Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The parents’ appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal sitting at Leicester on 18 March 2014 involved an error on a point of law and is set aside. The case is remitted to a First-tier Tribunal within the Health, Education and Social Care Chamber for reconsideration in accordance with the directions given in paragraph 39 below and any further procedural directions that may be made by a judge of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

 

 

REASONS FOR DECISION

 

1. This is an appeal, with permission given by Upper Tribunal Judge West on 8 August 2014, by the parents of a girl I shall call C (now aged 16), against the decision of the First-tier Tribunal dismissing their claim that the governing body of the grammar school attended by her (the “responsible body”) had discriminated against her because of her disability contrary to the Equality Act 2010. The claim was dismissed on the determination of the preliminary issue whether or not C was disabled within the meaning of section 6 of and Schedule 1 to the 2010 Act.

 

2. Both the responsible body and the parents have put in extensive written submissions. Following the completion of the round of submissions on 5 November 2014 there would, because of his pattern of sitting, have been undue delay if the case had been retained by Judge West. Accordingly, the appeal has been transferred to me for decision.

 

3. Neither party has requested an oral hearing in the Upper Tribunal. On the view that I take of the case, I am satisfied that the appeal can properly be decided without an oral hearing at this level. I am also satisfied, for reasons explained below, that it would not be proper for the Upper Tribunal to substitute a determination on the preliminary issue of disabled or not. Since that issue, and potentially the further issues arising if that issue is determined in the parents’ favour, will (unless the parents withdraw their case with the consent of the tribunal) have to be reconsidered afresh by a new First-tier Tribunal and there remain a good number of disputes of fact between the parties (as well as, I think, some ill-feeling), I attempt below to say as little as possible about those disputes and the evidence in question beyond what is necessary to explain where I find the tribunal of 18 March 2014 to have gone wrong in law. I must not be taken to have said anything intended to fetter or steer the members of the new tribunal in their evaluation of the evidence, within the bounds of the directions of law below.

 

4. I also note at the outset that, since this decision (minus the front-sheet naming the parties) is as such available to any member of the public, and will be put on the Administrative Appeals Chamber’s website, I have not named the parents or C in the body of the decision.

 

 

The claim

5. The disability discrimination claim form with a covering letter was apparently received by the First-tier Tribunal (SEND) administration on 2 October 2013. The covering letter said that a complaint panel hearing was awaited, but that the claim had to be made to the tribunal in advance of the outcome because of the timescales involved and an expedited hearing was requested. C was due to sit GCSE examinations in summer 2014 and one of the reasonable adjustments being requested involved applications by the school to the examination boards to modify the format of question papers and for extra time. The deadline for application was early in 2014 and the earlier the application the better. C was stated to be affected by dyslexia and Mears Irlen syndrome (now often called visual stress). I come back to the details below. For the moment it is enough to note that an assessment of C was carried out on 16 November 2011 by Ms Melissa Preece of the Dyslexia Association, which for the first time diagnosed dyslexia. The conclusion in the summary of findings in her report included the following:

 

“[C] is a very able student who is underperforming in some key literacy skill areas. She has strengths in many skills, but also some definite weaknesses. This pattern of strengths and weaknesses is typically found in dyslexia. The degree to which this affects [C] is mild.

[C’s] dyslexia means that she will find it difficult to access fluently and easily at an ability appropriate level. This will affect reading comprehension, especially where complex text is involved or where there are time constraints. It is possible also that she may experience difficulties in foreign language learning; organising and writing complex written assignments to a tight time schedule; understanding and using maths symbols; and difficulty in accurately proofreading her work.”

 

After listing some more specific strengths and weaknesses, the report made a number of recommendations for the school (including considering exam access arrangements and strategies to improve reading comfort, such use of buff or pastel-coloured paper and of dyslexia-friendly handouts). The report was passed on to the school. C also saw an optometrist in January 2012 to assess the usefulness of coloured overlays, followed by a prescription of precision-tinted spectacles. The optometrist’s report in September 2013 was part of the material before the complaints panel.

 

6. In the box on the claim form headed “Putting things right”, asking what the parents would like the tribunal to do if the decision went in their favour, this was written:

 

“[C] requests blue coloured paper with 16 Arial font for her school notes, exams & public exams, extra time in exams if she is entitled, these adjustments be made within school & the appropriate applications to the examination boards within the time frames before 31 January 2014 for modified paper & before 21 March 2014 for extra time to be made by school. A standard modified paper could be considered. [C] needs working practice of all adjustments within school before her major exams and preferably in her mocks. School to review policies/training re disability.”

 

7. The report of the panel under the school’s own complaints procedure was issued on 19 October 2013. It made a number of recommendations, including the following:

 

“The recommendations of the Dyslexia Association report and the actions taken: the Panel recommends that, despite there being no objective way of measuring whether [C] benefits from coloured paper when wearing her precision tinted lenses, there is a subjective improvement and the provision of coloured paper and text in a particular font should be used. The Panel also recommends that the issue with the application for extra time in public examinations should be dealt with proactively and immediately. Consideration should be given to submitting the evidence which is currently available and letting JCQ [the Joint Council for Qualifications] inform both the parents and the School if any further request or assessments are required.

