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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A, R (on the application of) v Hob Moor Community Primary School [2004] EWHC 2165 (Admin) (14 September 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2165.html Cite as: [2004] EWHC 2165 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
A (R on the application of) |
Claimant |
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-v- |
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Governing Body of Hob Moor Community Primary School |
Defendant |
____________________
The Defendant did not appear and was not represented.
____________________
Crown Copyright ©
MR JUSTICE LEVESON:
"This does not provide our client with an effective remedy. In particular, she would be required to go through the time and inconvenience of a fresh Tribunal (preparation and hearing) faced with the real possibility that the same legal errors will be repeated; and after a substantial further delay ...
"The position also needs to be put into its wider context. Since the Disability Discrimination Act was extended to apply to schools/education some two years ago, the DRC has supported four appeals against SENDIST decisions on similar points. Each has raised, like this one, legal points of significantly wider importance for the SENDIST's determination of the DDA appeals which it now hears. Indeed, if the points did not raise such wider points, the DRC would not fund the cases -- it does so precisely because of their importance in establishing the legal principles in this field in pursuit of its statutory objectives to work towards the elimination of discrimination against disabled persons ...
"In each case the Tribunal has consented to judgment either on a ground which had no wider implications beyond the case and where the error would be unlikely to be repeated in the remitted appeal (such as a ' reasons' challenge), or -- as here -- on the basis that the legal points in issue were 'arguable' (but no more).
"The effect of that approach by the Tribunal is that the issues which need to be resolved arising from the application of the DDA to education go unresolved by the court. Moreover, even if the Tribunal were itself to get the law right, that would not fill the gap because Tribunal decisions are not published in full and, in any event, are not binding precedents. Accordingly, the members of the Tribunal and, more importantly, schools and other education providers, as well as disabled young people and their parents do not benefit from the resolution of various legal uncertainties."
"The Tribunal considers this approach to be flawed. The claimant has been offered exactly the remedy she is seeking; namely for the matter to be remitted back for a further hearing. Indeed, there is no other option or remedy available. Nothing turns on whether the Tribunal is prepared to concede on the basis that there is an 'arguable' point of law, as the same remedy is being afforded to the claimant in any event.
"Moreover, it does not necessarily follow that the Tribunal is effectively 'reserving the right for the second Tribunal to make the same errors'. This is, with respect, misconceived, as there is absolutely nothing to suggest a subsequent Tribunal would make the same error, as would be the case in any statutory appeal or judicial review where a decision is remitted back for re-consideration.
"The Tribunal is of the view that the most appropriate way forward is for the claimant to make any representations concerning what is the correct statutory test, and indeed any of the wider issues it considers appropriate, to the Tribunal itself, at any subsequent re-hearing. This would ensure that this matter can be re-listed by the Tribunal clerks as soon as possible, and the situation in respect of the claimant's child is clarified without further and unnecessary delay. Otherwise, a re-hearing is possible only after the appeal is heard and the Court gives judgment. To this end, the Tribunal is of the view that proceeding with this appeal cannot be considered in the best interests of the claimant, or the child, despite any desire on the part of the DRC to put the position in a wider context or bring a test case."
"7. The DRC has been made aware of another case in which the Tribunal agreed to its decision being quashed but without accepting its illegality, the matter was heard again by a freshly constituted Tribunal panel which repeated some of the legal errors of the first tribunal and the matter is currently the subject of a second appeal to the High Court. Indeed, in that case, the claim to SENDIST was originally submitted in June 2003 and, following a strike-out hearing, an appeal to the High Court and a further strike-out hearing the matter has still not been properly decided by the Tribunal."
"1. Meaning of disability and disabled person.
"(1). Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
"(2). In this Act 'disabled person' means a person who has a disability."
"(1). The Secretary of State may issue guidance about the matters to be taken into account in determining --
"(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or
"(b) whether such an impairment has a long-term; effect."
"A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant."
"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following--
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger."
"The requirement that an adverse effect be substantial reflects the general understanding of 'disability' as a limitation going beyond the normal differences in ability which may exist among people. A ' substantial' effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A 'substantial' effect is one which is more than ' minor' or 'trivial'."
"This covers the ability to control urination and/or defecation. Account should be taken of the frequency and extent of the loss of control and the age of the individual.
"Examples.
"It would be reasonable to regard as having a substantial adverse effect: even infrequent loss of control of the bowels; loss of control of the bladder while asleep at least once a month; frequent minor faecal incontinence or frequent minor leakage from the bladder.
"It would not be reasonable to regard as having a substantial adverse effect: infrequent loss of control of the bladder while asleep; infrequent minor leakage from the bladder."
"There is no statutory definition of 'impairment' and nothing in the Act or Guidance which requires that the task of ascertaining whether there is a physical impairment involves any rigid distinctions between an ongoing fault, short-coming or defect of or in the body on the one hand, and evidence of the manifestation of the effects thereof on the other. The Act contemplates that impairment can be something that results from an illness as opposed to itself being an illness. It can thus be cause or effect. In the present case, therefore, it was appropriate, and not simplistic for the tribunal to ask itself whether there was evidence before it on which it could hold, directly or by inference, that there was something wrong with the applicant physically, something wrong with her body."
"For the purposes of the Act where a child under six years of age has an impairment which does not have an effect falling within paragraph 4(1) of Schedule 1 to the Act that impairment is to be taken to have a substantial and long-term adverse effect on the ability of that child to carry out normal day-to-day activities where it would normally have a substantial and long-term adverse effect on the ability of a person aged 6 years or over to carry out normal day-to-day activities."
"What the Act is concerned with is an impairment on the person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts ... The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do."
"It clearly is something more than a minor or trivial effect and A may well have the condition in her early years ... However it is not clear that it has an impact on A's normal day-to-day activities."
"[A's mother] also asserts that A is disabled because she has a global developmental delay, that being a mental impairment which has a substantially adverse effect on A's ability to carry out her normal day-to-day activities, in particular it causes an incontinence problem."
"The first question that we considered was whether not withstanding a diagnosis of mild global developmental delay the difficulty was sufficiently substantial to bring A within the description of a disabled person as set out in the Act. In this context we have looked particularly at the evidence concerning A's level of functioning. The nursery carried out a detailed assessment of A both when she started and this continued during her stay in the nursery. There was also an IEP for her. An important meeting was held at school on 12th February 2003 this included a review of A's progress. Mrs Hornby, the foundation stage co-ordinator described A as having made a lot of progress such as being at the 'Blue' stage of 'Stepping Stones Foundation Stage Assessment Profile'. This placed her on a level with other children in her group. A detailed note on A's progress dated 12th February 2003 set out in some detail the various skills that A had acquired in relation to such matters as literacy, numeracy, etc. These skills did not in our view suggest that A had substantial difficulties and this was also supported by the LEA Educational Psychologist, Mr Mills. We did take into account the report submitted by the Occupational Therapist, Jules Hunter in which she gave examples of what she considered to be A's developmental delay. However we do not consider that they demonstrate severe impairment of intelligence and social functioning. Further that we preferred the evidence of school based staff who had more regular contact with A. Therefore we conclude that in this regard A does not meet the definition of a disabled person set out in Section 1 of the Act."
"(1) 'Whether not withstanding a diagnosis of mild global developmental delay the difficulty was sufficiently substantial to bring A within the description of a disabled person as set out in the Act.'
"(2) Whether A's 'skills, 'suggest that A had substantial difficulties'.
"(3) Whether the evidence 'demonstrate[s] severe impairment of intelligence and social functioning'."