Discrimination - Attention deficit hyperactivity disorder – Local authorities – School exclusions

R (on the application of N) v Independent Appeal Panel of Barking & Dagenham London Borough Council: CA (Civ Div) (Lords Justice Rix, Toulson, Rimer): 24 February 2009

The appellant pupil (N) appealed against the refusal ([2008] EWHC 390 (Admin), (2008) ELR 280) of her application for judicial review of the respondent panel’s decision upholding a decision to permanently exclude her from school.

N suffered from attention deficit hyperactivity disorder and had a statement of special educational needs. She had been excluded on a number of occasions for fixed terms. Her complaint that those exclusions constituted unlawful disability discrimination was upheld by the Special Educational Needs and Disability Tribunal (SENDIST). The school’s decision to permanently exclude her was based on incidents that occurred after the incidents which gave rise to the fixed-term exclusions. The panel did not take into consideration the previous exclusions or the SENDIST decision because it did not consider those matters to be relevant. The panel concluded that N had not been treated less favourably for reasons related to her disability, and that permanent exclusion was the appropriate sanction.

N submitted that: (1) the behaviour for which she had been permanently excluded was simply a continuation of the earlier behaviour which had led to the fixed-term exclusions. Therefore, the panel should have taken as its starting point the SENDIST decision. If the panel differed from SENDIST it was incumbent on it to explain the reasons for that; (2) the panel gave inadequate reasons for rejecting her complaint of unlawful discrimination. The panel had erred in taking as a comparator someone who had behaved in the same way as her but who did not suffer from her disability: the proper comparator was someone who had not behaved as she had. The wording in section 28B(1)(a) of the Disability Discrimination Act 1995 should be construed as it was in Clark v TDG Ltd (t/a Novacold Ltd) [1999] 2 All ER 977 CA (Civ Div), and not as it was by the House of Lords in Malcolm v Lewisham LBC [2008] UKHL 43, (2008) 1 AC 1399, when it considered the same phrase in part III of the act. Discrimination under section 28B had a wider range than discrimination under part III, because section 28B(2) contained the alternative form of discrimination based on failure to make reasonable adjustments.

Held: (1) SENDIST and the panel were separate bodies exercising judicial responsibilities but with different jurisdictions. The panel’s decision in no sense nullified or undermined the decision of SENDIST. None of the authorities relied on by N supported the proposition that the panel was obliged by law to approach the appeal before it in the manner suggested, R (on the application of von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58, (2004) 2 AC 280, A Local Authority v DW [2005] EWHC 162 (Fam), (2005) 2 FLR 508, AA (Somalia) v Secretary of State for the Home Department (2007) EWCA Civ 1040, (2008) Imm AR 241 and Secretary of State for the Home Department v AF (2008) EWCA Civ 117, (2008) 1 WLR 2528 considered. Although there were similarities in the behaviour of N which led to the fixed-term exclusions and the permanent exclusion, the factual matrix in both instances was far from identical. There was no necessary or logical basis for taking SENDIST's decision as a starting point for deciding issues which the panel had to determine and upon which it had heard different evidence.

(2) There was a strong presumption that, where the same formula was used in different parts of the same act, it was intended to bear the same meaning. The reason which caused the House of Lords to overrule the construction adopted by the Court of Appeal in Novacold applied equally to section 28B(1). On the Novacold construction, whenever the reason for a person’s treatment related to his disability he would be logically bound to be able to satisfy the requirement that his treatment was less favourable than treatment that would be accorded to others to whom the reason did not apply, so that the comparative test would not be a test at all, Malcolm applied and Novacold considered. N’s argument about the wider range of discrimination under section 28B did not assist her. The House of Lords in Malcolm had expressed concern that the construction which it felt constrained to adopt gave a narrow meaning to discrimination. However, there was less reason for concern on that issue where there was the alternative form of discrimination under section 28B(2).

(3) (Per Rix LJ) It would perhaps have been wiser for the panel to have considered the SENDIST decision, so that it could confirm that the more recent incidents giving rise to the permanent exclusion were properly to be regarded as being insulated from any behaviour or errors of the previous incidents. However, the panel’s failure to do so did not amount to an error of law such as to vitiate its decision.

Appeal dismissed.

Nigel Giffin QC, Fiona Scolding (instructed by Fisher Meredith) for the appellant; James Goudie QC, Peter Oldham (instructed by in-house ­solicitor) for the respondent.