The quality of the teaching provision: the Panel recommends that there needs to be a better operational management of the actions and communication within the School when a report is submitted to the School which states a newly diagnosed special educational need such as dyslexia. The process of writing and reviewing IEPs also needs improvement.

Equality of education: the Panel recommends that the disagreement over the definition of ‘substantial disadvantage’ should be reviewed by both parties. Unfortunately, the only absolute way to settle this would be by testing the definition through legal proceedings which would be upsetting for all concerned and expensive for both sides. The Panel feels this issue needs both sides to consider reaching a middle ground. The provision of coloured paper, text printed in an acceptable font and the provision of 1 to 1 tuition of at least 1 hour a week is achievable. The Panel recommends that both parties consider these courses of action as appropriate. The need to define [C] as having a disability from a legal point of view can then be considered less important and the distressing move to a Tribunal can be avoided.”

 

8. A letter to the parents from Mr King, the Headmaster of the school, dated 12 November 2013, stated that the school had implemented or taken steps to implement each of the Panel’s recommendations. He said that the school had started a full internal review of its operational management on the issue identified. One hour’s one-to-one tuition from the school’s specialist learning support teacher had been agreed, a successful application had been made to the Assessment Agency for papers to be printed on coloured paper with enlarged font and instructions given about the use of coloured papers and fonts in school and on extra time for school examinations.

 

9. There was for a time a prospect that the claim to the tribunal might be withdrawn, but that fell through for reasons that I need not explore. Following complex correspondence and a series of telephone case management hearings, Tribunal Judge Brayne in an order dated 13 February 2014 recorded that, if the tribunal found that C was disabled within the meaning of the legislation, the issues to be determined would be whether between April and October 2013 the responsible body had failed to implement the adjustments advised by the Dyslexia Association and the optometrist and whether there had been a refusal in that period to make an application to the examination board for examination adjustments.

 

10. The responsible body’s position in its amended response date 4 March 2014, and drafted by Mr Andrew Sharland of counsel, on those issues was that C was not disabled and that the school had not failed to make any reasonable adjustments in the period of six months prior to the claim.

 

The relevant legislation

11. Since the tribunal of 18 March 2014 decided against the parents on the first issue, I need only set out the provisions of the Equality Act 2010 defining “disability”, which is a protected characteristic under section 4. Section 6(1) provides:

 

“(1) A person (P) has a disability if—

(a)              P has a physical or mental impairment, and

(b)             the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

 

Section 212(1) defines “substantial” as meaning “more than minor or trivial”.

 

12. Paragraph 5 of Schedule 1 to the Act, brought into operation via section 6(6), provides:

 

Effect of medical treatment

5. (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—

 (a) measures are being taken to correct it, and

 (b) but for that, it would be likely to have that effect.

 (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

 (3) Sub-paragraph (1) does not apply—

 (a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

 (b) in relation to such other impairments as may be prescribed, in such circumstances as may be prescribed.”

 

No regulations have been made under sub-paragraph (3)(a) or (b), so that the exception in head (a) applies only to impairments correctable by spectacles or contact lenses.

 

13. Guidance has been issued by the Secretary of State on matters to be taken into account in determining questions relating to the definition of disability under the Equality Act 2010, as allowed by section 6(5). Paragraph 12 of Schedule 1 requires any “adjudicating body”, ie including a court or tribunal, to “take account of such guidance as it thinks is relevant”. Paragraph B1, under the heading “Meaning of substantial adverse effect” is as follows:

 

“The requirement that an adverse effect on normal day-to-day activities should be a substantial one 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 one that is more than a minor or trivial effect. This is stated in the Act at S212(1). This section looks in more detail at what ‘substantial’ means. It should be read in conjunction with Section D which considers what is meant by ‘normal day-to-day activities’.”

 

Paragraphs B2 and B3 on the time taken to carry out an activity and the way in which an activity is carried are as follows (omitting the examples given):

 

“B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.

B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment.”

 

The First-tier Tribunal’s decision

14. The parents and C attended the hearing on 18 March 2014 and gave evidence. The responsible body was represented by Mr Sharland and the Headmaster and Mr Griffin, the teacher in charge of learning support, gave evidence. The submissions made focused on the issue of whether C was disabled, as did the taking of evidence. The tribunal considered that the parents might not have a full understanding of that issue and that they ought in fairness to be given the opportunity to take legal advice. The hearing was adjourned and the tribunal directed that no later than 11 April 2014 the parents (or any representative) were to send any further submissions in writing to the tribunal and to the responsible body. The parents were asked to note that evidence had been heard and that it was likely that any further submissions could satisfactorily be made in writing. In the event the parents put in a substantial written submission on the whole case, including various new pieces of documentary evidence. The responsible body was given the opportunity to respond, which it did in the document dated 8 May 2014, again drafted by Mr Sharland.

