JUDGMENT
A (Appellant) v Essex County Council (Respondent)
before
Lord Phillips, President
Lady Hale
Lord Brown
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON
14 July 2010
Heard on 24 and 25 March 2010
Appellant Respondent
Nicholas Bowen QC Edward FaulksQC
Shu Shin Luh
Duncan Fairgrieve
Andrew Warnock
(Instructed by Children’s
Legal Centre)
(Instructed by
Weightmans)
Intervener (The National
Autistic Society)
Ian Wise QC
Stephen Broach
(Instructed by Clifford
Chance LLP)
Page 2
LORD CLARKE
Introduction
1. This appeal concerns the scope and content of the right to education under
Article 2 of Protocol 1 (‘A2P1’) of the European Convention on Human Rights
(‘the Convention’).
2. A was born on 3 July 1989 and is now 21 years of age. At the time the
relevant events occurred, between January 2002 and July 2003, he was 12 and 13
years of age. His problems during that period can be summarised in this way. He
was autistic and had serious learning difficulties and a severe communication
disorder. His behaviour was challenging. He suffered from epilepsy, frequently
having 10 to 15 short epileptic fits a day despite medication. He was doubly
incontinent, had no concept of danger and required constant supervision. He was
dependant upon adults for every need.
3. A claims damages against the respondent (‘Essex’) as the local authority
with statutory responsibility to assess and provide for his educational and social
welfare needs. He does not claim damages for breach of a duty of care owed to
him at common law or for breach of statutory duty. Nor is his claim otherwise
based upon any public law duty imposed on Essex by the Education Act 1996. His
claim is put solely under the Human Rights Act 1998 (‘the HRA’). In short, his
case is that in the period between January 2002 and July 2003, when he lived at
home with his parents and three siblings, he was not at school and he was not
provided with any significant education of any other kind such that he was
deprived of even the minimum education to which he was entitled under A2P1. It
is submitted that Essex acted in a way that was incompatible with his rights under
A2P1 and thus unlawful under section 6(1) of the HRA; that he is a victim and
entitled to bring proceedings against Essex under section 7(1); and that it would be
just and appropriate for the court to award damages against Essex under section
8(1) because such an award is necessary to afford him just satisfaction within the
meaning of section 8(3).
4. A issued these proceedings on 5 May 2005. Essex sought an order that the
claim be dismissed under CPR 24 on the basis that it had no real prospect of
success. On 13 July 2007 Field J (‘the judge’) granted the application and
dismissed the claim: see [2007] EWHC 1652 (QB). He also refused an application
on behalf of A to extend the period of one year provided for in section 7(5) of the
HRA. He refused permission to appeal. Three similar applications were heard by
Page 3
the judge in other actions at the same time. He reached the same conclusion in
each. None of those is the subject of this appeal. A appealed to the Court of Appeal
with the permission of that court. The appeal was dismissed on 16 April 2008: see
[2008] EWCA Civ 364. The court upheld the decision of the judge that the claim
had no real prospect of success and did not consider the limitation point. The only
substantive judgment was given by Sedley LJ, with whom Ward and Hughes LJJ
agreed. The Court of Appeal refused permission to appeal to this court. This court
subsequently granted permission to appeal.
The statutory framework
5. A2P1 is entitled “Right to education” and provides:
“No person shall be denied the right to education. In the exercise of
any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions.”
The critical part of A2P1 is the first sentence. A’s case is in essence, as Sedley LJ
put it at para 3, that, for want of even minimally suitable provision for his
education, he was shut out of the state system for 18 or 19 months.
6. The principal domestic statute is the Education Act 1996 (‘the 1996 Act’),
which replaced and re-enacted the Education Act 1993, which in turn replaced and
re-enacted the Education Act 1981. The relevant legislation governing special
educational needs at the relevant time is summarised in paras 3 to 12 of the
judgment of the judge, which (with very slight variations) are set out in the
Appendix to this judgment.
7. As appears in the Appendix, in A’s case Essex were subject to two
particular statutory duties: first, a duty under section 324 to make and maintain a
Statement of Special Educational Needs and to arrange that the special educational
provisions specified in it were made for him; and secondly, a duty under section 19
to make arrangements for the provision of suitable education either at school or
otherwise than at school on the basis that, by reason of his illness, exclusion from
school or otherwise, he would not receive suitable education unless such
arrangements were made for him. However, as I have already said, A does not rely
upon a breach of these duties as giving him a cause of action against Essex. He
relies only upon A2P1.
Page 4
The legal principles
8. The critical provision is the first sentence of A2P1, which provides that “No
person shall be denied the right to education”. It is not in dispute that that
provision confers a right upon everyone. The right has been considered in a
number of cases. The most important of them is A v Head Teacher and Governors
of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363.
9. The issue in the Lord Grey School case was not the same as the issue here
because the facts were very different. The dispute was between the claimant and
the school which had excluded him. While excluded, the pupil was regularly
provided with school work and was offered a place at a pupil referral unit which
was rejected. He remained out of education for 10 months. By a majority,
Baroness Hale dissenting, the House of Lords rejected the submission that there
was a breach of A2P1 on the ground that an alternative package of education was
on offer and not taken up. Those differences do not in my view affect the legal
principles set out by Lord Bingham at para 24 as follows:
“The Strasbourg jurisprudence, summarised above in paras 11-13,
makes clear how article 2 should be interpreted. The underlying
premise of the article was that all existing member states of the
Council of Europe had, and all future member states would have, an
established system of state education. It was intended to guarantee
fair and non-discriminatory access to that system by those within the
jurisdiction of the respective states. The fundamental importance of
education in a modern democratic state was recognised to require no
less. But the guarantee is, in comparison with most other Convention
guarantees, a weak one, and deliberately so. There is no right to
education of a particular kind or quality, other than that prevailing in
the state. There is no Convention guarantee of compliance with
domestic law. There is no Convention guarantee of education at or
by a particular institution. There is no Convention objection to the
expulsion of a pupil from an educational institution on disciplinary
grounds, unless (in the ordinary way) there is no alternative source of
state education open to the pupil (as in Eren v Turkey (Application
No 60856/00) (unreported) 7 February 2006). The test, as always
under the Convention, is a highly pragmatic one, to be applied to the
specific facts of the case: have the authorities of the state acted so as
to deny to a pupil effective access to such educational facilities as the
state provides for such pupils? In this case, attention must be focused
on the school, as the only public authority the respondent sued, and
(for reasons already given) on the period from 7 June 2001 to 20
January 2002.”
