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Bedfordshire County Council v Mr & Mrs Dickson-Wilson, Court of Appeal, 23 June 2009

11 August 2009
The issues

Disability Discrimination – Local Authority Provision of Transport.

The facts

D is a disabled boy aged 15 suffering from Asbergers Syndrome. He is transported from home to school in a small bus in company with other children which is provided free of charge by Bedfordshire County Council. The County Council are obliged to make this travel arrangement available pursuant to Section 508 B of the Education Act 1996. D is transported to and from the Samuel Whitbread Community College which is not his nearest school but the nearest one which meets his special needs. The return journey commences when ordinary school ends at 3 pm. D has however been attending the school’s ‘tech club’ which meets once a week after school but at some points extends to every night of the week when club member are involved in the technical aspects of a particular theatrical production at school. Tech club finishes at around 4.30 pm. D’s parents asked Bedfordshire to adjust the time at which the school transport would pick D up from school to allow him to attend Tech Club. D’s parents argue that the need for this adjustment arises in a way in which it would not be necessary for a non-disabled pupil attending Tech Club because non-disabled pupils would be able to make their own way home without the need for school transport time to be adjusted. D is not able to make his own way home because of his disability. D’s parents therefore argue that unless school transport pick up time is adjusted on those days when D wishes to attend Tech Club he is placed at a substantial disadvantage compared to his non-disabled peers. Bedfordshire County Council refused the request of D’s parents and D complained to SENDIST (The Special Educational Needs and Disability Tribunal).

The Law
Bedfordshire County Council as the Local Education Authority has a duty to provide ‘travel arrangements’ for eligible pupils within the terms of Section 505 B of the Education Act 1996. With regard to ‘disabled pupils the Council, as the Local Education Authority, is obliged to take such steps as are reasonable for it to have to take to ensure that, in discharging its Section 508 B ‘transport function’, such disabled pupil’s are not placed at a ‘substantial disadvantage’ in comparison with pupils who are not disabled (Section 28 G (2) (b) of the Disability Discrimination Act 1995. The Council however does not have to provide ‘auxiliary aids or services (Section 28 G (3) (b) even if however there is a finding that the Council’s decision not to provide transport is not reasonable within section 28 G (2), the Council may still be able to demonstrate that its failure to comply with its obligations is justified, within Section 28 (B) (2) and (7) of the Disability Discrimination Act 1995.

At first instance the special educational needs and disability tribunal concluded that the adjustment in transport requested by D’s parents was an auxiliary aid or service which fell within the Disability Discrimination Act section 28 G (3) (b) and therefore fell within the exception to the reasonable adjustment duty is set out in Section 28 G (2) (b) and that the claim of D’s parents could not succeed.

D’s parents appealed to the Administrative Court where Sir George Newman, sitting as Deputy High Court Judge found that the tribunal had been wrong to conclude that the set requested was for an ‘auxiliary aid or service’. He therefore concluded that the case required to be remitted for re-hearing.

The Local Authority submitted that the Judge had erred in finding that the transport provision was not an auxiliary aid or service. The Council argued that its duty was limited to that under Section 508 B and that the provision of a taxi for D at a different time was an ‘additional service’.

The decision

The County Court appealed on the basis that the Deputy Judge was wrong to find that the transport provision sought was not an ‘auxiliary aid or service; and that the Judge was wrong in his finding that even if there was discrimination towards D there was justification. In this regard the County Council argued that there would be significant cost implications, not only to D but to other disabled pupils who would seek the same separate transport arrangements.

The Court of Appeal considered that there must be situations in which a disabled person is ‘placed’ at a substantial disadvantage in comparison with pupils who are not disabled and in which it is reasonable for the Local Education Authority to take steps to ensure that this does not occur. To take a concrete example, said the Court of Appeal, children who are not disabled can attend after school clubs and make their own way home afterwards. D cannot do so. Why in principal, is he not therefore placed at a substantial disadvantage?

The Court of Appeal considered that, on the factual matrix identified by SENDIST the fact that D’s application could not succeed as a matter of law on the basis that the provision of transport was an auxiliary aid and service was not a conclusion that it was entitled to reach. The Court of Appeal therefore found that the Judge at the Administrative Court level was right to conclude that the case should be remitted for SENDIST to make proper findings of fact and to apply the statute to those findings, once that had been done it would then be open to the Court of Appeal to find, one way or the other, that discrimination had either been established or negative. The Court of Appeal found that they lacked the material upon which they could properly decide the important legal issues underlying the appeal. They were simply not in a position to form a view as to whether or not there had been discrimination in this case. The Court did however state obiter that the primary dictionary definition of ‘auxiliary’ in the second edition of the Oxford English Dictionary is “helpful, assistant, affording aid, rendering assistance, giving support or succour” for those reasons the Court commented that it didn’t seem that, as a matter of law, the adjustments sought on D’s behalf necessarily constituted an auxiliary aid or service. Lord Justice Aikens further commented that he doubted very much whether anything to do with transport to be provided could amount to an auxiliary aid.

Comments

The affect of the obiter comments seems to be that the provision of separate transport arrangements would not fall within the exception and therefore the Local Authority did have a duty to provide separate transport so that the disabled pupil was not at a substantial disadvantage. The County Council can of course still argue that such discrimination is justified by looking the cost implications however, whilst it may be anticipated that other disabled pupils would request separate transport arrangements which, it was submitted by the County Council would require not a bus service, but a fleet of taxis, and the cost implications of those arrangements may be substantial so as to be prohibitive, it is easy to see an argument that each case must be considered on its own merits and that separate transport arrangements for one disabled pupil in particular would not be so substantial as to be prohibitive.

By Jo Pruden

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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