 

15. Since that document represented the most developed statement of the responsible body’s arguments to the tribunal, it is helpful to set out some parts of it in full. I do not need to enter into the complaints that the parents’ production of new evidence was inconsistent with the tribunal’s directions on adjournment (which in my view needed to have been rather more specific to restrict them in that way) and that they were not entitled to rely on impairments, such as pain on writing and trouble with time, that had not been mentioned in the claim. I can concentrate on impairments in the form of dyslexia and Mears Irlen syndrome.

 

16. On the former, Mr Sharland wrote this:

 

“9. In relation to [C’s] mild dyslexia there is the November 2011 Dyslexia Association (‘DA’) report. The School accepts that such mild dyslexia is a ‘mental impairment’ for the purposes of section 6(1) Equality Act 2010. However, the School does not accept that [C’s] mild dyslexia has a substantial adverse effect on her ability to carry out normal day-to-day activities including studying and taking exams.

 10. ‘Substantial’ in this context means more than a minor or trivial effect, see s 212(1) Equality Act 2010. The School accepts that dyslexia, depending on its severity, may amount to a disability for the purposes of s 6(1) Equality Act 2010 but the effect of [C’s] mild dyslexia is not sufficiently severe to meet the definition: the School contends that the effects of [C’s] mild dyslexia are not substantial because they are not limitations that go beyond the normal differences in ability which may exist among people. Indeed, this was accepted by the Claimant who, unlike her parents, gave a clear and unbiased account of her weaknesses and strengths. In her oral evidence to the Tribunal, [C] accepted that her abilities were in line with her contemporaries (see to similar effect, Mr King’s witness statement paragraphs 15 – 22 [D303 – 304] and Mr Griffin’s evidence at paragraphs 22 – 33 [D315 – 316]. As explained in Mr King’s witness statement at paragraphs 4 – 6 [D301 – 3012], the intake at Leicester Grammar School is atypical: it selects on the ground of academic ability and obtains very high GCSE results.

 11. In the population at large there will be differences in ability to concentrate, read etc. In order to be substantial, the effect must fall ‘outwith the normal range of effects that one might expect from a cross-section of the population’, see Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522, para 27 per Elias P. It is clear from the uncontested evidence before the Tribunal that [C’s] abilities are not outwith the normal range. [C’s] mild dyslexia does not have a substantial adverse effect. Indeed, [C’s] evidence was that her failure to perform well in her recent exams was a result of her failure to revise sufficiently rather than any mental impairment.”

 

The submission then went on to more detailed arguments from comparative exam results and the criteria for extra time in public examinations. I interpose at this point that in their submissions the parents had also relied on the decision in Paterson.

 

17. On Meares Irlen syndrome, Mr Sharland wrote this, after stating that the school had not been aware of a diagnosis of this condition during the relevant time:

 

“16. The School does not accept that Meares Irlen Syndrome has a substantial adverse effect on [C’s] ability to carry out normal day-to-day activities including taking exams. However, if, contrary to the School’s primary submission it does have such an effect, this impairment is ‘an impairment of [C’s] sight’ and is correctable ‘by spectacles’ namely the tinted glasses that [C] wears to overcome this impairment, see paragraph 5 of Schedule 1 Equality Act 2010 set out above. As such it must be disregarded for the purposes of considering whether [C] is disabled.

 17. [The parents] appear to assert in their written representations that paragraph 5 is not applicable because Meares Irlen Syndrome/Visual Stress is not ‘an impairment of a person’s sight’ or that such an impairment is not ‘correctable by spectacles’. Both of these arguments are misconceived.

 18. Firstly, Meares Irlen Syndrome/Visual Stress is an ‘impairment of a person’s sight’. The name ‘Visual Stress’ clearly suggests that the impairment concern’s [C’s] sight rather than anything else. Visual Stress causes ‘blurring’ which clearly is an impairment of the user’s sight. [The parents] seek to contend (at paragraph 10 of their recent written submissions) that Visual Stress is not an ‘impairment of a person’s sight’ because it is not due to any defect in sight or visual function but rather due to the processing of visual information which occurs in the brain.’ This submission is based on inadmissible evidence. However, even if such evidence were to be admitted it does not assist. Paragraph 5 of Schedule 1 refers to an ‘impairment of a person’s sight’. Such an impairment may arise from problems/defects with, inter alia, the eye, the optic nerve or the brain. There is nothing in the phrase ‘impairment of a person’s sight’ that limits it to problems/defects with the eye.

 19. It is clear that Parliament did not wish to limit this exception to short-sightedness and long-sightedness that can be corrected by spectacles and/or contact lenses. If it had so wished to limit it, different words would have been used. Similarly, if Parliament had wished to limit the definition to impairments of sight arising from eye defects it could have done so but it chose, for whatever reason, not to do so. The tinted spectacles relieve [C] of the symptoms of Visual Stress in the same way as normal spectacles relieve the wearer of the symptoms of short or long-sightedness.