Page 5
Lord Bingham then said that the question, therefore, was whether, between those
dates, the school denied the pupil effective access to such educational facilities as
the country provides.
10. There was some discussion in the course of the argument as to the
significance, if any, of the fact that, unique among the Articles in the Convention,
the right contained in the first sentence of A2P1 is expressed in negative terms. It
was submitted on behalf of A that there is no significance in the negative
formulation and that the right to education is an important positive right. By
contrast, it was submitted on behalf of Essex that the negative formulation was
deliberate and underlines the fact that the Convention does not contain an absolute
right to education and, in particular, unlike some other human rights instruments,
does not confer social and economic rights. In my opinion, the point is clearly and
sufficiently addressed by Lord Bingham in para 24 of the Lord Grey School case
quoted above and there is no need to embellish his analysis. It is an approach
which is entirely consistent with that of the European Court of Human Rights
(‘ECtHR’), namely that any limitations on the right must not curtail it “to such an
extent as to impair its very essence and deprive it of its effectiveness”: Leyla Şahin
v Turkey (2005) 44 EHRR 99, at para 154.
11. Some reliance was placed upon the recent decision of the Grand Chamber
of the ECtHR in Oršuš v Croatia (Application no 15766/03) delivered on 16
March 2010. As I read it, the case does not advance the above analysis. It was
concerned with the schooling arrangements of Roma children in Croatia. It
recognised that Croatia had a margin of appreciation but held (at para 182) that the
State must have sufficient regard to the special needs of Roma children as
members of a disadvantaged group. It held (at paras 185 and 186) that Croatia had
violated their rights under Article 14 taken together with A2P1 and that it was not
necessary to examine the complaint under A2P1 standing alone.
12. In short, in my opinion Lord Bingham’s para 24 sets out the relevant legal
principles for present purposes. Save to a very limited extent, I do not think that it
is necessary for me to refer further to the Strasbourg cases because Lord Bingham
has summarised them and his summary is set out by Lord Kerr. It was suggested in
the course of the argument that there was a difference or, as Sedley LJ put it at his
para 13, a possible tension between the analysis of Lord Bingham and that of Lord
Hoffmann in the Lord Grey School case. I do not accept that that is so. Lord
Nicholls and Lord Scott both agreed that the appeal should be allowed for the
reasons given by Lord Bingham. Baroness Hale took a different view of the facts
of the case but, as I read her speech, she did not disagree with the principles stated
by Lord Bingham.
Page 6
13. What then of Lord Hoffmann? He concluded his judgment by saying that
for the reasons he had given and those given by Lord Bingham he would allow the
appeal. So the ground for a suggestion that they were applying different principles
does not seem to be fertile. With the possible exception of two points, it appears to
me that Lord Hoffmann was saying precisely the same as Lord Bingham. Thus he
stressed at para 57 that the question to ask is whether the pupil has been denied the
basic minimum of education under the domestic system. He had said both in para
56 and earlier in para 57 that there is no right to be educated in a particular
institution. He was principally concerned to reject the submission that, if a failure
to provide education was a breach of domestic law, it was necessarily a breach of
A2P1: see paras 60 and 61.
14. The two points are these. In para 56 he said that everyone is no doubt
entitled to be educated to a minimum standard and referred to R (Holub) v
Secretary of State for the Home Department [2001] 1 WLR 1359 at 1367. And in
para 61 he rejected the suggestion that it was legitimate to promote the public law
duty of the school, not giving rise to a private law action, to a duty under section 6
of the HRA remediable by a claim in damages. He added that the question to ask
was whether there was a denial of a Convention right, which would have required
“a systemic failure of the educational system which resulted in the respondent not
having access to a minimum level of education”.
15. As I see it, the critical point in all the speeches is that under A2P1 of the
Convention a person is not entitled to some minimum level of education judged by
some objective standard and without regard to the system in the particular State.
The question is that posed by Lord Bingham, namely whether the pupil was denied
effective access to such educational facilities as the country provides. As Lord
Hoffmann stressed, that is not the same question as the question whether the
relevant authority was in breach of a duty imposed by domestic law, as for
example by failing, in breach of section 324 of the 1996 Act, to comply with
educational provisions set out in an SSEN.
16. The question is then whether the pupil has been denied effective access to
the system in place. That question will only be answered in the affirmative where
his right to education has been so reduced as to “impair its very essence and
deprive it of its effectiveness”. Lord Hoffmann’s reference to systemic failure must
be viewed in the context of the education system provided. So too must the
decision and reasoning in Holub, in which Tuckey LJ gave the judgment of the
court, which also comprised Schiemann LJ and Sir Swinton Thomas. The question
in the part of the appeal in Holub which is relevant for present purposes was
whether the A2P1 rights of the applicants’ daughter would be infringed if she were
returned to Poland and thus not educated in the United Kingdom. The court held
that they would not.
Page 7
17. In the course of the judgment Tuckey LJ referred (at para 23) to X v UK
(1980) 23 DR 228, where the Commission accepted the interpretation of the
ECtHR in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 at 281-283,
which it summarised as follows:
“The negative formulation of the right indicates that the contracting
parties do not recognise such a right to education as would require
them to establish at their own expense, or to subsidise, education of
any particular type or at any particular level. … There never was, nor
is now, therefore any question of requiring each state to establish a
system (of general and official education) but merely of guaranteeing
to persons subject to the jurisdiction of the contracting parties the
right, in principle, to avail themselves of the means of instruction
existing at a given time. The Convention lays down no specific
obligations concerning the extent of those means and the manner of
their organisation or subsidisation. … The first sentence of article 2
of the Protocol consequently guarantees in the first place, the right of
access to educational institutions existing at a given time. This right
requires, however, regulation by the state ‘regulation which may
vary in time and place according to the needs and resources of the
community and of individuals. It goes without saying that such
regulation must never injure the substance of the right to education
nor conflict with other rights enshrined in the Convention.’”
