Case overview

This case concerned an autistic child attending a mainstream primary school who had significant special educational needs and behavioural problems, which included acting violently towards other children. The school had applied for high needs funding and tried to put in place additional support. After a number of detentions and exclusions a part-time timetable was put in place.

Whilst this was going on, the local authority (LA) agreed to issue an EHC plan and that a special school should be named in it. However the LA did not say which school. After some time, the LA finally agreed to name the parent’s choice of special school – but a place wasn’t available for some months and the child had to remain at their mainstream school.

Amongst other things, the parents said that the school had discriminated against their child by unlawfully denying him access to a full-time curriculum, keeping him on a part-time curriculum and failing to make sufficient adjustments for him.

The SEND Tribunal said no, the school had not discriminated against the child. But there were several issues arising from that decision which led to the matter going to the Upper Tribunal (UT).

The UT looked at section 15 of the Equality Act (EQA) 2010. This says that it is discrimination when a person (A) treats a disabled person (B) unfavourably:

• because of something which arises in consequence of B’s disability, and
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

The UT agreed that in this case  using the part-time timetable had a legitimate aim. This was to protect the other children in the class from risk of harm and also to try to accommodate the difficulties the child was facing in attending full-time.

Next the UT had to look at whether the use of the part-time timetable was proportionate to this legitimate aim.

The parents argued it was not: because it was a deprivation of the child’s right to a full-time timetable over a long period and the school had, in their view, done nothing to fill the gap.

The UT disagreed that the school had done nothing and said in this case the use of the part-time timetable was proportionate, noting that:

• the child’s challenges could not be accommodated in their school setting without careful, step by step planning and implementation
• the school took numerous reasonable steps towards reintegrating them slowly into school as and when their behaviour improved. It diverted the SENCO and a 1:1 teaching assistant to help achieve this, and
• the school had also written up a reintegration plan which the parents rejected. 

The UT looked at an earlier case (F-T v The Governors of Hampton Dene Primary School [2016] UKUT 0468 (AAC)), where lengthy use of a part-time timetable for a child with an EHC plan was discriminatory. In that case, significance was given to the emphasis on full-time education within the Education Act 1996 when thinking about whether the action was proportionate.

However, in this case here, the UT made clear that the Equality Act 2010 doesn’t give a pecking order for weight to be given to any particular considerations when thinking about proportionality:

• proportionality requires the SEND Tribunal to look at each factor individually and in the context of the other factors and then decide whether the there was a balance between the means and the ends. 
• It is not appropriate for the UT to label a factor as of ‘central importance’ and thereby give it a predetermined weight. 
• That weight can only be judged when seen in the light of the other factors - that is a matter of judgment for the SEND Tribunal. 

What does this mean?

Placing a disabled child on a part-time timetable may be discriminatory under section 15 of the EQA 2010.

If you make a claim for disability discrimination under section 15 against your child’s school in the SEND Tribunal, then it will look at whether:

• your child is disabled under section 6 of the EQA 2010
• whether your child was placed on a part-time timetable because of something which arises in consequence of their disability (such as their behaviour or needs), and
• whether the school can show that the use of that part-time timetable was a proportionate means of achieving a legitimate aim.

Whether making that decision was proportionate will depend on all the facts and whether there was a balance between making that decision and what the school was trying to achieve by it.

A disabled child missing education may have an impact on the proportionality of a school’s treatment but it is only one factor amongst others – all of which must be considered. It will be important for you to highlight all the reasons you think the use of the part-time timetable was discriminatory.

If your child is on a part-time timetable, you should also check whether:

• the law relating to exclusion is being followed 
• an EHC needs assessment or reassessment (if they already have an EHC plan) is needed, or 
• a review of SEN Support or of their EHC plan (if they have one) is required.

The full case report for RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN) [2020] UKUT 278 (AAC) can be viewed online.

For more information see our pages on disability discrimination, exclusion from school, EHC needs assessments, reassessments, review of EHC plans, and how school/ college should be helping.