 20. Further, the Visual Stress is corrected by spectacles. ‘Spectacles’ is not defined in the Equality Act 2010 but it is an everyday word that should be given its ordinary meaning. Its ordinary meaning clearly includes the tinted glasses used by [C]. Glasses and Spectacles are synonyms. The fact that [C’s] glasses correct by virtue of the colour of the lens is neither here nor there. The definition of ‘spectacles’ draws no such distinctions. C’s tinted spectacles correct the impairment (visual stress): Ms Farmilo’s report of 18 September 2013 [B 37] notes that prescribed tinted lenses were ‘very helpful’. This clearly amounts to a correction. It is not necessary for the spectacles to totally cure any impairment. Standard spectacles do not achieve such a result – the person remains long or short-sighted. Depending on an individual’s prescription, standard spectacles may not necessarily entirely cure any impairment but they still correct such an impairment if they reduce the adverse effects. Further, the evidence is that when [C] wears the tinted spectacles (which unfortunately is rarely), they do cure her problems.”

 

18. As mentioned above, the tribunal of 18 March 2014 dismissed the parents’ claim. In paragraph 19 of the decision, in summarising the parents’ submissions, it mentioned the decision in Paterson as considering the effects of mild dyslexia in relation to a high pressure examination and a finding that a promotion examination was a normal day-to-day activity. In its conclusions with reasons, after stating its view that pain in handwriting, poor pen grip and time management were not freestanding mental or physical impairments but might be symptoms of other difficulties, it continued:

 

“28. The evidence shows that [C’s] performance in class is good; this was acknowledged by [the parents]. This is within the context of a selective high performing school. [The parents] assert she has difficulties in the activity of taking examinations. Assertions they made about the effort that she [has] to make for reading and concentration contrast with the evidence that in class she copes. From [C’s] own evidence we find the use of spectacles has clearly assisted her, should she choose to wear them.

 29. [C’s] examination results do not indicate particular difficulties. For instance, we note her recent performance in mock examinations, December 2013 set out in Mr Griffin’s statement (D303) and her grades in summer examinations in June 2013 without extra time. We find that she performs around average.

 30. [The parents] referred to consequent effects of [C’s] difficulties including headaches, loss of energy, hunger and exhaustion. At the hearing [C] mentioned that her arm aches when she has to do a lot of writing. We note she is performing well in a very demanding school and from her own evidence that in years 10 and 11 she caught up from years 8 and 9. We do not find reports of [C’s] tiredness and exhaustion atypical in the context of the intensive educational environment [in which] she has been placed. Leicester Grammar is clearly a competitive school where pupils are expected to achieve high standards.”

 

On the specific issue of the effect of paragraph 5 of Schedule 1 to the 2010 Act, the decision said this:

 

“31. Mr Sharland’s submissions on behalf of the Responsible Body are comprehensive. We accept those submissions; we cannot find on the plain words of the statutory provision nor decided authority to distinguish between different forms of spectacles. Dictionary definitions of spectacles refer to eye glasses with a method to keep them on the face. It is nowhere stated that lens are limited to those with a refractive effect only. For the reasons above we find any residual effect of visual stress/Meares Irlen to be insignificant in the context either of school work, school examinations or other day to day activities.”

 

The appeal to the Upper Tribunal

19. When giving the parents permission to appeal to the Upper Tribunal on 8 August 2014 Judge West posed a number of questions that he considered arguable, including the following:

 

“1. Did the First-tier Tribunal deal adequately with the decision in Paterson v Commissioner of Police of the Metropolis [[2007] ICR 1522], to which it referred in paragraph 19 of its decision in the context of the parents’ submissions, but not at all in its own conclusions in paragraphs 24 – 33?

 

 2. Did the First-tier Tribunal misdirect itself as to the proper approach to the meaning of disability in section 6(1) of the [2010 Act]? [Judge West then referred to paragraphs 22 and 29 of the tribunal’s decision and to the responsible body’s submission relying on paragraph 27 of Paterson and continued] However, what paragraph 27 says in full, with reference to the relevant statutory guidance, is that

 

‘In our judgment A1 [the predecessor of B1 of the 2010 Act Guidance] is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. As A2 and A3 make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.”

 

And in paragraph 68 Elias P said that

 

“More fundamentally, in our view Ms Padfield’s [counsel for the Commissioner’s] approach to establishing whether the disadvantage was substantial is misconceived. In our judgment the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross section of the population, then the effects are substantial.”

In those circumstances has the First-tier Tribunal used the appropriate comparator, viz. comparing how the individual in fact carries out the activity compared with how she would if she were not suffering the impairment, or has it compared (or purported to compare) the individual with the population at large?

 

3. The child is now entitled to 25% extra time in timed tests and examinations, although it is not said that her condition has deteriorated since November 2013 so as to justify that adjustment only prospectively. In that event has the First-tier Tribunal dealt properly with paragraphs 35 and 69 of the judgment in Paterson in which Elias P said

 

’35. Mr Laddie [counsel for Mr Paterson] recognises that the Act is complex and technical, but submits that the conclusion of the Tribunal is so bizarre that it must betray an error of law. The Tribunal has lost the wood for the trees. Someone who, as the employer has conceded in the light of Dr Biddulph’s report, needs 25% additional time for completion of the promotion assessment in order to compete for promotion must be disabled within the meaning of s1 of the [Disability Discrimination Act 1995]. To conclude otherwise fundamentally undermines the Act’s intended field of protection.