18. Those principles are the same as those summarised in para 24 of Lord
Bingham’s speech in the Lord Grey School case. However in Holub at paras 24
and 25 the Court of Appeal accepted a submission made by counsel that if the right
was to have any content it should at least encompass the provision of an effective
education. In doing so, it accepted the following passages from what is now the
third edition (2009) of Human Rights Law and Practice by Lester, Pannick and
Herberg:
“4.20.4 The general right to education comprises four separate rights
(none of which is absolute):
(i) a right of access to such educational establishments as exist;
(ii) a right to an effective (but not the most effective
possible) education;
(iii) a right to official recognition of academic qualifications.
….
Page 8
4.20.6 As regards the right to an effective education, for the right to
education to be meaningful the quality of the education must reach a
minimum standard.”
19. It is important to note that the authors are careful to say in that summary
that none of the rights identified is absolute. Much of A’s case is designed to
support a submission that his right to a minimum standard of education is absolute.
I would not accept that submission. I do not think that the court in Holub can have
meant that there must be a minimum standard of education regardless of the
system in place in a State Party to the Convention. Such a conclusion would be
inconsistent with the reasoning in the Belgian Linguistic Case (No 2). The
minimum standard must have regard to the system in place. The examples given
by Lester, Pannick and Herberg seem to me to make that clear. Thus the note to
para 4.20.4(ii) simply says that in Eren v Turkey (2006) 44 EHRR 619 the
annulment of a student’s examination results, which resulted in his being denied
access to university, was held to violate A2P1. And in the note to para 4.20.6 the
authors refer to para 5 of the Belgian Linguistic Case (No 2):
“the right to education would be meaningless if it did not imply in
favour of its beneficiaries the right to be educated in the national
language or in one of the national languages, as the case may be.”
Reference was also made to Cyprus v Turkey (2001) 11 BHRC 45, where it was
held that the abolition by the Turkish authorities of the Greek language secondary
schools in Northern Cyprus constituted a breach of A2P1.
20. In my opinion none of those cases is of assistance in the present case. The
correct approach is that identified by Lord Bingham at para 24 of the Lord Grey
School Case quoted above and the question for decision which he formulated, as
applied to this case, is whether A was denied effective access to such educational
facilities as the State provides for such pupils. A was only denied effective access
if he was deprived of the very essence of the right.
21. As I see it, the answer to that question must be given by reference to all the
relevant circumstances of the case. In the instant case, as appears below, A could
no longer continue at the school he was at. Given his very considerable problems,
it was necessary for a proper analysis to be carried out as to what was best for him.
It is inevitable that in a case of this kind there may be delays and interim measures
may be difficult to put in place. As Lord Bingham put it, the test, as always under
the Convention, is a pragmatic one to be applied to the specific facts of the case.
Was A deprived of effective access to such educational facilities as the State
provided for pupils like him? One of the real problems is that there are very few, if
Page 9
any, pupils like A and it seems to me that that is a factor which can fairly be taken
into account before it is held that Essex infringed A’s rights under the Convention.
It is important to appreciate, however, that the question in this appeal is not
whether Essex infringed A’s rights but whether he has a real prospect of
establishing such an infringement at a trial.
22. It is also important to appreciate that that is not the same question as the
question whether it is arguable that Essex could have done better or that Essex was
in some way at fault in not doing more than it did in the interim period between
January 2002 and July 2003, when a residential school was ultimately found to suit
A’s needs. I recognise that there has been no trial of A’s allegations but, if the
position is that, taking the facts at their highest from A’s point of view, his case
that Essex infringed his rights under A2P1 cannot succeed, it follows that his claim
has no real prospect of success and the appeal must be dismissed.
The facts
23. The relevant facts were set out by the judge and, as so set out, were
incorporated into Sedley LJ’s judgment. The parties agreed a Statement of Facts
and Issues. However, shortly before the hearing of this appeal those advising A
produced further factual material upon which reliance was placed. Some of that
material was disclosed to them recently and it was submitted that the court should
have regard to it because it will or would be available at a trial and the question for
the court at this stage is simply whether A has a real prospect of success at a trial.
This position is far from satisfactory because the whole purpose of an agreed
statement of facts and issues is that the parties should prepare and reach agreement
on such a document well in advance of the appeal. However, I propose to have
regard to the agreed statement as supplemented by the further material.
24. Essex maintains a community special day school for children with severe
learning difficulties called LS School (‘LS’). Pursuant to section 324 of the 1996
Act, Essex made and maintained an SSEN for A and named LS in Part IV. It was
originally issued on 1 July 1993. A accordingly began his statutory schooling at LS
in 1995. In about May 2001, when he was approaching his 12th birthday his
behaviour started to deteriorate. As part of the Annual Review process the school
reported concerns about the unpredictability of his behaviour and asked Essex for
more resources to cope with him. Concerns were expressed by the school, not only
about his behaviour, but also about its ability to manage it. In a letter dated 17
September 2001, after observing A at school at lunch time, a consultant
paediatrician said that he required two adults to hold him but that, in spite of that,
he would lash out and bite or scratch those assisting him. The teacher had told him
that he was running out of ideas as to how to control A. In November 2001 the
SSEN was amended but LS remained the school named in Part IV.
Page 10
25. A’s behaviour deteriorated further and on 17 January 2002 A’s parents were
invited to and attended a meeting with representatives both from the school and
from Essex and with his community consultant paediatrician to discuss his
placement. His parents were advised that the school could not cope with him and
that his continued presence in class posed a risk to the health and safety of other
pupils. The school felt that his underlying medical and psychiatric problems
needed to be addressed satisfactorily before he would be able to benefit from the
education it provided. His parents were asked not to bring him into school for
health and safety reasons until an urgent medical assessment in a hospital setting
was carried out. They agreed, no doubt because they felt that they had no
alternative. The position was confirmed in a letter from the head teacher dated 18
January in which he assured A’s parents that the medical, educational and social
services would continue to work together to find a solution for A. The letter
expressly said that he would be in contact with them to arrange some home support
while A was off school.
