Tue 31 May 2016

ADHD and Disability in terms of the Equality Act 2010?

In the recent decision JC v Gordonstoun Schools Limited [2016] CSIH 32 the Inner House upheld a decision of the Additional Support Needs Tribunal for Scotland (ASNTS) that a female pupil who had Attention Deficit Hyperactivity Disorder (ADHD) was not a disabled person as defined by the Equality Act 2010 (the 2010 Act).

The background to the case was that when a sixteen year old, female boarding school student and a male student were caught in a compromising situation one evening in an empty classroom, the school Principal decided that he had no alternative but to exclude both of them.  The female student had ADHD.  Her mother, the appellant, claimed that her daughter (M) was disabled and that the school’s decision amounted to unlawful discrimination. The ASNTS had jurisdiction to hear the claim under the 2010 Act section 116.  They rejected it.  They were not satisfied that M was disabled. M's mother appealed.

ADHD was described as a neurodevelopmental disorder that affects those parts of the brain that control attention, activity level and impulse control. It was conceded by the respondents that it constituted a relevant mental impairment for the purposes of section 6(1)(a) of the 2010 Act.

The ASNTS had concluded that M was not disabled within the meaning of section 6(1) of the 2010 Act. Regarding the application of the statutory definition of disability, they concluded:

“Having considered all of the evidence, it is our view that M cannot be said to have an impairment which substantially and adversely affects her ability to carry out normal day to day activities.  Our overall impression of the evidence from the school was that M went about her normal day to day activities in an entirely normal fashion……….The only aspect in which the school acknowledged any effect on M was in relation to her social skills.  Having considered all of the evidence, we are not satisfied that such effects were substantial, in that, in our assessment of the evidence as a whole, M’s social skills were in the normal range, albeit at the low end of that range.”

The ASNTS had preferred the evidence of M's Deputy Principal to that of M's mother as to M’s ability to perform normal day to day activities and the Inner House ruled that the ASNTS were entitled to do so. The Inner House observed that the Deputy Principal's evidence covered negative aspects of what M could not do as well as what M could do. In Goodwin v Patent Office [1999] ICR 302 an employment tribunal was criticised for having unduly focussed on what the claimant could do whereas they ought to have looked at what he either could not do at all or only do with difficulty; that being so, they had failed to assess the effect that his mental impairment had on his abilities. The Inner House in JC found that the ASNTS could not be criticised in this regard. Further, unlike M's mother and the various expert witnesses, the Deputy Principal give evidence about how M was at school at the relevant time which was, of itself, enough to allow the ASNTS to give the evidence particular weight.

As the Inner House made clear in their Judgement the issue for the Court was not whether, in principle, ADHD could amount to a disability for the purposes of the 2010 Act, it was whether it did so in the case of this particular student. However, this case is a useful analysis of the factors to take into account when determining whether a person with ADHD may or may not be a disabled for the purposes of the 2010 Act.

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