FT v The Governors of Hampton Dene Primary School

A school which denies a disabled pupil full-time attendance because of disability-related behaviour must justify that treatment under section 15 of the Equality Act 2010. A legitimate aim of preparing the pupil for full-time attendance will not make the treatment proportionate where the pupil receives no alternative education and is thereby denied the full-time education required by statute.

Indirect discrimination and reasonable-adjustment claims require identification of a relevant provision, criterion or practice. Individual measures adopted in response to one pupil’s assessed needs are not, without more, a practice applied or capable of application to non-disabled pupils.

S, a child with Down’s Syndrome and a statement of special educational needs naming the respondent maintained primary school, was initially educated part-time. Although her attendance was gradually increased, she was denied full-time schooling for about seven months and received no associated education outside school.

Her mother alleged disability discrimination concerning both attendance and access to playing the piano. The First-tier Tribunal dismissed both claims. It found that the school’s adjustments and phased attendance were a proportionate means of achieving the legitimate aim of returning S to full-time education.

On appeal, the Upper Tribunal considered whether the First-tier Tribunal had correctly applied section 15 of the Equality Act 2010, and whether its conclusions on direct discrimination, indirect discrimination, reasonable adjustments and the piano claim disclosed an error of law.

1. The appeal was allowed in part. The First-tier Tribunal’s dismissal of the section 15 attendance claim was set aside. The Upper Tribunal remade that decision and held that the school had discriminated against S. The dismissals of the other claims, including the piano claim, were left undisturbed.

2. The First-tier Tribunal was correct that denial of full-time schooling was unfavourable treatment because of something arising in consequence of S’s disability. The school therefore bore the burden of showing that the treatment was a proportionate means of achieving a legitimate aim.

3. The school’s aim of preparing S for the demands of full-time attendance was legitimate. However, proportionality required account to be taken of the fact that the part-time arrangement was not accompanied by any provision for education outside school. S was consequently denied the full-time education to which she was entitled under the Education Act 1996. That material consideration had been omitted by the First-tier Tribunal.

4. On remaking the decision, the Upper Tribunal held that the school had failed to use its best endeavours to secure the full-time special educational provision required for S. The educational deficit caused by seven months without full-time education was disproportionate to the aim pursued. No further remedy was required because S had left the school and the declaration of discrimination was sufficient.

5. There was no evidence of direct discrimination because there was no basis for finding treatment because of disability. The indirect-discrimination analysis failed because the school’s actions were a specific response to S’s needs, not a provision, criterion or practice applied or capable of application to non-disabled pupils. The Upper Tribunal also declined to find an error concerning reasonable adjustments, as no relevant provision, criterion or practice or comparator had been identified. The piano claim was properly dismissed on the First-tier Tribunal’s findings.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal concerning the section 15 attendance claim, set aside that part of the First-tier Tribunal’s decision, and remade it by finding disability discrimination.
• First-tier Tribunal: on 7 October 2014 (file reference SE 884/14/00012), dismissed the attendance and piano discrimination claims. Its dismissal of the attendance claim was set aside; its other decisions were not set aside.