26. The intention of the professionals, including the school, was for A to
receive an urgent medical assessment at the National Centre for Young People
with Epilepsy (‘NCYPE) at St Piers. However, it became clear that it might be
quite some time before a residential assessment could be arranged and carried out.
A’s mother expressed concern as to how she would be able to cope. On 13
February a meeting took place to discuss the position at which a large number of
professionals was present and A’s situation was discussed in detail. It was reported
to the meeting by Dr Yousif, who was a psychiatrist with the Learning Disability
Outreach Team, that A had been accepted for an initial assessment at Chalfont or
St Piers but that they were awaiting a date for it. The half day assessment would be
the basis for a residential medical assessment which would last 5 days and which it
was hoped would take place in April or May. In the event it did not take place until
mid-September 2002.
27. Under the heading ‘Ongoing Support’, the note of the meeting says that the
school was sending work for his parents to do with A. It also says that LS would if
possible arrange for A to continue to access speech and language therapy sessions
at school, with transport to be provided, and that both his class teacher and his
social worker would keep in regular contact with his mother. Family care workers
were said to be unable to provide respite support due to the risks involved. An
occupational therapy assessment of A’s room had begun with the aim of providing
equipment and padding in order to protect him from self harming.
28. The initial medical assessment took place on 28 February. A consultant
paediatric neurologist and an epilepsy nurse from the NCYPE made an outreach
visit. Their report shows just how disturbed and difficult to cope with A was. They
recommended a 5 day interdisciplinary assessment at St Piers, the aims of which
would be to monitor seizure types and frequency, to advise on medication, to
Page 11
assess behaviour and its possible relationship with epilepsy, to assess
communication, to assess mobility and self-help skills and to advise on future
educational placement. It can thus be seen that A required assistance from a
number of different disciplines and it was sought to arrive at a cross-disciplinary
solution to his problems.
29. On 4 March the head teacher of LS wrote to A’s parents inviting them to
bring him in to the school for speech therapy sessions beginning that week. Speech
therapy sessions started on or about 20 March on a weekly basis. At first they were
30 minute sessions, which for a time were reduced to 15 to 20 minutes in about
May.
30. On 20 March there was a further meeting at which very many professionals
were present. The minutes show that many aspects of A’s problems were
discussed. Concerns were expressed about A’s deteriorating behaviour and how
his family could cope, especially since at least two residential homes had indicated
that they could not provide him with respite care. Attempts continued to arrange a
medical assessment.
31. On 14 April A’s solicitors, the Children’s Legal Centre, were instructed by
his parents on his behalf. On 1 May a further meeting of professionals, described
as a Partnership Meeting, was held at LS. It was attended by representatives of
Essex’s social services and education departments, staff from LS, A’s parents and
others. A’s parents had been given two boxes of activities – touch books and
bubbles – for them to do with A at home. However, A’s mother said that A had
become bored after a few sessions. It was noted at the meeting that the boxes of
activities were ‘not acceptable education’. Although LS reiterated their reasons for
A not being in school, namely health and safety, it was acknowledged that A’s
educational needs were not being met. However, Essex’s education department
stated that there was no home tutor who was qualified to meet A’s needs. LS was
asked to consider whether there was any possibility of providing A with a teacher
for home tuition or offering some tuition at school. The head teacher said that he
would discuss with the class teacher and teaching assistants how best to do that.
However, although that might meet A’s short term needs, his long term
educational needs also required to be addressed. Alison Stanford of the Special
Educational Needs and Psychology Service (‘SENAPS’) stressed the need to await
the recommendations of the residential medical assessment. By the time of that
meeting, joint funding for a 5 day residential assessment, which would cost over
£10,000 had been agreed between Essex Learning Services (Education), Essex
Social Services and Essex Health Authority. Unfortunately the assessment could
not take place until September 2002.
Page 12
32. By this stage A was exhibiting increasingly challenging behaviour.
Although his parents tried hard to support him at home, they were struggling to
cope with his behaviour. In a report dated 18 June 2002 a community nurse
specialist with the Children with Disability Team stated that A’s behaviour was
due to “(i) lack of sensory stimulation, boredom and lack of meaningful
occupation; (ii) inability to clearly communicate his needs and be clearly
understood by those around him”. She said that she had therefore referred A to an
occupational therapist and social services had agreed to pay for some of the
equipment which the occupational therapist had recommended. She had also
referred A to his doctor who had prescribed him with the anti-psychotic drug
Chlorpromazine with a view to calming his behaviour in the hope of reintegrating
into activities, including attendance at school.
33. A review of A’s SSEN on 19 June noted that A had been out of school since
January but did not seek to amend the SSEN to name a different school. In a letter
to A’s parents written somewhat later, on 31 July, referring to the SSEN, a
member of the Special Educational Needs and Psychology Service, Clare Taylor,
said that the school had developed a structured programme for A pending the
outcome of his assessment at St Piers. She added that the Social Services Outreach
Team would also continue to support the school in meeting A’s needs. Her letter
was to some extent at least based on the information in a letter to her dated 21 June
that there were a significant number of planned session times for A during the
remainder of the summer term. They were for 45 minutes every Tuesday except
for 9 July, which was Sports’ Day, an hour every Wednesday and 15 minutes on
two Thursdays. These were all activity sessions while his parents attended
Makaton sessions. A also attended planned sessions in September and October
2002.
34. The residential medical assessment took place at St Piers from 8 to 13
September. A was observed by an inter-disciplinary team of professionals. An oral
report was made on 13 September which, as noted at the time, included the
following:
It was felt by St Piers that A’s epilepsy is not the overriding
issue of concern at present. The overriding concern noted was
that due to A’s exclusion from school since February, he has
spent many months at home, and his educational, emotional,
social, psychological and developmental needs are clearly not
being met. It was noted that although Mr and Mrs W clearly
try hard to support A at home, that it is very difficult for them
to meet A’s comprehensive needs. This has resulted in A
being hugely under stimulated, and him being effectively
‘sensorily deprived’. This may be a causative factor for his
self-injurious behaviour. St Piers stated how it is common for
“
Page 13
self-injury to be seen in children with little sensory
stimulation.”
