Parents win fresh hearing of claim of failure to make reasonable adjustments to delivery of curriculum

The First Tier Tribunal “materially erred in law” in its determination of reasonable adjustments claims brought by parents in relation to their daughter.

In KTS v Governing Body of a Community Primary School [2024] UKUT 139 (AAC) , Upper Tribunal Judge Stout concluded: “Although only two grounds of appeal succeeded, it seems to me that the Tribunal's approach to the reasonable adjustments element of this case was erroneous and that as a result there has been a wholesale failure to determine the claim that was actually made.”

The FTT decision was set aside insofar as it concerned that claim, which will now by heard by a new and different First-Tier Tribunal.

The case concerned D who was at the time of the matters that were the subject of the claim a pupil at a community primary school.

D has a diagnosis of Autistic Spectrum Disorder (ASD) and has had an Education Health and Care Plan (EHCP) made and maintained by the local authority.

D's parents, the appellants, brought claims under the Equality Act 2010 against the governing body of her primary school (the responsible body or RB).

There were three heads of claim: two claims under s 15 of the EA 2010 that succeeded and one claim of failure to make reasonable adjustments that was dismissed by the Tribunal.

In the appeal to the Upper Tribunal, the parents appealed against the dismissal of the reasonable adjustments claim. Permission to appeal was granted on four grounds:

• Ground A - The First-tier Tribunal erred in finding that a school is entitled to take time and to exercise discretion and professional judgment as to the steps that it takes and the adjustments that it makes for pupils;
• Ground B - The First-tier Tribunal erred in finding that there is no duty to achieve a goal or objective under the duty to make reasonable adjustments;
• Ground C - A finding that there was no dictation or copying and that D's written work was her own was not open to the First-tier Tribunal on the evidence;
• Ground D - The overall conclusion that there was no breach of the duty to make reasonable adjustments was the result of a misdirection in law, because that duty does not merely require some steps to be taken, but all the steps as it is reasonable to have to take to be taken.

Upper Tribunal Judge Stout said D has had an EHCP since December 2015. When the EHCP was first issued, the local authority had named a special school for D's provision, but after an appeal to the First-tier Tribunal, D was placed in a mainstream school, one year behind her chronological age.

D attended a nursery and another mainstream primary school before transferring in November 2020 to the mainstream community primary school that was the respondent to the proceedings.

The judge said: “D's EHCP records her ASD diagnosis and, in Section B, describes how this "impacts on her speech and language, her social communication and interaction, her play and her ability to share focus and take adult direction". It states that she "presents with a language disorder ... has very disordered expressive language which impacts upon her ability to communicate significantly" and that her "receptive and expressive language skills continue to be significantly behind that of her age matched peers".”

D's parents became concerned about the progress that D was making at school and about certain aspects of her educational provision and commenced a claim to the First-tier Tribunal under the EA 2010 in September 2022.

At a Telephone Case Management Hearing two months later, Judge Ozen identified the grounds of claim in outline.

The third ground was recorded as being an allegation that the school “failed to differentiate [D's] curriculum".

The Tribunal ordered the parents to identify: (i) the specific failure or unfavourable treatment being alleged; (ii) the date or date range when the failure/treatment arose; (iii) how the claimants say that failure arises from D's claimed disability; and (iv) the disadvantage that D has suffered as a result.

One example of four specific incidents cited by the parents was outlined by Upper Tribunal Judge Stout as follows:

“[On one occasion] it was alleged that D was expected to follow mainstream teaching without appropriate differentiation in relation to a topic about teeth and without using a multisensory approach such as being provided with a model of teeth as an additional learning tool.”

Another example provided by the parents was that when the class was doing 'The War of the Worlds', D had produced two pages of complicated sentences and long words in response to prompt text which the appellants considered had been dictated or scribed.

The matter came on for final hearing in April 2023.

Considering the third claim, that the school did not differentiate D’s curriculum at school and so failed to make reasonable adjustments for her, the First Tier Tribunal concluded: “We note and accept the steps that the school has taken to support [D]. We acknowledge that [D] has made little or no progress in literacy, but are satisfied (given what [The Headteacher] told us, which was not disputed) that numeracy was an area of relative strength and that [D] was generally happy in school, with good relationships with peers and others.”

