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The lawfulness of the registration process in disability discrimination claims

Jennifer Thelen analyses a recent Upper Tribunal school exclusion case which considered – and criticised – the process of “registering” claims for disability discrimination operated in the First-tier Tribunal.

In disability discrimination claims, the First-tier Tribunal has exercised a process of “registering” claims, whereby each act of discrimination raised is analysed. As part of that process, the Tribunal Judge will indicate what claims, under what sections of the Equality Act 2010 (the “Equality Act”), will proceed. Thus, if a claimant argues that he or she was discriminated against because a particular adjustment was not put into place, the First-tier Tribunal could review the claim form and issue a case management direction indicating that the incident in question was registered as a claim under the reasonable adjustment provisions of the Equality Act. Often, pursuant to registration, a First-tier Tribunal judge will indicate that a claim is to be treated one way (e.g. as a reasonable adjustments claim) even if it is pleaded another way (such as a claim for direct or indirect discrimination). Plainly the First-tier Tribunal has found this a useful case management tool in disability discrimination claims, where often the parties, and in particularly the parents, are not legally represented.

In F v Responsible Body of School W (FtT decision error of law and is set aside) [2020] UKUT 112 (AAC), Upper Tribunal Judge Ward considered the lawfulness of the registration process in disability discrimination claims.

In F, which concerned school exclusion, the First-tier Tribunal judge had registered a number of claims under s.15 of the Equality Act 2020 (“arising under” discrimination claims) but not a separate reasonable adjustments claim by way of “Case Management Directions on the Papers”. F applied to vary those directions. The directions were upheld by First-tier Tribunal Judge Lewis who stated that the reasonable adjustments claim was not sufficiently well-pleaded. F appealed.

The appeal was allowed. However, the import of the decision is its reasoning on the lawfulness of the Tribunal registration process. The concept of “registration” is not set out in either the Tribunals, Courts and Enforcement Act 2007 or the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) rules made thereunder (the “HESC Rules”). Not surprisingly, then, the decision of Upper Tribunal Judge Ward focused on the legislation which underpinned the registration process to consider it and its lawful limits. Two provisions of the HESC Rules were particularly relevant:

(1) Rule 5(1), which provided for wide case management powers for the First-tier Tribunal; and

(2) Rule 8, which provided a power to strike out, which could only be exercised upon a finding of no reasonable prospect of success and following an opportunity to make representations.

Ultimately, Upper Tribunal Judge Ward concluded that the registration power as exercised here was not lawful. In so finding, he noted that “the very uncertainty and ambiguity in what is involved in a refusal to register is a powerful indicator that, as operated, it is not lawful.” In particular it was not clear what test was being applied. If it was the test for strike out (no reasonable prospects of success) that was not stated. If further detail was required, there were other powers, such as the power to require a party to amend a document, which a First-tier Tribunal judge could exercise.

Further, here F was not given an opportunity to make representations on the issue on which his reasonable adjustments claim was ultimately not allowed to proceed, namely that it was insufficiently pleaded, because that point only emerged in the second order, the Order of First-tier Tribunal Judge Lewis.

UT Judge Ward accepted that there was value in a judge providing “initial, provisional, guidance to the parties, not least in discrimination cases with their potential for multiple heads of claim”. To this end, a First-tier Tribunal Judge can lawfully make directions which:

  • provides indicative guidance as to the Judge’s views of the issue in a case; or
  • operates the strike out provision of the HESC Rules in accordance with their terms.

The Judge acknowledged it may be possible to operate, lawfully, a registration system “which may have the effect of screening out some cases, or parts of cases which might, later in proceedings, have been the subject [of a strike-out application]”. However, for such a system to exist, procedural safeguards would be required. What that system, and those safeguards, should be was a matter for either the First-tier Tribunal itself (e.g. by way of Presidential Guidance) or the Tribunal Procedure Committee.

While the relief provided – that the claim be registered with a claim for the inclusion of a reasonable adjustments claim – appears to resurrect the concept of “registration”, that plainly can not be right given the language of the Decision. Rather, that language was likely chosen to simplify case management on the facts of this particular case, where only one aspect of the registration decision had been appealed.

Jennifer Thelen is a barrister at 39 Essex Chambers. She represented the school, instructed by Birketts LLP. Jennifer can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

 

 

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