UW v Cheam Academies Network (SEN): [2026] UKUT 53 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 04 February 2026.
Read the full decision in .
Judicial Summary
The appellant’s claims before the First-tier Tribunal were dealt with as claims of discrimination arising from disability under section 15 of the Equality Act 2010 (EA 2010) in relation to a series of detentions, fixed-term exclusions and then permanent exclusion of the appellant’s child, C. A First-tier Tribunal judge (the first judge) had at the outset of proceedings refused to admit a claim of failure to make reasonable adjustments in relation to the school’s behaviour policy on the basis that the Tribunal did not have jurisdiction to hear such a claim. The First-tier Tribunal panel (the panel) at the final hearing revisited but confirmed that prior decision. On the appellant seeking permission to appeal the final decision of the panel, a different judge of the First-tier Tribunal set aside the panel’s decision in relation to permanent exclusion, but stayed the re-hearing of that part of the case pending this appeal to the Upper Tribunal. The Upper Tribunal decides:
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There was no material error of law in the governing body of C’s school having been identified as the respondent to the claim at the time of the First-tier Tribunal’s hearing and decision, when in fact the ‘responsible body’ against whom the claim should have been brought under section 85 of the EA 2010 was the proprietor of the multi-academy trust of which the school was part. The retrospective substitution of the multi-academy trust as respondent under rule 9(1)(a) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the FTT Procedure Rules) meant that First-tier Tribunal’s decision was now binding and effective as against the trust. The trust had also retrospectively confirmed that the school’s headteacher was authorised to act on its behalf and accepted the First-tier Tribunal’s decision. The error did not materially affect the fairness of the hearing for either party.
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Under rule 11(1) of the FTT Procedure Rules, a party is entitled to appoint a representative of their choice. Where a party has failed to notify the name and address of its representative to the Tribunal as required by rule 11(2), the Tribunal has a discretion as to whether it permits the party to be represented by that representative at the hearing. That discretion must be exercised in accordance with the overriding objective and having regard to the general principle that (subject only to compliance with notification requirements) a party is entitled to be represented by whomsoever they choose. It had been open to the First-tier Tribunal to proceed with the hearing pending receipt of written notification that the headteacher was duly authorised as the governing body’s representative.
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By paragraph 2(4) of Schedule 13 to the EA 2010, the duty to make reasonable adjustments under section 20 of the EA 2010 applies to schools in relation to: (a) deciding who is offered admission as a pupil; and (b) provision of education or access to a benefit, facility or service. The latter encompasses the operation and application of a school’s behaviour policy, including in relation to sanctions and exclusions. The First-tier Tribunal erred in holding it had no jurisdiction to consider a claim of reasonable adjustments in relation to the behaviour policy, including in relation to detentions and exclusions.
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However, the decision not to admit that claim had been finally determined by the first judge at the outset of the proceedings and that decision had not been appealed. The panel at the final hearing had no power to revisit that decision unless satisfied that there were grounds for doing so under rules 45 to 49, which are the only rules that permit the First-tier Tribunal to re-open a decision finally disposing of part of proceedings. Accordingly, there was no material error in the decision of the panel that had been raised as a ground of appeal to the Upper Tribunal and it could not be set aside. Nor could the decision of the first judge be set aside because that decision had not (yet) been the subject of any application for permission to appeal, although it was open to the appellant now to make a late application to the First-tier Tribunal for permission to appeal that decision. The Upper Tribunal gave guidance as to how that late application may be approached.
The Upper Tribunal further notes that:
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In purporting to “not admit” the reasonable adjustments claim on jurisdictional grounds, the first judge failed to follow the Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Special Educational Needs or Disability Discrimination in Schools Cases (20 April 2021) (the 2021 Practice Direction). Nor was there any power in the FTT Procedure Rules to “not admit” a claim on jurisdictional grounds. Where the Tribunal lacks jurisdiction, the relevant provision of the Rules is the duty to strike out under rule 8(3).
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The First-tier Tribunal failed to inform the appellant of her right to appeal the first judge’s decision as required by rule 41(2)(c) of the FTT Procedure Rules. Alternatively, the First-tier Tribunal should have considered exercising the power in rule 46(2A) to direct that the 28-day time limit for appealing the first judge’s decision run from the date of the final decision that disposes of all issues in the proceedings.
The Upper Tribunal also gives further guidance on case management of disability discrimination claims under the EA 2010.