The Governing Body of a School v M

This appeal is primarily about the legal test for deciding whether a late claim for disability discrimination in the special educational needs context may be considered in the First-tier Tribunal.

The Appellant (‘M’, which is not her real initial) brought disability discrimination claims under the Equality Act 2010 (‘EA 2010’) to the First-tier Tribunal in relation to the treatment of her son (‘C’), by the secondary school that he attended (‘the School’). The claims were brought against the governing body (‘the GB’) of the School and concerned (among other matters) fixed-term suspensions for C and, finally and notably, a permanent exclusion (‘PX’) by the School.

Where I quote from original documents in this decision, I have redacted any individuals’ names (other than those of the parties’ representatives) in order to ensure the efficacy of the Rule 14 Order. I have therefore used initials or generic job description titles for all those concerned.

I am grateful to Mr Stenson (for the School) and Ms Swords-Kieley (for M) for their written and oral submissions. I am also sorry that it has taken so long to resolve this matter in the Upper Tribunal. The delay cannot be laid at the door of either counsel or those instructing them.

The FTT described the background as follows, having noted that C joined the School from primary school in September 2023:

The FTT then summarised the critical incident as follows:

This appeal to the Upper Tribunal does not concern the School’s decision to impose the PX itself. In that regard, it is noteworthy that the FTT’s conclusions were damning. The FTT considered “the school’s decision-making process to be deeply flawed” (paragraph 26). It also itemised its “very significant concerns about the school’s handling of this matter” (paragraph 29). The FTT further observed that “the decision-making process in this case indicates a fundamental misunderstanding of the school’s responsibilities under the Equality Act 2010 and more widely in respect of permanent exclusions” (paragraph 30). There has been no attempt to appeal those findings.

The essential chronology of this case is as follows.

On 17 July 2024 the incident took place in which C threatened members of staff and their families, as summarised in paragraph 12 of the FTT’s decision (see paragraph 6 above).

On 4 September 2024 the School permanently excluded C as a result of the incident on 17 July 2024.

On 26 September 2024 the GB upheld C’s PX.

On 16 May 2025 M lodged a claim for disability discrimination with the First-tier Tribunal (‘the FTT’). It is not in dispute that this claim was brought some seven weeks outside the six-month period in which such claims should be brought.

Tribunal Judge Bradley then made a series of case management orders in relation to the claim on 21 May 2025 (‘the First Order’), 19 June 2025 (‘the Second Order’) and 8 July 2025 (‘the Third Order’).

On 14 July 2025 the FTT heard the disability discrimination claim.

On 18 July 2025 the FTT promulgated its decision. Having decided to exercise its discretion to consider the claim out of time, pursuant to paragraph 4(3) of Schedule 17 to the EA 2010, the FTT dismissed the School’s application for M’s claim to be struck out as being out of time. The FTT also found that the School had subjected C to disability discrimination contrary to sections 15 and 85(2)(e) EA 2010 in respect of his permanent exclusion.

On 27 August 2025 Judge Bradley granted the School permission to appeal to the Upper Tribunal.

M’s claim was subject to intensive case management by the FTT. The following features are notable.

In the First Order (dated 21 May 2025) Judge Bradley summarised the relevant legal test in the following way:

Judge Bradley then proceeded in the First Order to assess the application to consider the late claim – or at least to make some preliminary but extensive observations in that regard – in the following paragraphs of the First Order, under the headings ‘Is the failure significant or serious?’ (paragraphs 6-8), ‘What are the reasons for the failure? (paragraph 9) and ‘Considering all the circumstances of the case, would it be just to admit the Claim?’ (paragraph 10). His conclusion, having weighed those matters, was that it was “appropriate to admit the Claim for consideration in respect of the PX” (paragraph 11). However, this was plainly a provisional conclusion, for the following reasons:

The FTT accordingly directed that the claim in respect of C’s PX on 4 September 2025 was admitted and would be considered (paragraph 15). Judge Bradley also issued detailed further case management directions and a timetable (paragraphs 16-25).

