A and B v Minister for Education and Lifelong Learning: [2024] TRE 231 and 232

This case concerns a discrimination claim brough by two siblings, who are both pre-school aged and have bene classified as disabled under the Discrimination (Jersey) Law 2013.  The claim arisings from the Minister for Education and Lifelong Learning’s refusal to grant an exemption to their childminder, which would have allowed them to continue caring for both children beyond the six-month statutory limit imposed by the Day Care of Children (Jersey) Law 2002.

The exemption had originally been granted in November 2023, allowing the childminder to exceed the standard ratio of children under their care due to the specific needs of the claimants.  This exemption was valid until July 2024.  A further application was made for the exemption to be extended from August to Christmas 2024.  However, in September 2024, this application was refused.  The basis for the refusal was that the Day Care of Children (Jersey) Law 2002 restricts such exemptions to a maximum of six months, and no process for renewal or appeal was identified.

The claimants argued that the refusal to extend the exemption amounted to a failure to make reasonable adjustments under Article 7A of the Discrimination (Jersey) Law 2013.  They claimed this decision constituted discrimination arising from disability and had the effect of denying them access to a critical care arrangement that supported their well-being and development.

The Minister sought to have the claim struck out.  The Minister contended that the exemption process was rooted in the law and that its refusal was a lawful exercise of discretion.  They further argued that the Department for Children, Young People, Education and Skills (CYPES), had made the decision within the bounds of the statutory framework and that no breach of the Discrimination (Jersey) Law 2013 had occurred.

The Tribunal declined to strike out the claim at this stage.  It held that the case disclosed a prima facie claim under the Discrimination (Jersey) Law 2013 that warranted full consideration.  The Tribunal found that the refusal of the exemption, particularly in light of the children’s disabilities and their reliance on continuity of care, could plausibly amount to a failure to make reasonable adjustments.

Furthermore, the Tribunal considered that the Minister, was providing a public service and therefore fell within the scope of Article 22(a) of the Discrimination (Jersey) Law 2013.  This imposed a duty to make reasonable adjustments to policies, practices, and criteria that place disabled persons at a substantial disadvantage.  The Tribunal rejected the suggestion that adherence to a statutory maximum alone was sufficient justification for the refusal.  It acknowledged the importance of maintaining standards in childcare provision but emphasised that a balance had to be struck between safety regulations and the duty not to discriminate against disabled individuals.

Of additional concern to the Tribunal was the procedural fairness of the decision.  The parents had not been informed of any right of appeal, and it was not clear whether CYPES had been formally delegated authority to make the decision on behalf of the Minister.  These procedural uncertainties added weight to the argument that the matter deserved full adjudication.

In conclusion the Tribunal determined that the claim raised significant issues of public importance regarding the intersection between statutory regulation and anti-discrimination obligations.  It ruled that the questions of whether the Minister’s refusal was lawful, proportionate, and consistent with the duty to make reasonable adjustments should be assessed at a substantive hearing.

The decision reinforces the principle that event where actions are taken within the framework of statutory powers, they must still comply with anti-discrimination duties, especially when dealing with vulnerable populations such as disabled children.  It underscores the need for public bodies to consider individual circumstances and to ensure that general policies do not produce unjust outcomes when applied inflexibly.