SEND and out of time disability discrimination claims

The Upper Tribunal appeal in The Governing Body of a School v M [2026] UKUT 161 (AAC) concerned the nature of the First Tier Tribunal’s (Special Educational Needs and Disability) (“the SEND Tribunal”) discretion to consider an out of time disability discrimination claim pursuant to Sch.17 para 4(3) of the Equality Act 2010 (“the EqA 2010”).

The Appellant School sought to challenge the SEND Tribunal’s decision to consider M’s claim that, in permanently excluding her son, the School had subjected him to discrimination arising from disability (contrary to s.15 and s.85(2)(e) EqA 2010), notwithstanding that M had brought the claim seven weeks out of time.

The Appellant School did not appeal the SEND Tribunal’s conclusion that it had discriminated against M’s son, with its “deeply flawed” decision making process indicating “a fundamental misunderstanding of the school’s responsibilities under the Equality Act 2010 and more widely in respect of permanent exclusions”.

The Appeal

Before the Upper Tribunal, the Appellant School contended that:

• The SEND Tribunal had erred in the procedure it had adopted and had failed to determine the time issue as a “genuine preliminary matter”. In particular, the SEND Tribunal heard evidence on the merits and then used its substantive findings to shape its decision on the time issue thereby putting “the cart before the horse” (“Ground 1”).
• In deciding whether to consider an out of time disability discrimination claim pursuant to Sch.17 para 4(3) EqA 2010, the SEND Tribunal must apply the “just and equitable test” contained in s.118(1)(b) and s.123(1)(b) EqA 2010 (and applicable in the context of EqA 2010 claims brought before the County Court and Employment Tribunal respectively), combined with a strong presumption against considering an out of time claim. The SEND Tribunal had not done so and had therefore failed to apply the correct legal test (“Ground 2”).
• The SEND Tribunal’s findings of fact and evaluative conclusions that M was “materially hindered” in bringing her claim in time were perverse and/or unsupported by evidence (“Ground 3”).

The Appeal was dismissed on all grounds. Adopting M’s submissions, the Upper Tribunal concluded that:

Ground 1: Ground 1 went nowhere. The SEND Tribunal’s approach was entirely consistent with its previous orders. Further and in any event, the decision to proceed as it did was well within the generous ambit of its discretion to determine case management issues as it saw fit. Nor was there any unfairness or prejudice to the School in the procedure adopted. Furthermore, there was nothing inherently unfair in the SEND Tribunal considering the merits (or its impression of the merits) of the substantive claim when determining whether to consider the claim out of time pursuant to Sch.17 para 4(3) EqA 2010.

Ground 2: The SEND Tribunal’s discretion under Sch.17 para 4(3) EqA 2010 is not governed by the “just and equitable test” whether allied with a “strong presumption against the admission of a late claim” or not. Parliament’s choice of a different test for the treatment of late disability discrimination claims in the SEND Tribunal must be taken as deliberate.  Moreover, there is an important and fundamental difference of conceptual approach adopted in s.118 (and s.123) and Sch.17 para 4(3) EqA 2010 respectively. The former sets a statutory time limit which can then be extended where the “just and equitable” test is met. The latter sets an absolute and immutable legislative time bar but then invests the SEND Tribunal with a discretion to consider a disability discrimination claim which is (and remains) out of time. This reflects the fact that wider public interest considerations are (or at least may be) at play with disability discrimination claims in the SEND Tribunal (and Sch.17 para 4(3) EqA 2010).

Accordingly, the extensive jurisprudence on the “just and equitable” test does not have a direct or even an indirect read across to the application of Sch. 17 para 4(3) EqA 2010. Read on its own terms, Sch.17 para 4(3) EqA 2010 plainly invests the SEND Tribunal with a general discretion - “The Tribunal may consider a claim which is out of time”, no more and no less.

The SEND Tribunal had applied the correct test when deciding to consider M’s claim out of time.

Ground 3: Ground 3 was no more and no less than an impermissible attempt to re-argue the facts as found by the SEND Tribunal. The invitation for the Upper Tribunal to revisit the SEND Tribunal’s factual findings was both resisted and declined.

Guidance on the exercise of the Sch.17 para 4(3) EqA 2010 discretion

The SEND Tribunal, in granting permission to appeal, stated that “in general terms, guidance from the Upper Tribunal on how the First-tier Tribunal should approach late admissions would be welcome.” 

In response to that invitation, the Upper Tribunal provided the following guidance at §59:

“…the short answer is that the discretion under paragraph 4(3) should be exercised consciously and judicially. Ultimately, that is a matter for the good judgement of the FTT (see JL v Governing Body of Cherry Lane Primary School [2019] UKUT 223 (AAC); [2019] ELR 505 at paragraph 38). However, and in broad summary, the FTT may have regard to any factors that it considers to be relevant, subject only to the condition that it does not act irrationally or perversely. Those factors may include (but are not limited to) the length of time by which the claim is late, the reasons why the claim was late, the merits (or apparent merits) of the claim, the importance of the claim to the claimant and/or the child, the likely prejudice to either party (depending on whether or not the claim is considered out of time) and the wider public interest in the claim being heard. It would be wrong for the Upper Tribunal to be any more prescriptive, given the open-textured nature of the discretion conferred by paragraph 4(3).”

Roisin Swords-Kieley is a barrister at Matrix Chambers. She represented the Respondent Mother, instructed by Alex Stafford at IPSEA.