A grammar school pupil was claiming reasonable adjustments for dyslexia and visual stress. In a selective high-performing school she performed around average in recent mock exams, without extra time. The Upper Tribunal held that the lower tribunal should not have concluded from this that she had no disability. Rather, the comparison should be between what she could do, and what she would be able to do without the impairment.
2014, Upper Tribunal. Full decision: www.bailii.org/uk/cases/UKUT/AAC/2014/520.html
C, a girl at the school, was stated to be affected by dyslexia and by Mears Irlen syndrome (often called visual stress). Her parents claimed to the First-tier Tribunal for reasonable adjustments. Among other things they wanted the school to apply for appropriate adjustments to her GCSEs (access arrangements).
The First-tier Tribunal appears to have held that she did not have a disability within the Equality Act. In particular, referring to Paterson, the tribunal noted that in a selective high-performing school she performed around average in recent mock exams, without extra time (§18).
Upper Tribunal decision
Comparison of ability relates to individual, rather than people generally
The Upper Tribunal said the central element in the reasoning of the Employment Appeal Tribunal (EAT) in Paterson v Commissioner of Police of the Metropolis was that – when deciding whether someone had a disability – the effect of an impairment is not to be determined by comparing the disabled person’s abilities with members of the population at large. Rather, the comparison is between what the individual can do, and what the individual would be able to do without the impairment. (§23)
The First-tier Tribunal here had showed in its reasons that it assessed the extent of the effect on C’s ability to carry out normal day-to-day activities by reference to an average. Even if that was not “the ordinary average norm of the population as a whole” (as overruled by the EAT in Paterson), but was an average of the abilities of C’s highly selected and hard-working classmates in the school, the test being applied was still not to look at the difference between how C in fact carried out the day-to-day activities affected and how she would have carried them out if not impaired by dyslexia and associated conditions. (§25)
The appeal therefore succeeded. The claim would be remitted to a fresh tribunal, if the claim was not settled or withdrawn. (§25, 38-40)
[My comment below: Comment: Not comparing individual with people generally]
Confusion on continuing relevance of population norms
The Upper Tribunal found rather confusing what Elias P in Paterson said about whether the adverse effect was substantial (§24):
- On the one hand, Paterson suggested at points (eg paragraph 38) that an effect that was more than trivial would do, but
- on the other hand in paragraphs 27 and 68 it suggested that the effect would have to be outwith the normal range of effects one might expect from a cross-section of the population, echoing the words of what was now paragraph B1 of the 2011 Guidance.
The Upper Tribunal said (§24):
I simply do not understand how the latter proposition can stand with the operation of the central element of the EAT’s reasoning [set out above in Comparison of ability relates to individual, rather than people generally] when it is a commonplace that there are vast variations within the population in abilities to carry out day-to-day activities, especially when looking at something like reading and comprehension. Nor do I see how it can stand with the result in Paterson. Although Mr Paterson was found to be at a substantial disadvantage in the promotion procedures for high ranks within the police force, it could scarcely be said (especially given his achievements prior to that process) that the difference between what he could actually do and what he could have done without the impairment was more than the differences to be expected within a cross-section of the population. Yet the EAT decided that he was a disabled person. I would be inclined to conclude that Paterson is not to be read as endorsing Elias P’s second proposition. However, I do not have to decide the point … .
[My comment below: Comment: Paterson statement on cross-section of population]
Normal day-to-day activities
The Upper Tribunal said that in this case it need to go into the detail of the EAT’s findings in Paterson that carrying out an assessment or examination could properly be described as a normal day-to-day activity (§23):
That was partly in the context of the EAT’s overall approach that in the employment context where it was not disputed that an employee is suffering a substantial disadvantage because of the effects of disability in promotion procedures or other aspects of participation on professional life (as shown in the case in question by acceptance of the need for 25% extra time) it had to be concluded, in order to give effect to the purposes of the legislation, that there was a more than trivial effect on the ability to carry out normal day-to-day activities … . The school context is different, but on the other hand, assessments, tests, assignments, examinations etc are very much part of normal day-to-day activities for school students. And the alternative approach suggested in Paterson might have validity: of regarding the ability in question to be reading and comprehension generally, normally a part of normal day-to day activities for everyone, regardless of the particular task in which that ability is actually or might be employed.
Comment: Not comparing individual with people generally
This decision confirms the principle set out in Paterson and other cases that a tribunal should look at the effect of the impairment on that individual, comparing his actual ability with how he would be without the impairment: Disability: “Substantial effect”>Effect on the individual (not yet updated for this case).
Comment: Paterson statement on cross-section of population
What I find particularly interesting about the decision, though, is that it questions the suggestion in Paterson that once one has determined the effect on the individual, the effect should be outside the normal range of effects one might expect from a cross-section of the population: above Confusion on continuing relevance of population norms. The EAT in Elliot v Dorset County Council, 2021, considered that the present PP v Trustees of Leicester Grammar School decision misunderstood what the EAT in Paterson meant, and gave its own interpretation of Paterson: Elliot v Dorset County Council>Paterson decision. Even so, Elliot moved somewhat away from that suggestion in Paterson, by saying one should start from the statutory test of whether the effect is “more than minor or trivial”. Elliot (at §51) pointed out that at the time of Paterson this “more than minor or trivial” test was not in the statute, and any inconsistency must now be resolved in favour of the statute.