S had Down's syndrome. Her Statement of special educational needs named a mainstream school with a specialism in educating pupils with communication difficulties for her final year of primary schooling.

S joined the school in November 2013. The school implemented a graduated attendance programme for S that saw improvements in her behaviour.  She started full time school in April or May 2014. She subsequently transferred to secondary school in September 2014.

S’s parent made an application to the First-tier Tribunal alleging that the school had discriminated against S contrary to s. 15 of the Equality Act 2010 by denying full-time education to S for over six months. The First-tier Tribunal found in favour of the school, concluding that the part-time timetable had been a proportionate means of achieving a legitimate aim. The parent appealed to the Upper Tribunal.

The Upper Tribunal found that the First-tier Tribunal had made an error in deciding that S had not been discriminated against. S was treated unfavourably because of something arising in consequence of her disability, and this had not been proportionate. Once S had become a registered pupil, the school had been obliged, under s. 317(1)(a) Education Act 1996, to use its best endeavours to secure a full-time education for S.

A local authority (“LA”) is permitted, under section 19 Education Act 1996, to provide “education on such part-time basis as the authority consider to be in the child's best interests”, where “for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided”. The LA confirmed it had not taken a decision under this section that S should not have full-time education.

The school had not made any provision for the hours where she was not in school. The Upper Tribunal stated the part-time timetable had not been proportionate:

A matter of central importance in assessing the proportionality of S’s treatment was that her denial of full-time schooling was not associated with any provision for her education outside school. This meant she was denied the full-time education to which she was entitled to under the 1996 Act Had the School’s treatment been associated with a home-education plan for S, I doubt I would have found discrimination. But, on the undisputed facts, S was denied a full-time education for some seven months. For any child, but especially a relatively young child, that is a significant educational deficit.

Interestingly, the Upper Tribunal added that while the case had been bought against the school, rather than the LA:

[T]he authority arguably owed S an even stronger duty to secure for her a full-time education given their duty to arrange the educational provision specified in her statement of SEN... I do not know what the authority were doing to help S during the relevant period… I simply observe that, if the history is un-picked, it might be found that the greater part of the responsibility for S having been denied a full-time education rests with the authority.

This case remains relevant to children with EHC plans and children with SEN without EHC plans. LAs have a duty to ensure all pupils receive a full-time education under s. 19 Education Act 1996. Schools cannot take unilateral decisions to place a child on a part-time timetable – this decision must be taken by the LA. ‘Part-time timetables’ are very likely to be unlawful exclusions.

The full case report for F-T v The Governors of Hampton Dene Primary School (SEN) [2016] UKUT 0468 (AAC) can be viewed online.

For more information see our sections on EHC plans; complaining when the provision in an EHC plan is not made; and exclusions.