seeking to ensure that the testing arrangements on which admission to the school depends have been applied fairly and in accordance with disability discrimination and other equalities or anti-discrimination legislation, is not taking into account those admission arrangements.  Even if I were to assume that this was a case in which it was legitimate to have regard to the text of delegated legislation in order to construe the Act under which it is made, I do not accept that there is any incompatibility such as to bear on the construction of the Act.

 

32. The School Admissions Code and the School Admissions Appeals Code are issued under section 84 of the 1998 Act which provided (in the version in force at the time of Mrs S’s appeals to the IAP and the SENDIST) (emphasis added) that:

 

“(1) The Secretary of State shall issue, and may from time to time revise, a code for school admissions containing such provision as he thinks appropriate in respect of the discharge by—

(a) local education authorities,

(b) the governing bodies of maintained schools,

(ba) admission forums,

(c) appeal panels, and

(d) adjudicators,

of their respective functions under this Chapter.

 

(2) The code may impose requirements, and may include guidelines setting out aims, objectives and other matters, in relation to the discharge of their functions under this Chapter by local education authorities and such governing bodies.

 

(3) It shall be the duty of—

(a) each of the bodies and persons mentioned in subsection (1) when exercising functions under this Chapter, and

(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,

to act in accordance with any relevant provisions of the code.

 

It is clear therefore that the Codes cannot modify what are the functions under the relevant Chapter and if the Chapter’s provisions, properly construed, provide for an appeal in the type of case with which the present case is concerned, the Codes cannot determine otherwise. Nonetheless, it is right that I have regard to this material in reaching my conclusion as to what the provisions of the Chapter do mean.

 

33. Paragraph 2.75 of the School Admissions Code provides:

 

“Some admission authorities for grammar schools use a review system to consider whether children who have marginally failed to reach the required standard in the entrance test could be deemed as being of grammar school ability.  This is not a statutory process, and does not replace a parent’s formal right of appeal against refusal of a place.  In view of the need to co-ordinate allocation of places such reviews must be completed before places are allocated, so that children who are deemed as being of grammar school ability as a result of the review can be considered for allocation of places at the same time as others.”

 

This material again does not move beyond an assertion.  Indeed, its acknowledgement that such “reviews” need to be completed before places are allocated emphasises the central role of tests in determining whether pupils go to grammar schools or not, which might suggest that the better view is that they do concern an “admissions decision” as defined by section 94. There is no reason why the final decision, after the allocation places is notified, should not also be a statutory appeal.  This will be particularly relevant in cases where there are additional criteria to address the situation where there are more children who meet the academic standard than there are places available, but is not so limited.

 

34. The School Admission Appeals Code contains the following:

 

“3.34 Some admission authorities for grammar schools choose to operate a non-statutory or “local review” system, before the allocation   of places is decided, to determine whether children who have not reached the specified standard ought to be deemed as being of   grammar school standard. This does not replace parents’ or, where appropriate children’s, rights to have their appeal against refusal of a place at a preferred school heard by a statutory appeal panel.

 

…

 

3.38 Where a local review process [sc. as described in 3.34] has been followed, the panel must not make its own assessment of the child’s ability, but must consider whether each child’s review was carried out in a fair, consistent and objective way e.g. whether the same type of evidence was used in all cases.  If there is no evidence that this has been done, the panel must follow the process in paragraph 3.37”

 

It is not necessary to set out paragraph 3.37 here.

 

35. Once again, the status of such “reviews” is a matter of assertion without reasoning in support. On the other hand, it appears odd given the apparent position of the DCSF that where there is such a review (said to be non-statutory), the role of the (ex hypothesi statutory) appeal is in effect limited to reviewing the review as this suggests that the review in some way does have a part to play in ensuring that the statutory process contemplated by section 94 is in fact delivered.

 

36. For the reasons given, nothing in these provisions of either Code persuades me that section 94 should be read otherwise than I have read it at [26] above. No complaint is made by Mrs S that the constitution of the IAP in the present case or any aspects of its operation were not in accordance with the 2002 Regulations so there is no other obstacle to the Council’s contention that what was involved was a section 94 appeal and that there were arrangements in place under that section for that appeal.  I am of course only concerned with the arrangements as operated by this Council in the year at issue in this case,  but conclude that  for the reasons set out  above, it was the IAP and not SENDIST (or its successor, the First-tier Tribunal) which had jurisdiction in the present case.  Where the conditions are met, section 28K(3)  is mandatory in its effect.

 

37. The IAP considered the matter and reached a decision.  The Upper Tribunal has no jurisdiction over the IAP and Mrs S has not challenged the IAP’s decision by way of judicial review. Its decision accordingly stands.

 

38. I am conscious that Mrs S’s appeal raised questions of some difficulty about the interpretation of section 1 of the 1995 Act and its applicability to the facts of the present case and that she has been met by a wave of technical legal points which has ultimately prevailed.  That the points in her appeal were arguable is reflected in the grant of permission to appeal by the First-tier Tribunal judge.  As I am setting aside the decision of the First-tier Tribunal (although on the Council’s grounds), the tribunal decision that C was not disabled for the purposes of the 1995 Act no longer has any effect.  The relevant body to take the decision was the IAP.  Whether the First-tier Tribunal erred in finding that C was disabled can have no relevance to the outcome of my decision and in those circumstances it is not appropriate for me to express a view on the arguments on that aspect.  I intend no disrespect to those arguments thereby.

 

39. I should end by expressing my thanks to Mrs H and to Mr McManus: each in different ways worked co-operatively with the Upper Tribunal to ensure that all relevant points were articulated.

 

 

 

CG Ward

Judge of the Upper Tribunal

12 November 2010