 

 69. It follows that this ground of appeal [misdirection by the Tribunal] succeeds. Once the Tribunal had accepted that the appellant was disadvantaged to the extent of requiring 25% extra time to do the assessment, which is what Dr Biddulph considered appropriate, then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities.’?

 

4. Has the First-tier Tribunal dealt correctly with the issue of whether Meares Irlen Syndrome/visual stress falls within the exception in sub-paragraph (3) of Schedule 1, paragraph 5 of the Equality Act 2010 as an ‘impairment of a person’s sight’ if the condition is not due to any deficit in sight or visual function but rather to the processing of visual information which occurs in the brain?”

 

20. Mr Sharland’s submission of 11 September 2014 on behalf of the responsible body enclosed a number of documents that had been before the First-tier Tribunal and also, in the course of dealing with the points of law raised by Judge West, entered into quite a bit of discussion of the evidence in the attempt to support the tribunal’s conclusions. Some at least of that may have been justified in dealing with points of law as such, but inevitably it encouraged the parents to reply in kind, especially as by then Tribunal Judge Bennett’s notes of evidence had become part of the papers. Their 63-page reply of 5 November 2014 contained detailed dissections of the evidence as well as of the arguments made by the school at various stages, so that the focus on whether and if so where the tribunal of 18 March 2014 had gone wrong in law was somewhat lost. In the final paragraphs on remedies, the parents argued that, in the interests of C and others, a decision should be made on whether there was discrimination or a refusal to implement reasonable adjustments in the period before the claim, in effect as a judgment on the school’s policies and practices at the time, and a formal apology. I see no need to give the responsible body any further opportunity to comment. It has already made its case perfectly clear. With due respect to the amount of thought and effort put into those submissions on both sides (much of which will be relevant on any rehearing), I am not going to attempt even to summarise all the strands of the arguments. I shall simply refer to particular elements of them as necessary when discussing the points of law raised by Judge West.

 

Did the First-tier Tribunal deal adequately with Paterson and apply the correct test?

21. It is convenient to cover these two grounds together, as Mr Sharland did in his submission of 11 September 2014. The basis must be an examination of just what the decision of the Employment Appeal Tribunal (EAT) in Paterson stands for, particularly in the slightly changed context of the Equality Act 2010 rather than the Disability Discrimination Act 1995.

 

22. Mr Paterson had been a police officer since 1983, rising to the rank of chief inspector in 1999. In the course of his career he had dealt with a vast amount of paperwork and had taken several examinations. He had performed various managerial functions and been commended for the clarity and quality of his reports. In 2004 he discovered that he was dyslexic. In his claim he alleged that he had been discriminated against because of that disability and that his employers had failed to make reasonable adjustments, in particular in the selection process for the rank of superintendent. An employment tribunal (ET) dismissed his claim. It had directed itself that the correct “comparator” assessment under what was then section 1 of the Disability Discrimination Act 1995 (with in essence the same test as in section 6(1) of the 2010 Act) was “with the ordinary average norm of the population as a whole”. It had accepted a report from an expert that had recommended that Mr Paterson be allowed 25% extra time at each stage of the promotion process. The EAT said that a fair representation of the ET’s reasoning was as follows:

 

“In so far as Mr Paterson was claiming that he had been substantially disadvantaged in day-to-day activities, there was no substantial disadvantage. Any adverse effects of his impairment were minor. There was a substantial disadvantage with respect to carrying out the promotion examination, but that was not a day-to-day activity. Furthermore, although Mr Paterson was disadvantaged when compared to his non-dyslexic colleagues, he was not disadvantaged with reference to the ‘ordinary average norm of the population as a whole’.”

 

23. The EAT allowed Mr Paterson’s appeal and substituted a decision that he was a disabled person. The employer had sought to argue that the ET had made the correct comparison in law with members of the population at large. That argument was rejected as misconceived in what Elias P described as “a simple summary of our conclusion” which was expanded in dealing with the specific grounds of appeal (paragraph 39). Rather, the comparison was to be between what the individual can do and would be able to do without the impairment. That was the central element in the EAT’s reasoning. I do not in the circumstances of the present case need to go into the detail of the EAT’s findings in paragraphs 66 and 67 that carrying out an assessment or examination could properly be described as a normal day-to-day activity. That was partly in the context of the EAT’s overall approach that in the employment context where it was not disputed that an employee is suffering a substantial disadvantage because of the effects of disability in promotion procedures or other aspects of participation on professional life (as shown in the case in question by acceptance of the need for 25% extra time) it had to be concluded, in order to give effect to the purposes of the legislation, that there was a more than trivial effect on the ability to carry out normal day-to-day activities (see paragraphs 38, 66 and 67). The school context is different, but on the other hand, assessments, tests, assignments, examinations etc are very much part of normal day-to-day activities for school students. And the alternative approach suggested in Paterson might have validity: of regarding the ability in question to be reading and comprehension generally, normally a part of normal day-to day activities for everyone, regardless of the particular task in which that ability is actually or might be employed.

