School found to discriminate against boy with learning difficulties by not allowing him to attend nursery in the afternoon


Re: JW v Governing Body of Sinai Jewish Primary School [2019] UKUT 88 (AAC)

The parents of a boy with learning difficulties have won their appeal to the Upper Tribunal to set aside a previous FTT decision. The FTT found that the respondent had not discriminated against their son by refusing to allow him to attend the school’s nursery in the afternoons.

JW has difficulties in eating and drinking and medical evidence suggested he would need support in order to meet additional needs relating to physical and motor development. The school considered it would have been too expensive to employ an extra member of staff to supervise JW during the afternoon, especially as it was already suffering from a financial deficit. They maintained that although not allowing JW to stay for the afternoons may constitute treating him unfavourably, this was also a proportionate means of achieving a legitimate aim.

However, the Upper Tribunal found that financial position of the school had significantly improved by end of March 2016 as the deficit had been reduced, but that the school had not informed the FTT of this. Consequently, the FTT’s decision that there was no discrimination was wrong in law because it had been materially misled. Further, the UT found that the school went wrong in failing to reconsider the possibility of using its own funds to enable him to attend the nursery in the afternoons as the deficit reduced.

Mathew Purchase was involved in this case.