Waltham Forest Vacancies

Pupil behaviour and disability discrimination

Holly Littlewood considers the “reverse” burden of proof in claims for discrimination arising from disability under section 15 Equality Act 2010.

The Upper Tribunal decision in B v Proprietor of St Dominic’s Grammar School [2025] UKUT 48 (AAC) provides helpful guidance on the operation of the “reverse” burden of proof under section 136 of the Equality Act 2010 (“EqA”), in the context of claims for discrimination arising from disability under section 15 EqA.

Factual background and FTT Proceedings

B was a 5-year-old girl, who attended St Dominic’s Grammar School. B experienced physical difficulties (including difficulties with coordination and understanding of force) and social, emotional and mental health difficulties (including difficulties with understanding her own and others’ emotions). In September 2022, B was involved in a number of physical altercations with other pupils. In response to this, the school suspended B for one day, and excluded her from the after school club for a period of over a month.

B’s parents brought a claim in the First-tier Tribunal (“FTT”) against the responsible body (“RB”) of the school, on the basis that the RB had treated B unfavourably because of something arising in consequence of her disability, contrary to section 15 EqA. The RB accepted that its actions constituted unfavourable treatment. However, it did not admit that B was disabled, or that B’s behaviour which resulted in B’s suspension arose in consequence of her disability.

The FTT dismissed the claim, holding that B was disabled, but that B’s parents had been “unable to show the link between the actions of the Responsible Body and [B’s] disability”. In reaching this conclusion, the FTT disregarded expert evidence from an educational psychologist and occupational therapist, and instead placed reliance on B’s own views about the reasons for her behaviour.

As B’s parents’ claim had failed under the first limb of the test in section 15 EqA (whether the unfavourable treatment was because of something arising in consequence of B’s disability), the FTT did not go on to consider the second limb of the test (whether the unfavourable treatment could be objectively justified as a proportionate means of achieving a legitimate aim).

B’s parents appealed on the grounds that the FTT had erred in law:

  1. by concluding that B’s behaviour did not arise in consequence of her disability; and,
  2. by failing to properly apply the shifting burden of proof in section 136 EqA.

Legal framework

Section 15(1) EqA (“discrimination arising from disability”) provides that a person (A) discriminates against a disabled person (B) if:

  1. A treats B unfavourably because of something arising in consequence of B’s disability; and,
  2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

The various elements of this test can be broken down as follows:

  1. The RB must have treated the pupil unfavourably;
  2. The reason for the treatment (the “something”) must be identified;
  3. The “something” must have arisen in consequence of the pupil’s disability.

Section 136 EqA creates a two-stage “reverse” or “shifting” burden of proof for proceedings relating to a contravention of the EqA (including claims under section 15 EqA). At the first stage, the burden is on the claimant to demonstrate “facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned”. Once the claimant discharges this initial burden, then at the second stage, the burden shifts to the respondent to demonstrate “that A did not contravene the provision”. If the respondent does not discharge this latter burden, then the court must hold that the contravention occurred.

Upper Tribunal decision

Applying the “arising in consequence” test

The Upper Tribunal (“UT”) allowed the appeal on the first ground. The UT emphasised that the question of whether B’s behaviour and her disability were causally connected was an objective one and was not concerned with B’s reasons or motive.

The UT (at paragraphs 44 – 49) sounded a note of caution about relying on subjective assumptions about a pupil’s motivation for his or her behaviour (albeit that it accepted that what B, B’s parents, or the RB “thought [B] was doing, or whether the conduct was ‘deliberate’ or not” may in principle be relevant matters to take into account). The UT noted in particular that “a person’s disability may manifest in many different ways, including both in ways that the person in question will experience as apparently conscious decision making and in ways that are unconscious … The fact that the physical behaviour is conscious, deliberate and / or retaliatory does not of itself mean that it is not causally connected to the disability.”

The UT held that expert evidence about the nature of the disability would be likely to be of assistance, and that if such expert evidence was available to the FTT, then it should be taken into account. However, the UT noted that such expert evidence would not always be essential, and that the FTT could if necessary use its own expertise to determine the issue.

Applying the shifting burden of proof in section 136 EqA

The UT also allowed the appeal on the second ground. The UT held (at paragraph 30) that the shifting burden of proof applies to both: (a) the question of the reason for the unfavourable treatment (the “something”); and (b) the question of whether the “something” arose in consequence of (“was objectively causally connected to”) the disability. As such, once a claimant has presented sufficient evidence to establish facts from which the FTT could identify both the reason for the unfavourable treatment, and the causal connection between that reason and the claimant’s disability, then the burden shifts to the respondent to prove that “the treatment had ‘nothing whatsoever’ to do with the disability”.  

Practical implications

This decision provides helpful guidance to RBs when considering whether a pupil’s behaviour has arisen in consequence of his or her disability. In particular, RBs should be cautious about relying on subjective assumptions about a pupil’s motivations, or about concluding that simply because a particular behaviour is a deliberate choice, it must be unconnected to a pupil’s disability. Instead, RBs should consider whether there is an objective causal connection between the behaviour and the pupil’s disability, in light of any expert or other objective evidence about the nature of that disability.

This decision also provides helpful guidance on the application of the “reverse” burden of proof in claims under section 15 EqA, confirming that it applies to all elements of the statutory test.

Finally, this decision highlights the importance of the FTT making findings on all substantial matters on which it has heard evidence, including on points relied on “in the alternative”. In this case, if FTT had made findings on the RB’s defence of objective justification, then the permission to appeal may have been refused on the basis that the identified errors could have made no material difference to the outcome.  

Holly Littlewood is a barrister at Spire Barristers in Leeds, and specialises in Court of Protection and education law. Holly can be contacted on 0113 200 2400 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. Holly has recently published a textbook entitled “A Practical Guide to Claims in the First-tier Tribunal (SEND) for Disability Discrimination in Schools in England”, which is available to purchase online at Law Brief Publishing .

This article is written for information purposes only and is not intended as legal advice. No liability is accepted by the author for any errors or omissions (whether negligent or not) that it may contain. Professional advice should always be obtained before applying any information to particular circumstances.