 

24. I confess to finding what Elias P said about determining whether the adverse effect of an impairment on the ability to carry out normal day-to-day activities was substantial rather confusing, perhaps reflecting some incoherence in the Guidance both at the time and continued into the current Guidance on the 2010 Act. On the one hand, he suggested at points (eg paragraph 38) that an effect that was more than trivial would do, but on the other hand in paragraphs 27 and 68 (see paragraph 19 above) he suggested that the effect would have to be outwith the normal range of effects one might expect from a cross-section of the population, echoing the words of what is now paragraph B1 of the Guidance. I simply do not understand how the latter proposition can stand with the operation of the central element of the EAT’s reasoning when it is a commonplace that there are vast variations within the population in abilities to carry out day-to-day activities, especially when looking at something like reading and comprehension. Nor do I see how it can stand with the result in Paterson. Although Mr Paterson was found to be at a substantial disadvantage in the promotion procedures for high ranks within the police force, it could scarcely be said (especially given his achievements prior to that process) that the difference between what he could actually do and what he could have done without the impairment was more than the differences to be expected within a cross-section of the population. Yet the EAT decided that he was a disabled person. I would be inclined to conclude that Paterson is not to be read as endorsing Elias P’s second proposition. However, I do not have to decide the point in order to determine whether the tribunal of 18 March 2014 went wrong in law and, so far as directions to a new tribunal go, account must be taken of the effect of the 2010 Act and some subsequent case-law (see paragraphs 34 to 37 below).

 

25. In my judgment, the tribunal of 18 March 2014, not having expressly set out the test it was applying as to substantial effect (the existence of an impairment and the long-term nature of any effects not being in dispute), showed in its reasons, especially in paragraphs 28 and 29, that it was assessing the extent the effect on C’s ability to carry out normal day-to-day activities by reference to an average. Even if that was not “the ordinary average norm of the population as a whole”, as in Paterson at ET level, but was an average of the abilities of C’s highly selected and hard-working classmates in the school, the test being applied was still not to look at the difference between how C in fact carried out the day-to-day activities affected and how she would have carried them out if not impaired by dyslexia and associated conditions. There was still the same fundamental error of law as identified in Paterson .

 

26. Mr Sharland has attempted to defend the tribunal’s decision as having applied the correct comparator by reference to what was said in paragraph 29 of the decision about the two sets of examination performances (paragraphs 14 to 18 of the submission of 11 September 2014). He argues that that showed that the tribunal was carrying out a comparison between how C had done in examinations without extra time allowed and how she had done when the extra time was allowed and, further, by an analysis of the results and reference to C’s evidence to the tribunal, that there was no real difference. The parents have challenged Mr Sharland’s analysis of the results and drawn attention to other circumstances in place at the time of the two sets of examinations (eg tinted spectacles used in June 2013). However, leaving that aside, it must be noted that Mr Sharland’s analysis of the evidence is not what was expressed by the tribunal. It had opened paragraph 28 by finding that C’s performance in class was good, in the context of a selective high-performing school. Then although the opening of paragraph 29 (examination results did not indicate particular difficulties) might be said to be neutral, the conclusion after the reference to the two sets of examinations was “we find that she performs around average”. The force of that sentence cannot in my judgment be avoided. It points decisively towards the application of the wrong test and a misdirection in law.

 

27. Such a misdirection in law on the fundamental point in issue is enough to require the setting aside of the decision of the tribunal of 18 March 2014. Despite Mr Sharland’s attempts, it cannot possibly be said that on all the evidence before the tribunal the only conclusion open to it was that C did not meet the definition of disability in section 6(1) of the 2010 Act.

 

28. If I am wrong in my conclusion on that misdirection, the tribunal would still have erred in law in the ways briefly described below. For this purpose I assume that the tribunal had applied essentially the right test in accordance with Paterson, that the parents had been arguing for and the responsible body had at that point been opposing. Then, in order for the tribunal to explain adequately to the parents why their claim had failed, there needed to be some explicit explanation of what that test entailed. That is particularly in the light of what above I have found to be confusing elements in Elias P’s judgment. If the tribunal had been taking the view that there was an adverse effect on C’s ability to carry out normal day-to-day activities comparing the activities she did carry out with what she could have done without her impairment, but the effect was not substantial because it was within the normal range of variation within the population, that reasoning needed to be spelled out carefully by explicit reference to what was decided in Paterson. Thus, even if that was the right approach to the meaning of “substantial” in 2014 (which I reject in paragraphs 34 to 37 below), the tribunal failed to give reasons that encompassed those points. Allied to that, it does seem to me that, in view of the considerable body of conflicting evidence before the tribunal, some of which was referred to and some not, the findings of fact embodied in paragraphs 28 to 30 of the decision were much too limited to form an adequate basis for the tribunal’s conclusions or for the parents to understand why their claim had failed. Those are additional reasons for setting the tribunal’s decision aside.

 

The meaning and effect of paragraph 5 of Schedule 1 to the Equality Act 2010

29. Although I have already concluded that the decision of the tribunal of 18 March 2014 must be set aside, in order to give useful guidance to any new tribunal on a rehearing I need to rule on the conflicting views on this issue. My conclusion is that the tribunal did not go wrong in law in this respect, although I do not find the matter quite as straightforward as it did. The provision is set out in paragraph 12 above.