It continued: “To the extent that we are required to make findings about the way in which the school supported [D] with her literacy, we accept [the Headteacher]'s explanation that there was no dictation or copying, as the Claimants allege, and that [D]'s written work was her own, produced over several days in accordance with the colourful semantics approach (as recommended by the Speech and Language Therapist) that the school followed and with a good degree of scaffolding and support. We find this because [the Headteacher] as headteacher has responsibility for this provision and is well placed to tell us about it. We were satisfied that he had a good understanding of [D] and the provision made for her.

“[…] There may well be questions about the effectiveness of this approach for [D] given that she did not appear to understand much of the text that she had written, but that does not of itself mean that the exercise had no value or that the school discriminated against her in following it. Given the context referred to above, the school was entitled to try this approach. If, on reflection and based on evidence, that approach did not work well for [D] or required adjustments in some way, then something different could be tried.”

Dismissing the third element of the claim, the First Tier Tribunal concluded that it was satisfied that the school made reasonable adjustments for D and therefore concluded that it did not discriminate against her under section 20 EA.

Turning to the parent’s appeal against this decision, Upper Tribunal Judge Stout considered the first two grounds (A and B) together.

On grounds A and B, counsel for the appellants, Steven Broach KC, relied on passages from the FTT’ss decision as being indicative of the Tribunal having “misdirected itself in law” in relation to the duty to make reasonable adjustments.

Upper Tribunal Judge Stout said she did not consider that the sentences in the FTT’s self-directions did not themselves disclose any error of law.

She said: “The sentence referred to in Ground A is taken from [31] of the Tribunal's decision, which is a paragraph where, as I read it, the Tribunal is setting out the sorts of factors that may be relevant to deciding whether a particular adjustment is reasonable. There is nothing wrong in principle, in matters of educational provision, with the Tribunal taking into account, when deciding whether it would be reasonable to make a particular adjustment sought by a parent, the professional opinion of staff as to what is working, or what is worth trying for a period, or allowing time for reflection and assessment before expecting changes to be made. Provided that the Tribunal keeps well in mind that it is ultimately for it as the Tribunal to make an objective decision about whether it would have been reasonable at a particular point in time for a particular adjustment to be made, there is nothing wrong with the Tribunal taking into account in making that decision the sort of factors that it mentions”.

Judge Stout continued: “As to the sentence referred to in Ground B, that is taken from [32] of the First-tier Tribunal's decision and in my judgment there is nothing objectionable about it. In context, all the Tribunal is saying in this paragraph is, quite correctly, that the duty to make reasonable adjustments is not a duty to achieve a particular result, nor is it to be equated with the "best endeavours" duty under s 66 of the CFA 2014. Indeed, as is clear from the legal principles I have set out above, it would be an error of law if the Tribunal had conflated the s 66 duty with the reasonable adjustments duty.”

Grounds A and B were dismissed.

On ground C, counsel for the appellants submitted that the Tribunal reached a “perverse or irrational conclusion” at [35] that (judge’s emphasis added) "there was no dictation or copying ... and that [D's] written work was her own, produced over several days in accordance with the colourful semantics approach (as recommended by the Speech and Language Therapist) that the school followed and with a good degree of scaffolding and support".

The judge said: “I have considered both side's submissions carefully, and remind myself that perversity is a high threshold which means that the conclusion must be irrational or wholly unsupported by the evidence.”

She added, however, even bearing in mind the latitude that must be granted to First-tier Tribunals on such factual findings, it seemed to her that the Tribunal in this case had erred in law in its conclusion at [35] "for the following reasons:

1. In finding that there was "no dictation or copying", it has in my judgment perversely overstated the position. That may have been true of the work on Goldilocks that the headteacher dealt with in his document at p 215 of the bundle, but it was irrational to find that was the case in relation to all of D's work, including in particular the examples that were given in the appellants' further particulars which evidently included complex words and sentences (much more complicated than anything in the Goldilocks' example), where at least some dictation or copying had to have taken place. Alternatively, and at any rate, in the absence of any reasons in [35] dealing with why the Tribunal rejected the appellant's case that this work was beyond D's capabilities, the Tribunal's reasons on this point are inadequate.
2. The Tribunal's reasons in [35] appear to me to have mixed up the [Specialist Teacher and Area Manager] with the [Independent Educational Psychologist]. The Tribunal states that [the Area Manager’s] evidence on this was "speculative" but then go on to say that "she did not see any dictation or copying and relied on what she was told by a Teaching Assistant and her own judgment as to the type of work that [D] would be able to do". This seems to be a reference to paragraph 3.25 of [the Psychologist’s] report as [the Area Manager] does not purport to recount what the Teaching Assistant told her. There was no need for [the Area Manager] to do so as she was personally working with D for 6 hours every week. As such, what the Tribunal says about its reasons for rejecting [the Area Manager’s] evidence (such as it was on this issue) are not founded in the evidence, irrational and inadequate.
3. Even if the Tribunal has simply mixed up [the Area Manager and the Psychologist’s] names at this point, its reasons are inadequate and not founded in the evidence, because, although the TA's evidence is given 'hearsay' in [the Psychologist’s] report and [the Psychologist] herself did not attend to give oral evidence (and so could legitimately be given less weight by the Tribunal in principle): (a) the Tribunal has overlooked paragraphs 3.28 and 5.15 of [the Psychologist’s] report which indicate that she also personally witnessed copying; and, (b) the Tribunal has failed to take into account, when weighing the oral evidence of the headmaster against the 'hearsay' evidence of the TA, that a TA works with D 32.5 hours per week, while the headmaster will not have that extended personal contact.
4. I also agree with Mr Broach's submission that the conclusion that there was "no" dictation or copying is inconsistent with the school's own case that there was "shared composition" and "heavy scaffolding", each of which techniques inevitably requires the provision of some words or starter phrases which must be "dictated or copied".
5. Finally, I observe that the Tribunal in this same paragraph appears to have accepted the evidence that D "did not appear to understand much of the text that she had written" without dealing with the obvious point that D's lack of understanding supported the appellant's case that at least some of the work had been dictated or copied.”

Ground C succeeded.

On ground D, counsel for the appellants submitted that the First-tier Tribunal had “misdirected itself” at [31] in concluding that, because it found the school’s governing body had made some reasonable adjustments for D, that was sufficient to discharge its duty under section 20(3).

Mr Broach submitted that the First-tier Tribunal had failed to determine and/or erred in law in rejecting the appellant's case for other modest adjustments such as writing in small sentences that she could produce herself rather than big pieces of text, providing more visual aids and other (non-specific adjustments) recommended by professionals.

Considering the arguments, Upper Tribunal Judge Stout found that the Tribunal had erred in law in its determination of the reasonable adjustments claim in the way alleged by the claimant.

She said: “The particular errors that the Tribunal has made seem to me to be as follows:

1. It failed to clarify the issues at the start of the hearing.
2. It failed to focus on the nature and extent of the substantial disadvantage, glossing over its own finding that D had made "little or no progress in literacy". In principle, unless the Tribunal was satisfied that D would not have been capable, even with the right support, of making more progress in literacy, its own finding that she had made "little or no progress in literacy" meant that there was, on the face of it, a strong case that some additional or different provision was required to that which D had been receiving.
3. Although it had identified that the appellants had identified reasonable adjustments - the use of a multi-sensory approach, visual aids, and getting D to write short, simple text - it failed to make any findings of fact about whether and to what extent these particular adjustments were already in place. As already noted, it appears from what it says at [35] that it considered it did not need to make proper findings of fact on these issues. That was a misdirection.
4. In its conclusion at [37], it failed to give any reasons for why it had decided that the further adjustments sought by the appellants were not reasonable. Instead, it took the approach in this paragraph that, because the RB had provided her with some additional support and made some reasonable adjustments, the duty to make reasonable adjustments had been fulfilled. It did not, however, state that it was satisfied that the reasonable adjustments made had fully removed the substantial disadvantage suffered by D (and it is hard to see how it could have so concluded given its own findings about her lack of progress in literacy).
5. I also note at [37] that the Tribunal takes into account as additional support that the RB has provided that it has provided D with software 'as recommended by professionals'. I understand this to be a reference to the Grid3 software which in fact was not adopted for use in class as recommended by professionals until after the claim had been commenced. It was thus in principle irrelevant to whether the RB had complied with its duty to make reasonable adjustments in the period that the Tribunal was supposed to be considering, which was the period prior to the making of the claim.”

Ground D accordingly succeeded.

Upper Tribunal Judge Stout concluded that the Tribunal “materially erred in law” in its determination of the appellants' reasonable adjustments claims.

He said: “Although only two grounds of appeal succeeded, it seems to me for the reasons I have given above that the Tribunal's approach to the reasonable adjustments element of this case was erroneous and that as a result there has been a wholesale failure to determine the claim that was actually made.”

The reasonable adjustments aspect of the claim was remitted for re-determination by a fresh Tribunal.

Lottie Winson