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An Education

A recent judgment of the Supreme Court has confirmed again that there is no entitlement under the Human Rights Act 1998 to an education of a particular type or standard, writes Peter Wake. The court ruled there was no violation of the human right to education of a severely disabled pupil who was out of school whilst the local education authority sought to find him a suitable placement.

In A v Essex County Council [2010] UKSC 33 A was a gravely disabled child, severely autistic, epileptic and with severe learning difficulties. In accordance with his Statement of Special Educational Needs he attended a Community Day School for children with severe learning difficulties. In January 2002 he stopped attending following notification to his parents that he should be removed from the school. Thereafter he was kept at home pending assessment because his propensity to violence constituted a danger to other pupils and staff. Ultimately he was out of school for 18 months as complex medical assessments were carried out and a suitable school was found. He eventually received a residential placement at a cost to the council of £223,000 per year.

During the period he was out of school A was provided with educational support. It was accepted that this support did not meet his complex needs but it was always intended to be temporary whilst an adequate long-term solution was reached.

A brought proceedings against the local authority for damages alleging violation of his human right not to be denied education under Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights. The claim was struck out in the High Court on the basis that it had no reasonable prospect of success. It was also dismissed on limitation grounds as the claim had been brought outside the 12 month limitation period set out in Section 7(5) Human Rights Act 1998 and no extension of time was granted. Mr Justice Field pointed out that “there is a significant public interest in public law claims against the public bodies being brought expeditiously.” This decision was upheld by the Court of Appeal. A appealed to the Supreme Court.

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A’s essential case was that he was shut out of the state system and nothing amounting to alternative education was provided. His argument was that A2P1 imposes an absolute obligation on the State to provide all children with effective education, taking account of their special needs and regardless of the demands this has on resources.

The appeal on the scope of A2P1 was dismissed by a majority of three to two (Lady Hale and Lord Kerr dissenting). The right to education did not impose an absolute obligation on the State to provide a minimum standard of education and a breach of an education authority’s domestic law duties was not in itself sufficient to establish a violation of the right. The right conferred by A2P1 is simply a right to fair and non-discriminatory access to the system of education that is available in the State. The test is a pragmatic one and regard must be had to all relevant circumstances and the resources available.

The request to A’s parents to keep him at home was forced upon the school. The length of time it took the council to make better provision for him was regrettable but it was faced with a complex situation and the council was working towards a long term solution. Accordingly it could not reasonably be argued that the council had deprived A of access to its educational facilities.

The appeal was also dismissed on limitation grounds, this time by a majority of four to one (Lady Hale dissenting). The decision of the trial judge was sound and well within his discretion.

This should be a definitive judgment on the scope of the right to education provided for by A2P1. This judgment affirms the limited scope of the right as first set out by the House of Lords in Ali v Lord Grey School [2006]. The decisions on both A2P1 and limitation are welcome ones for local authorities and should make it difficult for human rights damages claims to be successfully pursued. It will also be more difficult for claimants to obtain public funding to bring such claims. As Lord Brown identified, had the claim been permitted there was potential for a flood of nominal damages claims against local authorities all of which would inevitably have been pursued entirely at public expense; better that “any serious shortcomings in the handling of a child’s education should be the subject of a prompt public law challenge so that they may be corrected in good time.”

A2P1 will not be breached where a local authority has placed a child in a school, offered a school place to a child and/or provided sufficient out of school education. A breach would require very serious failure, to quote Lord Brown again, “something akin to an abandonment of the particular child’s plight (a refusal to engage with its needs) or a complete breakdown (not merely shortcomings) in the authority’s handling of the individual child’s case.” Administrative shortcomings will not suffice.

In her dissenting judgment Lady Hale suggested that there should be a different consideration for children with special needs as the effect of exclusion for “such pupils” can be more serious. However, this is an unrealistic approach that would put the threshold for an A2P1 violation too low. It also takes no proper account of the implications this would have on finite public resources.

The Human Rights Act is an important piece of legislation and one can think of few other Acts of Parliament that are so well-known. However, It is not intended to protect people from all of life’s ills. Our public law framework provides a sophisticated system for the education of children with special educational needs and this system affords a consistent means of protecting fundamental rights.

If A's argument had been accepted then a human rights claim could legitimately have been brought when even the smallest change occurred to a child's prescribed education and regardless of the reasons for that change. This would be an impossible state of affairs and was clearly not the intention of our legislation. It would also be to allow Convention principles to assume a priority over domestic law, something Lord Judge, the Head of the Judiciary in England and Wales, in his recent lecture to the Judicial Studies Board warned that we must guard against.

Peter Wake is an Associate in the Local Government Team at Weightmans LLP. Along with Andrew Cooper, a partner at Weightmans, he acted for the council in this claim.

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