 

30. It is not necessary, and it would not be right without having invited comments from the parties, to examine all the possible difficulties that could arise under paragraph 5. For instance, although the heading is “Effect of medical treatment”, the provision plainly by its terms extends beyond medical treatment and there is scope for doubt about when measures operate to “treat” or “correct” an impairment so as to trigger the deeming in sub-paragraph (1). The is, though, nothing to suggest that the words have any special or narrow meaning (so that Baroness Hale in Boyle v SCA Packaging Ltd [2009] UKHL 37; [2009] ICLR 1056, at 1070, apparently considered that the use of a guide dog by a blind person would be covered). Instead, I concentrate on the exception in sub-paragraph (3). In my judgment, the reference to impairment of a person’s sight must be a reference to anything that entails the bodily function of sight not operating at full power, whether the defect is in the mechanical processes of the reception of light within the eye itself, in the optic nerve or in the processing of information in the brain. Indeed, it could be said that we do not “see” anything until the brain processes the information received. Although the optics of the eye create an image of the visual world on the retina, until the resulting neural signals are transmitted through the optic nerve to the brain and processed there we do not perceive that image. I cannot believe that a person who suffered a brain injury or some congenital problem in the brain interfering with that processing would not in the ordinary use of language be described as having an impairment of sight. Although in some contexts the concept of a defect of sight might have a narrower meaning (as shown by the evidence and arguments put forward by the parents), in my view the ordinary and natural meaning is as above and there is nothing in the context of paragraph 5 to indicate that that meaning was not intended.

 

31. The crucial question then is what sorts of impairments of sight are “correctable” by spectacles or contact lenses. In a sentence mentioning spectacles and contact lenses, the central meaning would obviously point to impairments where corrections to focus are achieved by different lenses. And the main purpose of the exception was no doubt to exclude the millions of people who are prescribed spectacles or contact lenses of that kind, who would not in general be regarded or regard themselves as disabled,  from the scope of the legislation (as also noted by Baroness Hale in Boyle, although her reference to “poor eyesight which is correctable by spectacles or contact lenses” in what was merely a general introductory passage cannot be taken as any kind of authoritative interpretation). But that does not exclude a wider meaning and sub-paragraph (3) must be looked at in the context of paragraph 5 as a whole as well as in the context of whole Act. Sub-paragraph (1) uses the notion of measures to correct an impairment in a much broader way, encompassing many measures taken to counter the effects of an impairment. In my judgment, although it would have been much better if the intended scope of sub-paragraph (3) had been made clearer in its drafting, “correctable” is to be interpreted in that wider sense, going beyond the narrower, technical meaning contended for by the parents. I conclude that the tribunal of 18 March 2014 did not err in law in finding that the precision-tinted spectacles prescribed for C fell within paragraph 5(3).

 

32. It is particularly important to record that the tribunal went on to give effect to paragraph 5 in the correct way, in contrast to the way in which Mr Sharland had put things in paragraph 16 of his submission of 8 May 2014 (paragraph 17 above). Paragraph 5(3) of Schedule 1 merely has the effect that the person cannot take the benefit of any deeming under sub-paragraph (1). It does not mean that the impairment of sight giving rise to the need for correction is to be “disregarded”. The person still has the impairment, but the question of whether there is or was a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities must be answered after taking account of whatever assistance was achievable by the correction by spectacles or contact lenses. The tribunal was therefore right to ask itself whether any “residual effects” of visual stress/Meares Irlen syndrome (ie after taking account of the assistance achieved when C wore the tinted spectacles) had those effects. It concluded that any such residual effects were insignificant. Ideally, it should have said something more about what it found those residual effects to be in the light of the parents’ arguments and evidence about how C used and needed to use the spectacles. Ideally also it should have considered whether aggregating those residual effects with the effects of the dyslexia on its own produced a substantial effect, but perhaps the use of the word “insignificant” covered that. In any event, since I have already concluded that the decision of the tribunal of 18 March 2014 has to be set aside for the reasons explained above, there is no need to explore whether there was any discrete failure to give adequate reasons or make adequate findings of fact on this issue.

 

Headaches, loss of energy, hunger and exhaustion and the effect of the grant of 25% extra time

33. Given the conclusions above as to errors of law, it is not necessary to deal separately with the issue of whether the First-tier Tribunal dealt with relevance of the symptoms mentioned properly. They can be raised as part of the case in the rehearing that has been directed. Similarly, I do not find it necessary to consider whether, as suggested by Judge West when giving permission to appeal, the tribunal of 18 March 2014 should have dealt expressly with an argument that the allowing of 25% extra time to C in timed tests and examinations necessarily showed that her impairment had had a substantial effect on her ability to carry out normal day-to-day activities. The circumstances of the present case are rather different from those in Paterson. That argument can be assessed in any rehearing in so far as it is relied on at that stage.