A case management hearing then took place on 19 June 2025. Here it transpired that the School had not filed a response to the claim and indeed had only become aware of the claim on the previous day, as the (correct) e-mail address to which the Registration Order and documents had been sent to was not regularly monitored. In the light of this, Judge Bradley directed that the hearing date of 1 July 2025 would be vacated and a new timetable directed. The FTT confirmed that the claim would proceed only in respect of the PX (Second Order, dated 19 June 2025, paragraph 1c), albeit that “this remains subject to the school’s response on the late admission of the claim. I will make a final decision on this point in light of that response” (paragraph 1d). The revised timetable set a new hearing date for 14 July 2025.

In the Third Order (dated 8 July 2025) Judge Bradley emphasised that “I have been clear in my orders of 21/05/25 and 16/06/25 that late admission of the Claim is subject to the school’s response” (paragraph 1). He now noted the School’s request “that the claim be struck out or, failing that, that the hearing listed for 14/07/25 should be vacated and a Case Management Hearing held to consider their application” (paragraph 1).

Judge Bradley continued:

Judge Bradley also expressed a revised provisional view in the Third Order:

The Third Order then provided that “the school’s application to strike out the claim on grounds of timeliness will be dealt with as a preliminary matter at the hearing”, which hearing was confirmed as listed for 14 July 2025.

In its decision the FTT explained the procedure it had adopted in the following terms:

The FTT then explained its decision to admit the late claim as follows:

Judge Bradley of the FTT subsequently gave the GB permission to appeal, making the following observations:

Part 9 of the EA 2010 deals with enforcement. Section 116 of the EA 2010 provides as follows (omitting provisions that apply only to Wales and Scotland or which concern admissions and exclusions):

Paragraph 3(a) of Schedule 17 to the Act confers jurisdiction on the FTT:

Paragraph 4 of Schedule 17 (entitled ‘Time for bringing proceedings’) materially provides as follows (emphasis in bold added):

It is relevant to observe that paragraph 4 of Schedule 17 is expressed in different terms to the provisions governing time limits for EA 2010 claims for disability discrimination brought before the County Court and the Employment Tribunal respectively. Section 118(1) of the EA 2010, applying to the former, provides as follows:

Section 123(1), which governs time limits for disability discrimination claims in the Employment Tribunal, adopts the model of section 118(1) rather than paragraph 4 of Schedule 17 (albeit with a shorter time limit in paragraph (a)):

I return below to consider the significance of the drafting adopted for paragraph 4 of Schedule 17 to the EA 2010 on the one hand and sections 118(1) and 123(1) of the same statute on the other.

The School advances three grounds of appeal before the Upper Tribunal.

Ground 1 is that the FTT erred in the procedure it adopted, namely by not determining the time issue as a genuine preliminary matter, contrary to its own Order and contrary to a fair and just case management approach.

Ground 2 is that the FTT erred in law in its approach to the statutory discretion to admit an out‑of‑time claim, including its use of the principles on the CPR relief from sanctions framework established by the Court of Appeal in Denton v T.H. White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926.

Ground 3 is that the FTT’s findings of fact and evaluative conclusions on “material hindrance” and the factors said to justify an extension of time for M to lodge the disability discrimination claim were perverse and/or unsupported by evidence.

As a result, Mr Stenson submits, the FTT’s errors vitiated its decision to admit the claim out of time. Rather, he contends, the claim in respect of the PX ought to have been struck out as being out of time and the associated findings and remedies must therefore be set aside.

As to Ground 1, the Respondent submits that the School’s case is put without any reference to any specific rule or case law authority. On the contrary, it is argued, the FTT’s approach was both entirely standard and entirely consistent with the its previous Orders and in any event a case management decision that was not only reasonably open to the FTT but necessary to further the overriding objective.

As regards Ground 2, the Respondent contends that the Appellant has singularly failed to articulate a consistent position on the correct legal test and has, albeit after several iterations, proposed a test that is plainly inconsistent with the unambiguous statutory language in issue.

So far as Ground 3 is concerned, the Respondent’s case is that the School, in an appeal to the Upper Tribunal on a point of law, is seeking rather to re-argue the facts that were in issue before the FTT and on which the FTT reached reasonable conclusions with which the Appellant simply disagrees.

Accordingly, Ms Swords-Kieley for the Respondent invites the Upper Tribunal to dismiss the appeal on all three grounds.

