This case concerned a child attending a mainstream primary school. The child had autism and significant SEN 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. There were a number of detentions and exclusions and ultimately a part-time timetable was implemented. Whilst this was going on, the LA had agreed to issue an EHC plan. It agreed that the school the child was attending was not able to meet need and that a special school should be named, but it failed to identify one. After some months of wrangling, the LA finally agreed to name the parent’s choice of special school – but a place wasn’t available right away and the child had to remain at the mainstream school for some months longer.

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

The First tier Tribunal (FtT) did not uphold the appeal but there were several issues arising from the FtT decision which led to the matter going to the Upper Tribunal.

The relevant part of the claim was brought under s.15 Equality Act (EQA) 2010, which provides 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 Upper Tribunal agreed with the FtT that they needed to work out whether the treatment of this child was disproportionate to its likely benefit. The appellants argued it was: because it amounted to 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 void for him. The aim of the school was agreed to be legitimate – being both 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.

The Upper Tribunal (as did the FtT) disagreed that the school had done nothing and, in considering whether the part-time timetable was proportionate, noted that:

X’s behaviour and educational problems could not be accommodated in that school setting without careful, step by step planning and implementation. The School took numerous reasonable steps towards reintegrating X slowly into school as and when his behaviour improved. It diverted staff (the SENCO) and a 1:1 TA to help accomplish this. It also drew up a reintegration plan which, sadly, the Appellants’ rejected. I am in difficulties seeing how any lack of proportion could be laid at the School’s door after that point (para 66, Lane J)

The Upper Tribunal was keen to distinguish an earlier case (F-T v The Governors of Hampton Dene Primary School [2016] UKUT 0468 (AAC)). This case also involved a child with an EHC plan who was put onto a part-time timetable for a protracted period with a view to gradually increasing the amount of time in school.  This was found to be discriminatory, and significance was given to the emphasis on full-time education within the Education Act 1996.

However, in Horizon, the Upper Tribunal made clear that the Equality Act 2010 doesn’t prescribe a pecking order for weight to be given to any particular considerations when thinking about proportionality:

proportionality requires the 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. For the reasons I gave in those paragraphs, I do not consider it appropriate for the Upper Tribunal 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 and that is a matter of judgment for the Tribunal, not prescription by the Upper Tribunal (para 83, Lane J)

Therefore, although the fact that a disabled child is missing education may have an impact on the proportionality of a school’s treatment of them for the purposes of  s.15 EQA 2010, it is only one factor amongst others – all of which must be considered.

It will also be important to consider whether the law relating to exclusion is being followed and whether the need for a part-time timetable means that an assessment or reassessment of need, or a review of SEN Support or an EHC plan, is required.