 

The definition of disability under the Equality Act 2010

34. In paragraphs 21 to 28 above, in dealing with the approach of the First-tier Tribunal to the decision in Paterson, I have proceeded on the assumption that what was said there in the context of the Disability Discrimination Act 1995 applied without qualification to the circumstances of the present case. That was the assumption on which the case seems to have been argued before the First-tier Tribunal and, in the main, before the Upper Tribunal. I have concluded that on that assumption the tribunal went wrong in law in a way that requires the setting aside of its decision. However, to give proper guidance to any new tribunal on a rehearing and for possible application in other cases, the changes between the terms of the Disability Discrimination Act 1995 and those of the 2010 Act must be examined.

 

35. I focus for present purposes on the introduction in section 212(1) of the definition of “substantial” as meaning “more than trivial or minor”. In my judgment, the application of any test in terms of whether or not the difference between the ability to carry out normal day-to-day activities that person concerned actually has and the ability she would have if not impaired is outwith the normal range of effects one might expect from a cross section of the population is incompatible with that definition. The question should be asked in the statutory terms without any additional gloss. It is true that paragraph B1 of the Guidance on the 2010 Act still talks in terms of the requirement of a substantial adverse effect reflecting the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people, as well as referring to section 212(1) and saying that the effect must be more than minor or trivial. That might be thought to be somewhat confusing, but, as Baroness Hale pointed out in Boyle at 1075, statutory construction “remains a matter for the courts, not statutory guidance”, in which she would plainly include tribunals as obliged to apply what is found to be the correct construction of legislation.

 

36. The general position under the 2010 Act was set out most helpfully and clearly by Langstaff P in Aderemi v London and South Eastern Railway (EAT) [2013] ICR 591, at 596:

 

“14. It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other. 

 

15. Unfortunately, as it seems to us and we think that Mr Cross in his admirable submissions tended to agree, the guidance both in the 2006 and for that matter, the 2011 form, attempts to give assistance to tribunals and others by contrasting those matters which are clearly trivial and insubstantial on the one hand with those which are clearly substantial on the other. That might, although wrongly, be taken to indicate that there is something of a sliding scale between the two, wherein the process of assessment may operate. However, it may only operate to ask whether a matter can be regarded as trivial or insubstantial: if not, it will be substantial if it is of effect upon normal day-to-day activities. As a matter of first principle when considering the statute, this requires the focus of the tribunal to be not upon that which a claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not.

 

  16. We take that to be the approach which a reading of the statute would require. It is the approach as we see it which was adopted, albeit under the Disability Discrimination Act 1995, in Paterson.  There, the headnote [in [2007] IRLR 763] rightly reads:

‘The only proper approach to establishing whether the disadvantage was substantial is to compare the effect of the disability on the individual.  This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment.  If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.’

 

17.  By ‘compare the effect’ we think it means ‘assess the effect’.”

 

37. Although Langstaff P there in quoting from the headnote in the report of Paterson does not expressly disapprove of the final sentence, that cannot now take away anything from the compelling force of what he had set out so clearly as to the trivial or minor test in the preceding paragraphs. That is the approach to the meaning of section 6(1) of the 2010 Act that should be followed within the SEND jurisdiction.

 

Conclusion and directions

38. For the reasons given above, the decision of the First-tier Tribunal of 18 March 2014 signed on 30 June 2014 must be set aside as involving errors on points of law. I have considered whether I could substitute a decision in the Upper Tribunal on the question of whether or not at the relevant time C had a disability within the meaning of section 6(1) of the 2010 Act. There is plainly a wealth of documentary evidence on which such a decision could be made. But I would not have had the advantage of seeing and hearing from C, her parents and the other witnesses. And most importantly, I do not have the expertise and experience of the members of First-tier Tribunals in the SEND jurisdiction. I consider that the decision on that question (and potentially the other questions arising on the claim) should be made by a body with such specialist expertise and experience which has had the opportunity to consider evidence and submissions directed to the right statutory tests. Accordingly, the case is (subject to the possibility of withdrawal: see paragraph 40 below) remitted to a First-tier Tribunal within the Health, Education and Social Care Chamber for reconsideration in accordance with the directions below.

 

39. No-one who was a member of the tribunal of 18 March 2014 is to be a member of the new tribunal that reconsiders the case. There must be a complete rehearing of the case on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 18 March 2014. A First-tier Tribunal judge within the SEND jurisdiction will no doubt wish to give case management directions, possibly after inviting representations or having a telephone hearing, as to the arrangements for any rehearing. The new tribunal is directed to apply the principles of law stated above, particularly in relation to the meaning of section 6(1) of the 2010 Act, including the meaning of “substantial”, and in relation to the meaning and effect of paragraph 5 of Schedule 1 to the Act. I do not need to give any further directions of law. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

 

40. I do not know how matters have progressed within the school since summer 2014. I must not be taken to be putting any pressure on the parents in any direction, but I am acutely conscious of the expenditure of time, emotional commitment and money that would no doubt be involved on all sides in a rehearing. Thus I merely suggest that the parents consider whether, having obtained the statements of legal principle in the present decision and if the school were perhaps inclined to offer some apology in relation to the position before October 2013, they have in essence made their point. In which case, they might also consider the withdrawal of their claim.

 

 

 

 

(Signed on original): J Mesher

Judge of the Upper Tribunal

 

Date: 20 November 2014