Mr Stenson submits that the FTT erred in the process it adopted by failing to determine the jurisdictional time issue as a genuine preliminary matter, contrary both to its own Order and to the overriding objective of dealing with cases fairly and justly. Thus, the Third Order directed that the issue of the time limit “should be considered as a preliminary matter at the start of the hearing”, and yet the FTT heard evidence on the merits and then used its substantive findings to shape its decision on the time issue. Moreover, the FTT’s concerns arising from the oral evidence at the hearing were determinative of the outcome of the decision to defer the time determination. Mr Stenson further contends that the FTT’s approach unfairly involved exposing the School to a full merits hearing when the matter should never have proceeded beyond the preliminary issue. As such, Mr Stenson submits, the FTT had ‘put the cart before the horse’ as it had allowed its impression of the merits to drive its determination of the time issue.

In summary, Ms Swords-Kieley submits that Ground 1, properly understood, is a perversity challenge, as it seeks to characterise the procedure adopted by the FTT as an unreasonable case management decision. However, she contends that the FTT’s approach was entirely consistent with the Third Order. Furthermore, she argues that the substantive merits of the claim were a proper consideration for the FTT to take into account in the exercise of its discretion on the time limit issue. In addition, Ms Swords-Kieley submits that there was no question of any unfairness – the School was legally represented and fully prepared for the substantive hearing.

I agree with Ms Swords-Kieley that this ground of appeal goes nowhere. The procedure adopted by the FTT was entirely in keeping with the Third Order, which had expressly stated that “this matter should be considered as a preliminary matter at the start of the hearing on 14/07/25. Both parties should continue to prepare on the assumption that there will be a substantive hearing of the claim, as that is likely to happen (even if the panel ultimately decides not to grant permission to bring the claim out of time).” It really could not be any clearer – the FTT was directing that it would consider (albeit not necessarily determine) the time issue as a preliminary matter. There was no undertaking to the effect that the FTT would give judgment sequentially. Further, and in any event, the FTT’s decision to proceed as it did was well within the generous ambit of its discretion to determine case management issues as it saw fit. Nor was there any unfairness or prejudice to the School in the procedure adopted – the process was both clear and clearly explained. Furthermore, there was nothing inherently unfair in the FTT considering the merits (or its impression of the merits) of the substantive claim.

Accordingly, Ground 1 does not succeed.

Ground 2, which is that the FTT erred in law by applying an incorrect legal test on the time question, lies at the heart of this appeal. Mr Stenson submitted that the FTT had misdirected itself by applying the three-stage Denton test to the admissibility of the claim. He argued that the principles enshrined in Denton were directed to dealing with case management sanctions in general civil litigation (e.g. in the context of failures to comply with court orders or time limits within extent proceedings). They were not devised as a vehicle for altering or relaxing statutory limitation periods, which are governed by their own legislative schemes. Thus, the FTT’s application of the Denton principles had the effect of shifting its focus from a question of statutory limitation to a case management issue about relief from procedural sanctions in the context of ongoing litigation. This encouraged the FTT to treat the admissibility of a late disability discrimination claim in the same way as ordinary deadline breaches in CPR-governed civil litigation, rather than as exceptions to a strict statutory time bar. As such, it risked re-characterising Parliament’s six-month time limit as a flexible case management guideline rather than as a substantive limitation period.

Mr Stenson noted that under paragraph 4(1) of Schedule 17 to the EA 2010 there was simply no power to bring a disability discrimination claim after the expiry of six months. Instead, the FTT “may consider” an out of time claim under paragraph 4(3). In contrast, the County Court and Employment Tribunal time limits in sections 118 and 123 respectively could be extended where it was “just and equitable” to do so. However, Mr Stenson observed that the “just and equitable” test had applied to claims under the DDA 1995 (see paragraph 10(3) of Schedule 3). The Explanatory Notes to the EA 2010 indicated that the legislative purpose had been to harmonise and restate the existing time limit provisions. It followed, he submitted, that the intended continuity with the DDA 1995 meant that the relevant test for the exercise of the discretion under paragraph 4(3) remained a “just and equitable” test, for which the key principles were summarised by Laing J in Miller v Ministry of Justice [2016] UKEAT 0003/15/1503 (at [10]), notably that “Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule.”

Mr Stenson further contended that the absence of any power to bring a disability discrimination claim after six months meant that there was necessarily a strong presumption against considering an out of time claim. Therefore, on a proper purposive reading of the EA 2010 provisions, the FTT was charged with applying the just and equitable test combined with a strong presumption against considering an out of time claim. Any broader discretion to consider late claims would have detrimental consequences, in that a clear jurisdictional bar would be subject to being unpicked by an unprincipled case by case approach that undermined predictability and finality.