It was recorded that there was a notable improvement in A’s behaviour during the
5 days and that his main disability was his learning disability as opposed to his
autism. The note then included the following:
In light of the above, it was clearly indicated that A’s needs
are not currently being met. The conclusion from St Piers [is]
that it is strongly in A’s best interests to be placed in a 24-
hour residential school placement. This would be at a school
specifically for children with high levels of challenging
behaviour such as A. It is noted that by attending such a
placement for an initial period of 1 year, this may have the
eventual benefit of A becoming more easy for his parents to
support at home in the long term. A would also be able to
return home at weekends and during school holidays. St Piers
recognised that Mr and Mrs W are very unhappy with this
recommendation, however they stressed that they feel this
placement would be strongly in A’s best interest. …”
35. The very detailed report from St Piers followed. It included reports from
each discipline including (but not limited to) an Education Report. A was
diagnosed with “generalised seizure disorder; severe learning disability and
challenging behaviour (aggressive and self-injurious behaviour)”. The report
recommended a residential programme offering the benefit of a 24-hour
curriculum with consistent behavioural strategies at a specialist school with
expertise in managing very challenging behaviours in order to meet A’s complex
needs. He needed 1:1 (sometimes 2:1) supervision and support at all times. He was
described as a very sad and anxious young man who had been under-stimulated.
His behavioural problems were said to be long-standing and to have deteriorated
over the previous 15 months during which he had become more impulsive and
aggressive to other people, kicking, biting and throwing objects at people, leading
to his exclusion from school. His self-harming behaviour had also intensified by
the time of the St Piers assessment, characterised by slapping himself constantly or
head-banging. His parents reported that his self-harming behaviour had
deteriorated, the timing of this being shortly after he began his treatment with
Chlorpromazine. At the time of the assessment his parents had to hold his hands
constantly while he was awake to stop him from self-harming.
36. The report described A’s difficulties as a combination of his severe learning
difficulties, severely challenging behaviour and his epilepsy, as well as a result of
poor management of his needs. It recommended that Chlorpromazine be
“
Page 14
discontinued and that the dose of another drug be increased. It also made a number
of other recommendations and concluded in this way:
“A would benefit from a residential placement where an individual
programme can be provided to enhance his play, social interaction,
and self-help skills and to improve sensory integration. A residential
programme would offer the benefit of a 24-hour curriculum, with
consistent behavioural strategies. In view of the severity of A’s
current behaviour difficulties, placement should initially be at a
specialist school with expertise in managing very challenging
behaviours. Whilst the team understand Mr and Mrs W’s
reservations with regard to a residential placement and their
commitment to him within the family, it is felt that this would offer
the most positive way forward in developing A’s skills at this critical
time as a teenager and in transition to adulthood. As A grows, there
is a real concern that behaviours could lead to a serious management
problem if not addressed urgently.”
37. As can be seen, A’s parents were initially opposed to a residential solution.
However, they accepted the recommendations and in October 2002 discussions
took place as to inter-departmental funding for a placement for A and on 10
October joint funding between education and social services was approved.
Between 16 October and 17 December Essex wrote to no fewer than 26 schools
seeking a placement for A, but without success.
38. At a meeting in 2003 professionals acknowledged that his home
environment was having a negative impact on A’s behaviour because he remained
under-stimulated and bored and needed to be supported appropriately. In January
2003 A started to receive respite sessions three mornings a week at the Limbourne
Centre, where he was also offered tuition. He continued to attend sessions at LS as
before. On 10 January A’s solicitors wrote to Essex threatening a possible
application for judicial review on the grounds that A was not receiving an
education in accordance with his SSEN.
39. On 9 February Kisimul School offered a place for A at a cost of £223,589
per annum which Essex agreed to pay. A’s parents accepted the offer on 9 April.
However the placement did not become available until 28 July 2003 because of
construction work at the school. In the meantime at a meeting of professionals on
23 May it was reported that the sessions at LS were not very positive, in that A’s
behaviour had deteriorated in relation to self-injury. The school felt that it was
minding him rather than teaching him. The specialist teacher at Limbourne Centre
also reported that he was finding it difficult to engage A at any meaningful level.
A’s behaviour at home continued to deteriorate.
Page 15
40. On 30 May A’s solicitors sent Essex a letter before action in contemplation
of an application for judicial review alleging that the educational provision for A
was inadequate along with a demand that an appropriate residential placement be
provided immediately and that there be an urgent re-assessment of A’s special
educational needs. They also applied for funding from the Legal Services
Commission (‘LSC’), which was refused on the basis that an appropriate school
place was going to be available from the end of July 2003.
41. A took up his place at Kisimul School, where he progressed well. His
overall health and behaviour improved. He received an appropriate education and
his self-harming very much reduced. He left the school in the summer of 2008 and
now lives in residential therapeutic accommodation in Halstead in Essex. He will
need to spend the rest of his life in this kind of accommodation. He is able to visit
his family regularly. It can thus be seen that, although there were on any view
unfortunate delays between January 2002 and July 2003, his education thereafter
has been a considerable success, albeit at a cost of over £1.2 million to the public
purse.
A’s case in this appeal
42. In para 4 of the amended particulars of claim A accepts that his education at
LS satisfied his rights under A2P1. Although para 46(i) seems to say something
different, A’s case and the oral argument in this appeal focused on the period after
17 January 2002. A further accepts that his education at Kisimul School satisfied
his rights under A2P1 as from 28 July 2003. His essential case is that his rights
were infringed between 18 January 2002 and 28 July 2003. In short his case is that
he received no effective or meaningful education during that time. In this appeal it
was submitted on his behalf that he has a real prospect of establishing that case at a
trial and that his case should be permitted to go to trial, especially since it has been
accepted by the LSC as a test case.
43. A’s case may be summarised in this way. As was recognised by many
professionals at the time, A did not receive even a minimum education for 18 or 19
months. He was provided only with some educational toys, once weekly speech
and language therapy sessions from March 2002, some activity sessions at LS
during May and June 2002 and from 25 June 2002 some planned classroom time at
LS. Then, in and after October 2002 some further activities were made available as
set out above. Whether taken individually or together this did not amount to even a
minimum education and denied him, or deprived him of, the very essence of his
right to education under A2P1.
