NE and GE v Governing Body of a Primary School (Upper Tribunal – Appeal No UA-2024-000254-HS) – Disability Discrimination
Background of the Case
NE and GE, the parents of a three-year-old child known as “O”, took legal action against the Governing Body of a Primary School, alleging disability discrimination. “O” has developmental delays, communication difficulties, and is largely non-verbal.
The parents argued that the school discriminated against O when, in January 2023, it indicated to them that the nursery was “not suitable” for O’s needs. They claimed this meant the nursery place was effectively withdrawn because of the effects of O’s impairments.
The school, however, argued it had not withdrawn the place. It stated that the January comments were part of a discussion around an Education, Health, and Care Plan (EHCP) for O, and not about withdrawing the nursery offer. The school claimed that the place remained available until April 2023 but ended only because the parents had stopped communicating with the school’s normal admissions process.
First-tier Tribunal Decision
The First-tier Tribunal agreed O was disabled under the Equality Act 2010 but concluded that the nursery place had not been withdrawn in January 2023. It found the offer remained open until April 2023 and had even been re-offered before the hearing. As the nursery place had not been withdrawn when the parents alleged, the Tribunal decided no discrimination had occurred, and the parents’ claim failed.
Appeal to Upper Tribunal
NE and GE appealed this decision to the Upper Tribunal, arguing that the First-tier Tribunal’s reasoning was unclear and inconsistent, particularly around the timing and existence of the nursery place offer.
Upper Tribunal’s Decision and Reasons
Upper Tribunal Judge Citron reviewed the First-tier Tribunal’s decision and concluded:
- Scope of Decision: The Tribunal could only assess events before the claim was lodged/ presented (10 April 2023). Later events could not be considered.
- Clarity of Decision: Although some wording in the First-tier Tribunal decision seemed unclear, overall, it was sufficiently clear that the nursery place had not been withdrawn in January 2023.
- Factual Findings: The Tribunal’s decision that the nursery place remained open was not unreasonable based on the evidence presented, and the Upper Tribunal should not overturn factual findings unless obviously wrong, which was not the case here.
- Reasonable Adjustments: The Tribunal correctly treated the issue of reasonable adjustments as linked directly to the main question of whether the nursery place was withdrawn. As the place had not been withdrawn, no separate issue regarding reasonable adjustments arose.
UT Judge Citron therefore found no legal error and dismissed the appeal, upholding the original Tribunal decision
Significance of the Case for Schools and Parents (and should be considered by young persons in further education bringing a claim).
Schools:
This decision highlights the importance of clear communication with parents, especially regarding the suitability of nursery placements and the EHCP process. Schools must carefully document their decisions and communications to avoid misunderstandings that could lead to allegations of discrimination.
Parents:
Parents should be aware that allegations of discrimination require clear evidence. It’s crucial to remain engaged with a school to protect their child’s placement.
This is a summary of the decision, which can be found HERE. It is provided for informational purposes only. Anyone intending to rely on this decision is strongly advised to seek appropriate legal advice.
Sean Kennedy
4 June 2025
