This case related to siblings diagnosed with autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). Their parent made claims for disability discrimination against the governing body of their school (the School) in the SEND Tribunal. 

The parent needed to show that the children were disabled under the Equality Act 2010 (the Act) for their claims. If they couldn’t do that, their claims would not be successful. The parent submitted written reports from diagnosing clinicians but did not ask them to attend as witnesses. 

Section 6 of the Act says that someone has a disability if:

• they have a physical or mental impairment
• which has a substantial (more than minor or trivial) 
• and long-term (lasting more than one year or likely to last more than one year)
• adverse effect on their ability to carry out day-to-day activities.

Some conditions are also deemed to be disabilities.

The School disagreed that the children were disabled. It said there was no substantial and adverse long-term impact on the children’s ability to carry out normal day-to-day activities.

The hearing date had to be re-arranged (adjourned). Close to the re-arranged hearing the parent asked for the hearing to be re-arranged again. The re-arranged hearing briefly started. The parent’s witness (who knew the children well) and the School’s witnesses (who did not) were there. The parent did not attend, having asked for the hearing to be re-arranged.

The SEND Tribunal refused the parent’s request for another adjournment and decided not to continue with the oral hearing, but to deal with the claims ‘on the papers’. This means deciding the claims without hearing from the parties or their witnesses, and on the evidence sent in.

Neither party had asked for the matter to be decided this way, but the SEND Tribunal decided on the facts this was the best approach in the interests of justice and fairness.

The SEND Tribunal agreed with the School. It rejected evidence from experts who had diagnosed the children with ASD and ADHD. It said the parent’s expert evidence did not show the children’s needs met the definition of disability, a key part of the parent’s claims. As such, their claims for disability discrimination were not successful.

The parent appealed the SEND Tribunal’s decision to the Upper Tribunal. The parent said the SEND Tribunal should have allowed a hearing before deciding the matter, and the reasons the SEND Tribunal gave for rejecting the parent’s expert evidence were inadequate.

The Upper Tribunal looked at the rules which set out how the SEND Tribunal deals with appeals and cases.

It saw that unless certain conditions apply (which did not here), the SEND Tribunal must hold an oral hearing which deals with all the issues in dispute before making a decision, unless the parties agree to the matter being decided without a hearing (and the SEND Tribunal agrees too).

The rules also say that if a party fails to attend a hearing, the SEND Tribunal must either hear the case in the party’s absence or re-arrange it (adjourn). Once a hearing has begun and it is clear that a party is absent, the SEND Tribunal cannot decide to deal with the matter on the papers instead of continuing with the hearing.

The Upper Tribunal said the SEND Tribunal should have considered if it could continue the re-arranged hearing in the parent’s absence. In this case a key issue was whether the children were disabled under the Act. The School’s evidence appeared to show they were not and the parent’s evidence appeared to show that they were. The parent’s witness could have given evidence on this issue by either the School or the SEND Tribunal asking them questions, and the SEND Tribunal might have decided differently had this happened. The only fair way of resolving this factual dispute (were the children disabled?) was to make sure each party’s witnesses had the opportunity to explain the apparent contradiction in the evidence.

The SEND Tribunal also did not properly explain why it rejected the evidence from the parent’s witness or the experts who had diagnosed the children.

The Upper Tribunal sent the case back to the SEND Tribunal to be reheard.

What does this mean?

Proving ‘disability’

In most claims for disability discrimination in the SEND Tribunal, a parent must show that their child meets the definition of disability under the Act. Showing that a child’s needs met the definition of disability is not simply a matter of diagnosis – parents must evidence each element of the definition.

The only time a parent could rely on a diagnosis alone would be if the child has a condition which automatically deems them to be disabled and they can evidence that condition with a diagnosis.

Examples of “substantial adverse effect on normal day-to-day activities”

This case sets out some examples of what a substantial adverse effect on normal day-to-day activities could be:

• difficulties waiting or queuing because of a lack of understanding of the concept
• difficulties understanding or following simple verbal instructions, and
• compulsive activities or behaviour, or difficulty in adapting after a reasonable period to minor changes in a routine.

It would not include things like:

• an inability to speak in front of an audience simply due to nervousness
• an inability to concentrate on a task requiring attention over several hours, or
• a person choosing to take part in high-risk activities, such as persistently crossing a road when it is not safe to do so or driving fast on highways, for their own pleasure.

What must happen in a hearing

In most cases, unless both parties have agreed to the matter being decided without a hearing and the SEND Tribunal has agrees to this, a hearing must be held.

If a hearing is held before a claim or appeal is decided, each party’s case must be considered (including their evidence and submissions).

This does not mean both parties must attend – hearings can go ahead without a party. If a local authority in a SEN appeal, or the governing body of a school in a disability discrimination claim, does not attend the hearing, the parent can expect that it will either:

• go ahead without them, or
• be adjourned.

The SEND Tribunal will decide whether to go ahead or re-arrange the hearing, based on the interests of justice. Parents should make clear why it would be unjust to adjourn the matter if the other party fails to attend, if that is the case for their child.

If a hearing goes ahead in the absence of the local authority or governing body, the SEND Tribunal can decide to ask questions of the parent and their witnesses, much like the absent party might have. Parents should still expect questions and be prepared to give answers and explain their case, even if the other party is not there.

If you have a hearing date set by the SEND Tribunal but you:

• think you might not be able to attend (for example, because of health needs or work commitments), or
• need to ask for the hearing date to be moved (for example, because an important witness cannot attend on that day),

then you should ask the SEND Tribunal to re-arrange the hearing date with as much notice as possible, to avoid the risk of the hearing going ahead in your, or your witness’s, absence. You can ask for the hearing date to be moved using a request for changes form (form SEND7).

A full copy of the decision for AB v The Governing Body of Kingston Grammar School: [2024] UKUT 406 (AAC) is available online.

Please see our pages on disability discrimination and appealing to the SEND Tribunal for more information.