Ms Swords-Kieley submitted that the School’s case was fundamentally misconceived. In short, she argued that paragraph 4(3) conferred on the FTT a general discretion to consider a claim that was out of time. Given the plain difference in statutory language, that discretion was not synonymous with the “just and equitable” discretion expressly embodied in sections 118 and 123. Furthermore, the FTT’s judgment was entirely consistent, both in substance and in form, with the correct exercise of its discretion under paragraph 4(3). However, if she was mistaken about that, and the “just and equitable” test applied, Ms Swords-Kieley submitted that the FTT’s judgment was in any event consistent with that approach.

Ground 2 requires the determination of two issues – (i) the correct test to be applied under paragraph 4(3) of Schedule 17 to the EA 2010; and (ii) whether the FTT applied that correct test.

I reject Mr Stenson’s submission that paragraph 4(3) is governed by the same “just and equitable” test (or, as he further developed his submissions, the “just and equitable” test allied with a strong presumption against the admission of a late claim) as sections 118 and 123. Parliament’s choice of a different test for the treatment of late disability discrimination claims – a test that is linguistically different both to sections 118 and 123 and to the statutory predecessor of paragraph 4(3) in the DDA 1995 – must be taken as deliberate. The effect of the clear distinction in the statutory language is not undermined by the relatively high-level and generalised statements in the Explanatory Notes as to the policy intention.

There is, moreover, an important and fundamental difference of conceptual approach adopted in section 118 (together with section 123) and paragraph 4(3) respectively. The former sets a statutory time limit which can then be extended where the “just and equitable” test is met. The latter sets an absolute and immutable legislative time bar but then invests the FTT with a discretion to consider a disability discrimination claim which is (and remains) out of time. Thus, paragraph 4(3) does not empower the FTT to exercise its discretion to find that a claim brought after six months is in fact in time. Rather, it enables a FTT to consider a claim notwithstanding that it has been brought out of time. This reflects the fact that sections 118 and 123 are predominantly concerned with adversarial party and party claims whereas wider public interest considerations are (or at least may be) at play with paragraph 4(3). It also means that paragraph 4(3) has to be read on its own terms and not as in some way a mirror provision of the “just and equitable” test in sections 118 and 123.

Thus, as Saini J acknowledged in R (on the application of AA v Secretary of State for Education [2022] EWHC 1613 (Admin); [2022] ELR 700 (at [77]; and see to similar effect [118]-[120] of the same judgment):

Saini J further emphasised the importance of the wider context to disability discrimination claims in schools (under the sub-heading “Benefits to the wider group of disabled pupils in the school and its potential pupils”):

The potential wider impact of a disability discrimination claim in the education context was also recognised by Upper Tribunal Judge Rowland in ML v Tonbridge Grammar School [2012] UKUT 283 (AAC): “The right of appeal to the First-tier Tribunal is, in my judgment, intended to be a means of improving practice in schools with a view to eliminating disability discrimination against all pupils” (paragraph 24, emphasis added).

Accordingly, the extensive corpus of authorities in the case law on the jurisprudence of the “just and equitable” test does not have a direct or even an indirect read across to the application of paragraph 4(3). Read on its own terms, paragraph 4(3) plainly invests the FTT with a general discretion – “The Tribunal may consider a claim which is out of time”, no more and no less. This was confirmed by Judge Lane in RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN) [2020] UKUT 278 (AAC) (emphasis added):

The FTT, in granting permission to appeal, stated that “in general terms, guidance from the Upper Tribunal on how the First-tier Tribunal should approach late admissions would be welcome.” As Judge Lane indicated, the short answer is that the discretion under paragraph 4(3) should be exercised consciously and judicially. Ultimately, that is a matter for the good judgement of the FTT (see JL v Governing Body of Cherry Lane Primary School [2019] UKUT 223 (AAC); [2019] ELR 505 at paragraph 38). However, and in broad summary, the FTT may have regard to any factors that it considers to be relevant, subject only to the condition that it does not act irrationally or perversely. Those factors may include (but are not limited to) the length of time by which the claim is late, the reasons why the claim was late, the merits (or apparent merits) of the claim, the importance of the claim to the claimant and/or the child, the likely prejudice to either party (depending on whether or not the claim is considered out of time) and the wider public interest in the claim being heard. It would be wrong for the Upper Tribunal to be any more prescriptive, given the open-textured nature of the discretion conferred by paragraph 4(3).