Page 16
Discussion
44. I would not accept that the case should go to trial because it is said to be a
test case. Where the relevant principles of law are developing, it is sometimes
appropriate to determine those principles (especially where the issue is whether a
duty of care is owed) only after ascertaining the facts at a trial; but this is not such
a case. The relevant principles seem to me to be reasonably clear and the question
is simply whether A has a real prospect of success. That question can be answered
by taking the facts most favourable to A and deciding whether, on that footing, A
could succeed at a trial.
45. Was A deprived of an effective education during the relevant period? I
recognise that if that question is asked by reference only to what he was provided
with between January 2002 and July 2003, it could be answered in the affirmative.
However, as Lord Bingham observed, the correct approach is the pragmatic one
adopted by the ECtHR. It was recognised on all sides that what A required was a
satisfactory long term solution for his various problems. It was also recognised at
an early stage that, in the absence of a considerable improvement in his condition
and behaviour, A could not go back to LS. I agree with the judge and the Court of
Appeal that any other view is unarguable.
46. All the professionals agreed that A required a multi-disciplinary assessment
and that the only place where that could be done was St Piers. Unfortunately it was
not possible for that assessment to be carried out until September 2002. When it
was carried out, it took account of the many and varied problems that beset A and
indeed his family. Thereafter Essex agreed to the recommendations reasonably
quickly, notwithstanding the very considerable costs involved. There were then
further delays because, although Essex wrote to some 26 schools, none of them
was able to assist until Kisimul School made its offer on 9 February 2003. There
was then a yet further delay because of construction work at the school and it was
not until July that A was able to take up his place. Thereafter all was well.
47. It seems to me that, however A’s case is put on the facts, in terms of long
term education for A the only realistic solution was a residential placement of the
kind recommended in September 2002 and achieved in 2003. That was surely the
critical step so far as A was concerned and in that regard it cannot be said that he
was deprived of it. A long term solution was required and it is surely not surprising
that it took some time to achieve. The solution was moreover strikingly successful.
48. Since it was a long term solution that was required, the logic of the case for
A is that he needed a residential solution of the kind recommended by St Piers
immediately and that, since he did not receive it for some 18 months, the failure to
Page 17
provide it was an infringement of his rights under A2P1. If that was what was
required and if he had an absolute right to it under the Convention, it follows that
he was deprived of it between January 2002 and July 2003, that whether Essex was
in any way at fault or open to criticism is irrelevant and that his rights under A2P1
were infringed because his right to education was in fact denied.
49. The case was not, however, put in that way on behalf of A, no doubt
because such a case would be far from the pragmatic approach adopted by the
ECtHR. As Lord Clyde put it in Brown v Stott [2003] 1 AC 681 at 727 F, it must
be remembered that the Convention
“is dealing with the realities of life and it is not to be applied in ways
which run counter to reason and common sense.”
A’s case focuses therefore, not on what was really required, namely the residential
placement eventually recommended by St Piers and arranged and paid for by
Essex, but on the interim measures.
50. The fact that it was not said that there was an infringement of A’s A2P1
right to a long term solution immediately shows that the correct approach is to
consider the problem in the context of the system available and to recognise that
solutions take time and money to put in place, sometimes a considerable amount of
both time and money, as here. In my opinion the same approach should be adopted
to the interim measures. All the professionals were working towards the long term
solution, hoping that it would be achieved sooner rather than later. Some interim
measures were put in place in the period from January 2002 to July 2003. It is said
with apparent force that A was deprived of any meaningful education in that
period and, indeed, that A’s condition and behaviour deteriorated during that
period. Moreover, the account of the facts set out above shows that, at any rate on
A’s case, there were grounds for criticism of Essex in not providing more than
they did.
51. The question is not, however, whether Essex were at fault but whether the
limitations on A’s education impaired the very essence of his right to education
and deprived his right of effectiveness or, as Lord Bingham put it, whether he was
deprived of effective access to education. The answer to that question (or those
questions) must have regard to the fact that the problems were correctly seen to be
short term problems pending a multi-disciplinary 5 day examination of A in order
to achieve a long term solution.
Page 18
52. Even taking A’s case at its highest, considerable efforts were made by LS
and others to assist A in various ways. They were not limited to the somewhat
ineffectual provision of two boxes of educational toys, which were described as
‘not acceptable education’. Essex were faced with considerable difficulties. There
was no home tutor who was available to meet A’s needs. Residential respite care
was not available but A was referred to an occupational therapist. However the
school did provide a significant number of speech therapy and activity sessions
described above. I nevertheless recognise that A’s condition and behaviour
deteriorated in the period before the assessment in September 2002 and that the St
Piers’ report referred to ‘poor management of his needs’.
53. Lord Kerr (whose judgment I have seen in draft) says that the level of A’s
need, as disclosed in the report, finds a stark and sorry contrast with what had
actually been provided for him in the preceding 9 months. I agree that that is so but
the report does not identify any solution other than that A should be provided with
long term residential care, which was not available before that.
54. After delivery of the report and its acceptance by both A’s parents and
Essex there was a further period of waiting, while Essex tried to find a school and,
when they did, while construction work was carried out at the new school. During
that period the activity sessions at LS continued and in January 2003 A started to
receive respite sessions three mornings a week at the Limbourne Centre because
his behaviour at home continued to deteriorate. He was also offered tuition there.
55. The interim efforts made by Essex were far from perfect and it is arguable
that Essex were both in breach of duty under domestic law in various ways and
more generally open to criticism for not doing more than they did but, once one
takes account of the fact that what was needed were interim measures pending the
long term solution, I do not think that A can succeed at a trial. I agree with the
Court of Appeal (and with the judge) that, as Sedley LJ put it at para 12, it is not
possible “to spell out of this unhappy interlude, with its undoubtedly adverse
consequences for both A and his parents, either a failure of the education system or
a denial of access to it.”
56. It is I think relevant to note that, although A’s solicitors were instructed on
14 April 2002, no legal action was taken. It was not suggested during the period
between January and September 2002 that Essex were in breach of statutory duty
or that they were infringing A’s A2P1 rights. On 10 January 2003 the solicitors
threatened a possible application for judicial review on the ground that A was not
receiving an education in accordance with the SSEN. Unsurprisingly no such
application was made because there was no realistic prospect of A returning to LS
at that time. Subsequently, on 30 May 2003 the solicitors sent the letter before
action described above, which came to nothing because the LSC refused funding
Page 19
because a residential place was pending. So far as I am aware, no allegation was
made that Essex were infringing A’s A2P1 rights in the interim.
