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Neutral Citation Number:	2014 UKUT 520 AAC
Reported Number:
File Number:	HS 3792 2014
Appellant:	PP and SP
Respondent:	Trustees of Leicester Grammar School (SEN)
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	20/11/2014
Date Added:	29/12/2014
Main Category:	Disability discrimination in schools
Main Subcategory:	All
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 22. Disability discrimination in schools – meaning of disability – substantial disadvantage – comparison not to be made with average ability but with person in question’s ability without the disability On 2 October 2013 the appellants made a claim of disability discrimination contrary to the Equality Act 2010 against the school attended by their daughter C, who had been diagnosed with dyslexia and Mears Irfen syndrome (visual stress). C was due to sit GCSE examinations in summer 2014. The appellants had been requesting the school to make various adjustments and made a formal complaint through the school’s procedures, on which a panel ruled later in October 2013, following which the school accepted the provision of some one-to-one tuition, use of coloured papers with enlarged font, the allowance of extra time in school tests and the making of an application to the examination authorities for extra time in GCSE examinations. Nevertheless, the claim was not withdrawn and continued in respect of the alleged failure to make reasonable adjustments in the period of six months preceding 2 October 2013. The First-tier Tribunal (F-tT) rejected the claim on the preliminary point that C was not disabled. Section 6(1) of the 2010 Act provides that a person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Section 212(1) defines “substantial” as meaning “more than minor or trivial”. The F-tT apparently accepted the school’s submission that neither C’s dyslexia nor her visual stress had a substantial adverse effect on her ability to carry out such activities, finding that she was performing well in school or around average in the context of a selective high-performing school. The F-tT also concluded that C was not assisted by paragraph 5(1) of Schedule 1 to the 2010 Act, allowing a substantial adverse effect to be tested by how the person would perform without measures in the form of medical treatment or otherwise to correct the impairment, because of the exception in paragraph 5(3)(a) where the relevant impairment is of the person’s sight and is correctable by spectacles or contact lenses. C had been provided with tinted spectacles, which the F-tT accepted corrected her visual stress although they had no refractive effect, so that the residual effects of visual stress were insignificant. Held, allowing the appeal, that: 1. the F-tT had failed to apply the correct legal test in accordance with the decision of Employment Appeal Tribunal (EAT) in Patterson v Commissioner of Police of the Metropolis [2007] ICR 1522, which requires the effect on the ability to carry out normal day-to-day activities to be assessed by comparing the ability that the person in question actually has with the ability that they would have without the impairment. Alternatively and additionally, even if the F-tT had relied on the correct legal test, it failed to provide any explanation of what the test entailed, to make adequate findings of fact or to give adequate reasons for its decision and why the appellants’ case was rejected (paragraphs 25 to 28); 2. the correct approach to the meaning of “substantial adverse effect” in section 6(1) of the 2010 Act, in the light of section 212(1), is, in accordance with the decision of the EAT in Aderemi v London and South Eastern Railway [2013] ICR 591, that any effect which is more than minor or trivial must be regarded as substantial, without any consideration of the normal range of effects one might expect in a cross-section of the population (paragraphs 34 to 37); 3. paragraph 5(3) of Schedule 1 to the 2010 Act merely has the effect that a person whose impairment of sight is correctable by spectacles or contact lenses cannot take the benefit of any deeming under paragraph 5(1). It does not mean that that impairment is to be disregarded. The question of whether there is or has been a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities must be answered after taking account of whatever assistance could be achieved by using the spectacles or contact lenses. The F-tT did not err in law in finding that C had a visual impairment that was correctable by spectacles and that the residual effects were minor or trivial (paragraphs 29 and 30). The judge set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with his directions.
Decision(s) to Download:	[2015] AACR 22ws.doc