F-T v The Governors of Hampton Dene Primary School (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Mitchell |
| Neutral Citation | [2016] UKUT 468 (AAC),[2016] UKUT 468 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Disability discrimination in schools,Mitchell,E |
| Date | 18 October 2016 |
| Published date | 01 December 2016 |
F-T v The Governors of Hampton Dene Primary School (SEN)
[2016] UKUT 0468 (AAC)
HS/1547/2015 1
IN THE UPPER TRIBUNAL Upper Tribunal case No. HS/1547/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr E Mitchell, Judge of the Upper Tribunal
Decision:
The decision of the First-tier Tribunal (7th October 2014, file reference SE 884/14/00012) that
child S was not discriminated against contrary to section 15 of the Equality Act 2010 involved
an error of law and is SET ASIDE under section 12(2) of the Tribunals, Courts and
Enforcement Act 2007. The Upper Tribunal REMAKES the decision of the First-tier Tribunal
and decides that the Respondent Governing Body discriminated against S contrary to section
15 of the Equality Act 2010. The other decisions of the First-tier Tribunal are not set aside.
Under rule 14(1) of the Upper Tribunal (Tribunal Procedure) Rules 2008 it is ordered
that no person may disclose or publish any matter likely to lead to a member of the
public identifying child S. This order does not apply to (a) the child’s parents, (b) any
person to whom any parent discloses such a matter or who learns of it through parental
publication (and this includes any onward disclosure or publication), (c) any person
exercising statutory (including judicial) functions in relation to S.
REASONS FOR DECISION
Introduction
1. In this case, the Upper Tribunal decides that a disabled child was discriminated against,
contrary to section 15 of the Equality Act 2010, as a result of her being denied full-time
education for a period of some six months.
2. In these proceedings, the child’s mother, Mrs F, represented herself. The Governing Body
of the Respondent maintained primary school were represented by Herefordshire Council’s
Legal Services Team and Ms R Kamm of counsel.
Background
S’s schooling in 2013-14
3. On 30 October 2013, the Respondent Governing Body (“hereafter “the School”) wrote to
Mrs F to inform her they would not offer her daughter S, who had a diagnosis of Down’s
Syndrome, a place at their primary school for her final year of primary schooling. However, S
had a statement of Special Educational Needs (SEN) which named the School and, as a result,
the School was required by law to admit her under section 324 of the Education Act 1996
(“the 1996 Act”).
F-T v The Governors of Hampton Dene Primary School (SEN)
[2016] UKUT 0468 (AAC)
HS/1547/2015 2
4. The School initially thought S’s attendance would be incompatible with the provision of
efficient education for other children. The 30 October 2013 letter said S’s statement of SEN
described, at her previous school, frequently challenging behaviour and outbursts of
aggression. The School thought it lacked the “withdrawal space” needed to keep S and other
pupils safe.
5. The School soon relented although it is not entirely clear whether they did so independently
of their having been named in S’s statement of SEN. S’s class teacher’s witness statement for
the First-tier Tribunal stated S joined the school part-time on 4th November 2013 “on the
recommendation” of the local authority and she developed an individual timetable for S who
was placed in a ‘Green Group’ for children with speech or language disorder. No homework
was provided.
6. The teacher’s witness statement said S was distressed and unsettled on her first day.
Generally, she would tire easily and quickly causing her behaviour to deteriorate. S’s school
sessions were “gradually incrementally increased” but specific details were not given.
Behaviour improvement strategies were used: reduced work group sizes, use of visual aids,
use of singing and “working through behaviour strategies”. The witness statement said these
were reasonable adjustments made for S’s benefit.
7. The minutes of a 15th January 2014 review meeting state the school aimed to extend S’s
school day. She was then attending until noon and her class teacher would assess when she
was ready to tolerate a longer school day. The school were also “working on strategies…so
that soon she will spend the whole day at school” but these were not described. The minutes
added S’s behaviour was “very aggressive at the beginning but this has now been broken
down”. The school did not want to move too quickly because it thought S’s behaviour was
linked to her tiredness.
8. A report of 2th February 2014 said S made positive improvements in “social behaviour”
after joining the school at which point she was physically aggressive and threw things. In
November 2013, the classroom had to be evacuated most days but December saw a “marked
improvement” with only three incidents. However, recent weeks had seen increased “non-
compliance”. This report said “significant amendments” to Green Group provision allowed S
to make progress. The class teacher “role modelled” appropriate language for “what we
believed that she was trying to communicate”. S had generalised these language patterns and
“used her language to express herself, or on initial signs of distress we model the language
that she needs. This has alleviated a lot of frustration and anxiety”.
9. At a school meeting on 11th February 2014, Mrs F requested full-time schooling for S. The
minutes state the School thought S’s “challenging behaviour” meant she was not ready. Mrs F
was informed that if S had a good week her school day would be extended by 15 minute
intervals.
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...School had shown their treatment of X to be proportionate. 78. The effect of F-T v The Governors of Hampton Dene Primary School (SEN) [2016] UKUT 468 (AAC) There are several reasons why I do not consider F-T v The Governors of Hampton Dene Primary School (SEN) [2016] UKUT 468 (AAC) to assis......