NE and GE v Governing Body of Primary School (HS): [2025] UKUT 148 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Citron on 13 May 2025.
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Judicial Summary
The Appellants made a disability discrimination claim to the First-tier Tribunal, alleging that the Respondent’s nursery had withdrawn the offer of a placement for their 3-year-old child on account of his disabilities; the First-tier Tribunal found that the child had disabilities per the statutory definition and appeared to find that there had been no withdrawal of the nursery placement; it dismissed the claim. Permission to appeal to the Upper Tribunal was not formally limited but was given on account of potential inconsistency in the First-tier Tribunal’s findings as to whether and when a placement at the nursery was withdrawn; and a lack of express findings as to whether the withdrawal of the nursery place, if it indeed took place, was discriminatory. The Upper Tribunal held that, whilst there were imperfections in the way the First-tier Tribunal decision was expressed, it was adequately clear that the withdrawal of a nursery place that was the subject of the claim was the one that allegedly took place at a certain point in time; the fact that a place at the nursery was, in fact, withdrawn at a different (later) point in time, was not the subject matter of the claim, and so the First-tier Tribunal did not err in not making clear findings about it. The Upper Tribunal further found that other challenges by the Appellants to the First-tier Tribunal’s findings of fact did not rise to the level of being legal errors. The appeal was therefore dismissed. The Upper Tribunal did observe that the First-tier Tribunal decision would have been much clearer had it (a) expressly identified the discriminatory conduct which was the subject matter of the Appellants’ claim, and (b) expressed the issues in the case by reference to that; and commended such an approach to other writers of First-tier Tribunal decisions in this area of the law.