The Court of Appeal held that the House of Lords decision in LB Lewisham v Malcolm applies to education. In this case, a school’s exclusion of a child with ADHD was not disability-related discrimination because the school would have excluded a non-disabled child who behaved in the same way. The Court of Appeal reasoning would also apply to disability-related discrimination in other parts of the Disability Discrimination Act 1995 (DDA).
Court of Appeal, 2009. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2009/108.html
A child (N) had ADHD. After some fixed-term exclusions, she was permanently excluded from her school for her behaviour. The independent appeal panel dismissed her appeal. On the DDA, it decided that N had not been treated less favourably for reasons related to her disability, and that the school had not failed to make reasonable adjustments.
N applied for judicial review of the panel’s decision. One argument was that the panel had not given adequate reasons for saying that the school had not, for a reason related to her disability, treated her less favourably than they would treat someone to whom the reason did not apply. Her representative argued that the test was whether she had been treated less favourably than someone who had not behaved as N did – i.e. someone to whom the reason for the school’s treatment, namely exclusion, would not apply. This interpretation accorded with Clark v Novacold.
Held: the Court of Appeal disagreed with that interpretation. The House of Lords decision in Lewisham v Malcolm applied. The comparator was someone who behaved in the same way as N but did not have N’s disability. The school would also have excluded a student who behaved in the same way, so N had not been treated less favourably.
The House of Lords decision (which was considering a different Part of the DDA) should be followed. This was firstly because there was a strong presumption that the same formula used in different parts of the same Act it is intended to bear the same meaning. Secondly, the fundamental reason for the House of Lords decision applied equally to the education provision (s.28B(1)). The reason was that, on the Clark v Novacold interpretation, whenever the reason for a person’s treatment related to his disability, he would be logically bound to be able to satisfy the requirement that his treatment was less favourable than would be accorded to others to whom the reason did not apply. The comparative test would not be a test at all.