To recap, Mr Stenson submits that the FTT fell into error and applied the Denton test to the time limit question, resulting in a material error of law. In response, Ms Swords-Kieley submits that the FTT had in substance applied the correct test under paragraph 4(3) and, if it did not, and had applied the wrong test, there was no material effect on the outcome.

There are several reasons why a respectable case can be made out for arguing that the FTT applied the Denton test to the time limit question. First, and in the pre-hearing case management process, the FTT’s three Orders explicitly framed the time limit question by reference to the Denton criteria – see especially paragraph 5 of the First Order. Secondly, in its reasons for the “Late admission of the claim”, the FTT again expressly stated that it had “considered the three-stage process set out in Denton”. Thirdly, the FTT’s reasons at paragraph 8 of its decision are organised by reference to those three stages. Thus, paragraph 8(a) addresses the length of the delay beyond the six-month time limit, paragraph 8(b) deals with the reasons for that delay while paragraphs 8(c) and (d) then consider other relevant circumstances.

There are, however, indications that the FTT was simply using the Denton taxonomy as a means of organising its reasoning. In paragraph 4 of its First Order the FTT expressly acknowledged that the “Tribunal has a discretion to consider a Claim which is out of time”, correctly referencing paragraph 4(3) of Schedule 17. Further, although in paragraph 8 the FTT acknowledged that it had “considered the three-stage process set out in Denton”, this was said in the context of the FTT’s conclusion that “it is just to admit the claim for consideration” – and not that it was extending time as such. Paragraph 8(a)-(d) then refer to factors which are relevant to the exercise of the paragraph 4(3) discretion. Furthermore, paragraph 9 records the FTT’s conclusion that “there are strong reasons for admitting the claim for consideration out of time”. This demonstrates beyond peradventure that the FTT had ultimately directed itself to the correct question – namely, should the claim be considered even though it was out of time, and not should time be extended to admit the late claim.

Therefore, on a fair reading of the decision as a whole, I conclude that the FTT applied the correct test under paragraph 4(3).

Further, and in any event, if I am wrong about that, and in fact the FTT applied either the Denton test or the “just and equitable” test, the effect of such a misdirection was not material as in doing so the FTT would have been applying a more demanding standard for the admissibility of the claim, e.g. by the assertion that “late Claims are normally only admitted in exceptional circumstances or where there are very strong reasons”.

It follows that Ground 2 does not succeed.

The FTT concluded that “the cumulative effect of the Claimant’s circumstances materially hindered her ability to bring a claim on time” (paragraph 8(b)). These considerations may be summarised under the following heads: hypothetical IRP proceedings, the relative simplicity of submitting a straightforward claim, illness and medical treatment experienced by C’s grandmother, M’s eviction proceedings, C’s EHCP and school placement and the urgent medical treatment required by M’s representative. The School’s case, in essence, was that the FTT’s conclusion that M was materially hindered in bringing her claim by the cumulative impact of these various factors rested on findings that were either irrelevant, inconsistent or supported by the evidence.

However, I agree with Ms Swords-Kieley’s submission that this third ground of appeal is no more and no less than an impermissible attempt to re-argue the facts as found by the FTT. This ground of appeal asserts that the FTT’s factual findings were perverse, but it is axiomatic that such a charge faces a high threshold for success, not least as the weight to be attached to any particular piece of evidence was a quintessential question of fact for the FTT to determine. There is no escaping from the reality that Mr Stenson was inviting me to revisit the FTT’s factual findings. That invitation must be both resisted and declined by the Upper Tribunal. As Leveson LJ held in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746 (at paragraph 31), “assuming that the fact finder's analysis was open to him or her, an appellate court or tribunal can only intervene in that process based upon an error of law which is not the same as pointing to a different analysis of the evidence.”

It follows that Ground 3 is not made out.

As none of the three grounds of appeal succeeds, I therefore conclude that the decision of the First-tier Tribunal does not involve any material error of law. I therefore dismiss the School’s appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007. My decision is also as set out above.