57. As I see it, viewed in the round, A was not arguably denied the very essence
of his right to education. On the contrary, he was ultimately provided with high
quality education at very considerable cost. I do not accept the submission made
on behalf of A that he was abandoned by the educational authorities after his
parents were persuaded to withdraw him from school. On the contrary, Essex were
doing their utmost to have A properly appraised and thereafter did their utmost to
arrange residential care, for which they paid. While the interim measures are at
least arguably open to some criticism, that is not the question and their
shortcomings do not arguably amount to a denial of A’s right to education. In this
regard I agree with the judgment of Lord Brown which I have seen in draft. I also
agree with Lord Phillips on this part of the case. It follows that I would dismiss the
appeal.
58. This analysis makes it unnecessary to consider the limitation point.
However, I agree that the appeal should be dismissed on that ground too, for the
reasons given by Lord Kerr.
Page 20
APPENDIX
Summary of the 1996 Act as set out by the judge:
3. By section 312 a child has ‘special educational needs’ if he ‘has a learning
difficulty which calls for special educational provision to be made for him’. A
child has a ‘learning difficulty’ if, amongst other things, he ‘has a significantly
greater difficulty in learning than the majority of children of his age’ or ‘he has a
disability which either prevents or hinders him from making use of educational
facilities of a kind generally provided for children of his age in schools within the
area of the local education authority’.
4. By section 321 of the Act a local authority is to exercise its powers with a view to
securing that of children for whom they are responsible, they identify those who
have special educational needs and for whom it is necessary for the authority to
determine special educational provision. The local authority is ‘responsible’ for,
amongst others, children within the authority’s area who either attend a school
maintained by the authority or attend an independent school with fees paid for by
the authority.
5. Pursuant to section 323, where the Local Education Authority (‘LEA’) considers a
child may fall within section 321, they are required to make an assessment of his
needs, after having taken into account any parental representations. Under section
329, a parent may also initiate the process, by requesting an assessment under
section 323. If such a request is made, the authority must comply with it if no such
assessment has been made within the previous six months and it is necessary for
the authority to make an assessment under section 323. Under section 329A (as
inserted by section 8 of the Special Educational Needs and Disability Act 2001),
the head teacher of a school may also request an assessment.
6. If as a result of an assessment under section 323 the local authority decides it is
necessary for the local authority to make special educational provision for the
child, then by section 324 the authority must make and maintain a Statement of
Special Educational Needs (‘SSEN’). Section 324 provides for the contents of
such a statement. In particular, it must: give details of the educational needs and
the provision required to meet them; specify the type of school or institution
which the authority considers appropriate to meet those needs; and name any
school or institution which is considered to be appropriate. The Education (Special
Educational Needs) (England) (Consolidation) Regulations 2001 (SI 2001/3455)
(the Regulations) prescribe in more detail the form and content of the statement.
7. The Regulations also make detailed provision for the assessment process. They
specify (at regulations 7 to 11) that the authority must seek: (a) advice from the
child’s parent; (b) educational advice (usually from the head teacher of the child’s
school); (c) medical advice from the health authority; (d) advice from an
educational psychologist employed by the authority; (e) advice from social
services; and (f) any other advice which the authority considers appropriate for the
purposes of arriving at a satisfactory assessment. The authority must also take into
account any evidence submitted by or at the request of the child’s parent. Once the
Page 21
assessment is complete, the authority must either provide the parents with a copy
of a proposed statement of special educational needs (or amended statement if the
child already has one) within 2 weeks, or inform them that they have decided not
to make a statement or amend an existing statement within the same time period
and inform the parents of their right to appeal (regulation 17).
8. If a proposed statement has been issued, there then follows an 8 week period
during which the parent has the right to make representations as to the content of
the Statement (Schedule 27 of the Act and regulation 17). At the end of the 8
week period, the authority must issue a complete statement unless certain defined
exceptions apply.
9. Once a statement is made, the local authority has a statutory obligation to arrange
that the special educational provision specified is made for the child – section
324(5). The Statement must also be reviewed annually (regulation 18 of the
Regulations).
10. Parents are given rights of appeal to the Special Educational Needs and Disability
Tribunal (‘SENDIST’) against decisions made by the authority see eg sections
329(2), 325(3) and 326.
11. Appeals from the SENDIST lie to the High Court on a point of law (Tribunals and
Inquiries Act 1992 section 11, as amended by section 181 of the Education Act
1993): Subsequently replaced by the procedure under the Tribunals, Courts and
Enforcement Act 2007.
12. By section 19, a local authority is under a duty to make arrangements for the
provision of suitable education at school or otherwise than at school for those
children of compulsory school age who, by reason of illness, exclusion from
school or otherwise, may not for any period receive suitable education unless such
arrangements are made for them. This duty arises only where it is not reasonably
possible for a child to take advantage of any existing suitable schooling (R(G) v
Westminster City Council [2004] EWCA Civ 45; [2004] 1 WLR 1113).
Page 22
LORD PHILLIPS
Introduction
59. The appellant, “A”, is a young man who was born on 3 July 1989. He
claims that during a period of 18 months, starting in January 2002, when he was 12
years old, he was denied the right to education guaranteed by Article 2 of the First
Protocol (“A2P1”) to the European Convention on Human Rights (“the
Convention”). He seeks a declaration and damages under section 7(1)(a) of the
Human Right Act 1998 (“HRA”). His claim was dismissed by Field J on 13 July
2007 under CPR Part 24 on the ground that it had no reasonable prospect of
success. At the same time an application on his behalf under section 7(5)(b) of the
HRA for an extension of the one year time limit for bringing such a claim on the
grounds that this would be equitable was dismissed by Field J [2007] EWHC 1652
(QB). On 16 April 2008 the Court of Appeal dismissed his appeal against
summary judgment and did not deal with the time bar point [2008] EWCA Civ
364. A appeals to this Court against each of the decisions against him.
60. A is autistic and has a severe learning disability. He also has a severe
communication disorder and challenging behaviour. He suffers from epilepsy,
frequently having 10-15 short epileptic fits a day, despite medication. He is doubly
incontinent, has no concept of danger and requires constant supervision. He is
reliant on adults for his every need. Under the Education Act 1996 (“the Education
Act”) he had, at the material time special educational needs.
