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Neutral Citation Number:	2010 UKUT 407 AAC
Reported Number:
File Number:	HS 754 2009
Appellant:	AS
Respondent:	Buckinghamshire County Council
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	12/11/2010
Date Added:	01/12/2010
Main Category:	Disability discrimination in schools
Main Subcategory:	All
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 20. Tribunal jurisdiction – disability discrimination – meaning of “admissions” decision The pupil sat the test for admission to a grammar school within the Council’s area, having indicated preferences as to grammar and non-grammar schools. Because he was dyslexic he was allowed an extra ten minutes by a review panel to sit the paper. He was unsuccessful in the test and his mother appealed to the Independent Appeals Panel (IAP) operated by the Council. Following a hearing the IAP rejected the appeal. They accepted that the pupil was disabled for the purposes of the Disability Discrimination Act 1995, but considered that reasonable adjustments had been made for him by providing the extra ten minutes. The mother made a claim to SENDIST (the statutory predecessor to the First-tier Tribunal) contending that the Council had failed to make reasonable adjustments for the child when he took the test. The Council applied for the claim to be struck out on the ground that section 28I of the Act, which would otherwise confer jurisdiction on the tribunal, did not do so because section 28K applied as the claim related to an admissions decision and appeal arrangements had been made under section 94 of the School Standards and Framework Act 1998. That application was refused. When the tribunal heard the case, it declined to revisit the question of jurisdiction, taking the view that it had already been decided in favour of the claimant when the strike-out application was refused. However, it concluded that the child was not a disabled person for the purposes of the 1995 Act. The claimant sought to appeal that decision. The First-tier Tribunal judge gave her permission to appeal to the Upper Tribunal. Before the Upper Tribunal the Council argued that the First-tier Tribunal had been wrong to decline to revisit the issue of jurisdiction and that the First-tier Tribunal did not have jurisdiction to hear the claim. An “admission decision” for the purposes of section 28K is defined in section 94 of the 1998 Act as “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”. Held, setting aside the tribunal’s decision on the Council’s grounds, that: 1. since the power to strike out is to be exercised only in plain and obvious cases, the fact that a given point has failed at that stage does not mean that the same point could not succeed at full hearing, and so the tribunal had erred by treating the refusal to strike out as final (paragraph 14); 2. the language of section 94(1)(a) is relatively widely drawn, suggesting that there may be a variety of decisions caught by the subsection and more than one, if need be, in relation to any pupil, and leaving 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 subsection (paragraph 26); 3. in the present case the effect of the test was 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, and that negative effect was within the wording of section 94(1)(a) as interpreted above (paragraph 26); 4. such a view was consistent with an effective appeal process in such cases, in that it provided for a statutory right of appeal at the stage when what would principally be the live issue, whether a child is eligible for grammar school, could still be addressed, whereas to consider that issue only in the context of an appeal against the naming of a particular non-grammar school later in the process might be too late to be effective, if allocations have by then been made to the various grammar schools (paragraph 26); 5. the Education (Admissions Appeals Arrangements) Regulations 2002 provide that matters to be taken into account by an IAP should include any preference expressed by the appellant and the school’s admission arrangements, but those matters were not irrelevant to an appeal against test outcome since by addressing concerns about the test, the panel is taking account of the expressed preference and it was the admission arrangements for the school which would expressly provide for selection by ability or aptitude (paragraph 31); 6. there was nothing in either the School Admission Code or the School Admission Appeals Code to indicate that section 94 should be read otherwise than as above or that the scope of the IAP was limited by the operation of a local non-statutory review procedure (paragraphs 32 to 36); 7. there was no complaint that the constitution of the IAP in the present case or any aspects of its operation were not in accordance with the 2002 Regulations and there was 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 (paragraph 36); 8. It was the IAP and not SENDIST or its successor, the First-tier Tribunal, which had jurisdiction in the present case. The decision of the IAP had not been challenged and accordingly stood (paragraph 37).
Decision(s) to Download:	[2011] AACR 20ws.doc