A pupil with a disability as defined under the Equality Act 2010 attended a school which catered for pupils with learning difficulties and complex needs. The pupil was to move to a new tutor group at the start of the new academic year but the school did not prepare a specific school year transition plan to assist him with that move. The First-tier Tribunal upheld a claim by the pupil’s father that, by failing to prepare an individual transition plan, the school had breached its duty under section 20(3) of the 2010 Act, read with paragraph 2 of Schedule 13, to make “reasonable adjustments” where a practice of the school put “disabled pupils generally at a substantial disadvantage in relation to provision of education … in comparison with persons who were not disabled”. The school appealed on the grounds that the tribunal had (i) misapplied the requirement for the substantial disadvantage to have been experienced by disabled pupils generally and (ii) failed to identify the comparator group by reference to which it held that disabled pupils generally experienced substantial disadvantage.
On the appeal—
Held, appeal allowed. The provision of a transition plan in the school context fell within the definition of “provision of education” for the purposes of section 20(3) and paragraph 2 of Schedule 13 to the Equality Act 2010. The reference to disadvantage to “disabled pupils generally” required examination of the impact of a provision, criterion or practice on a group of pupils, rather than on an individual pupil, although it did not refer to all disabled pupils given the wide range of disabling conditions. A comparison was then to be made of the effects on disabled pupils with the effects on persons who were not disabled, applying a context-specific approach. The comparison could not be with other disabled persons with a different disability, and the comparator group was not limited to non-disabled pupils at the same school, since that would deny disabled pupils attending a special school rather than a mainstream school from bringing a reasonable adjustments claim. Instead, the comparator group could be taken from persons beyond pupils at the school concerned and the comparator could be hypothetical. In the present case, the correct comparator group was with a non-disabled child about to move to a new school year with new demands. The First-tier Tribunal had erred by reaching a conclusion by reference to “disabled pupils generally”, without making clear whether it meant any and all disabled pupils or a subset of them, and by making an inadequately reasoned comparison with non-disabled “pupils” without indicating what it meant by that or whether the comparison was with hypothetical non-disabled pupils elsewhere, and without having any evidence about the effect of a lack of a documented transition plan on a hypothetical non-disabled pupil moving to a new stage in their education (paras 27–28, 30–32, 34, 37–40, 42, 48–55).
Per curiam. Given the multitude and potential combinations of causes of disability, defining the group to which the impact of any provision, criterion or practice which falls to be examined will often be difficult. Section 136 of the Equality Act 2010 may help individuals pursuing a claim to amass sufficient evidence about the impact on others and there may be cases where voluntary organisations dedicated to assisting those with a particular condition can help (para 29).
Andrew Cullen (of Browne Jacobson) for the school.
The father in person.