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R (on the application of N) v INDEPENDENT APPEAL PANEL OF BARKING & DAGENHAM LONDON BOROUGH COUNCIL

The wording in the Disability Discrimination Act 1995 s.28B(1)(a) was to be construed as it was by the House of Lords in Malcolm v Lewisham LBC [2008] UKHL 43, [2008) 1 AC 1399, and not as the Court of Appeal construed it in Clark v TDG Ltd (t/a Novacold Ltd) (1999) 2 All ER 977.

3 March 2009

The appellant pupil (N) appealed against the refusal [2008] EWHC 390 (Admin), [2008] ELR 280) of her application for judicial review of the respondent panel's decision upholding a decision to permanently exclude her from school. N suffered from attention deficit hyperactivity disorder and had a statement of special educational needs. She had been excluded on a number of occasions for fixed terms. Her complaint that those exclusions constituted unlawful disability discrimination was upheld by the Special Educational Needs and Disability Tribunal (SENDIST). The school's decision to permanently exclude her was based on incidents which occurred after the incidents which gave rise to the fixed-term exclusions. The panel did not take into consideration the previous exclusions or the SENDIST decision, because it did not consider those matters to be relevant. The panel concluded that N had not been treated less favourably for reasons related to her disability, and that permanent exclusion w...

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