61. A’s claim was brought together with similar claims by three other young
people with special educational needs. Their claims were also out of time. They
suffered the same fate as A’s claim. Only A has appealed, with support from the
Legal Services Commission on the basis that his claim should be treated as a test
case. The National Autistic Society (“NAS”) has been given permission to
intervene and its submissions of principle have been to the same effect as those
advanced on behalf of A.
The principal issues
62. A’s case has been advanced by Mr Nicholas Bowen QC. His submissions
were clearly set out in his written case and supported in oral argument, albeit that
this ranged rather wider than his case at times. His primary contention has been
that A2P1 imposes on the State an absolute obligation to provide effective
education to a minimum standard for a child with special educational needs. He
Page 23
submits that this obligation is recognised by the Education Act and makes
submissions as to how the duties under A2P1 and the Education Act have to be
complied with by a local authority.
63. The principal issues have been agreed as follows in the Statement of Facts
and Issues:
“(i) Does Article 2 Protocol 1 guarantee a child an absolute
minimum standard of education? If so, how is to be
measured?
(ii) If A2P1 does guarantee an absolute minimum standard of
education how, in a case where a child has a statement of
special educational need under EA96, and against what criteria,
is an acceptable minimum to be judged? Should (as the
Appellant argues) the breach contended for be judged on the
same basis as the requirements of domestic law whereby an
education authority is obliged to make and maintain the
provision in part 3 of the statement as contained in the duty in
section 324 EA96?”
The subsidiary issues
64. The subsidiary issues have been agreed as follows in the Statement of Facts
and Issues:
“(iii) Can Essex be said to have denied the Appellant’s right to an
education under A2P1 on the facts of this case?”
(iv) Did Field J err in refusing to extend time for the bringing of
this claim?”
The facts
65. Most of the material facts in this case are not in dispute. They have been set
out in detail in the judgments of Lord Clarke and Lord Kerr, and I need not repeat
them. Their essence can be summarised as follows. A’s special needs were very
demanding. By January 2002 LS, the State maintained special primary school
which A attended, could no longer cope with the demands made by A’s behaviour.
Page 24
He was removed from LS to spend his days at home and ceased to receive the
education that was needed to cater for his special needs. Indeed he was provided
with very little support that could be described as educational at all. It took 18
months to arrange for and carry out a medical assessment of A’s current needs and
to find a residential place for him in a special school where those needs could be
met.
The problem
66. Special educational needs have been defined as a learning difficulty. A
primary role of education is imparting knowledge. Ability to receive knowledge,
or to learn, varies according to cognitive ability and some children are unable to
keep up with their classmates. Their special educational needs may require special
educational provision. But there are some barriers to learning that have nothing to
do with cognitive ability. The sensory deprivation of blind or deaf children inhibit
their learning in a conventional school. They also have special educational needs.
A had profound learning disability, but this was exacerbated by the physical and
psychiatric problems that I have described above. He was and is profoundly
disabled. From the age of six it was possible to cater for his needs at LS School, a
community special day school for children with severe learning difficulties. As he
approached the age of 12, however, his behaviour deteriorated to the extent that
the school was no longer able adequately to protect him from himself and the other
pupils from him. This was the reason why he had to leave the school, rather than
any cognitive inability to cope with the teaching.
67. At this stage an assessment of A’s medical and psychiatric problems was
necessary before any long term plans could be made for his continuing education.
This involved an initial assessment, followed by a five day residential medical
assessment by an interdisciplinary team of professionals. It did not prove possible
to arrange for this assessment to be carried out until 8 months after his exclusion
from LS. A further ten months elapsed before A could be placed in Kisimul
School, a special residential school where he was able to receive the 24 hour a day
supervision that he needed. He has now finished his schooling, but his needs are
such that he will have to live in residential therapeutic accommodation all his life.
68. A’s predicament is an extreme example of a widely experienced problem,
as evidence placed before the Court by NAS has demonstrated. One child in a
hundred suffers from an autism spectre disorder (“ASD”) of some kind. ASD is an
umbrella term which covers autism, Asperger syndrome and a range of other
disorders. Many of these children are successfully educated in the mainstream
educational system, but many are not. “Make school make sense: Autism and
education: the reality for families today” published by NAS in 2006 recorded at
p25 that one in five children with autism have been excluded from school, 67%
Page 25
more than once and 16% more than ten times. 24% of excluded children are
excluded permanently.
69. NAS has placed in evidence a statement of Gillian Roberts, the Principal of
the Robert Ogden School in support of the proposition that with sufficiently
trained and experienced staff it is possible for schools to meet the needs of children
across the autism spectrum. The Robert Ogden School is owned by NAS. It is the
largest independent special school for children and young people who have been
diagnosed with ASD. It currently has 105 pupils and a staff of 282. The school is
residential and an Ofsted report of September 2008 commends it highly,
commenting that the quality of the curriculum is outstanding because it is designed
effectively to meet individual pupils’ needs.
70. The evidence adduced by NAS, and the facts of this case, suggest that there
are insufficient trained staff in the education system and insufficient special
schools of the requisite quality and expertise to cater satisfactorily for the demands
made by children with ASD.
A’s case
71. A2P1 provides:
“Right to education
No person shall be denied the right to education. In the exercise of
any functions which it assumes in relation to education and to
teaching, the state shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions”.
Mr Bowen’s first submission was that implicit in the provision that no person shall
be denied the right to education was the positive obligation on the State to provide
a minimum of effective education for each individual child. Where the child had
special educational needs the State had to cater for those needs to the extent
necessary to achieve the minimum standard of education, otherwise the education
would not be effective. Mr Bowen described this repeatedly in his printed case as
an economic and social right. He submitted that this was an absolute right. Failure
to provide the minimum standard of education, or delay in providing it, could not
be excused on the ground of lack of resources.
Page 26
72. Mr Bowen described the case law in this area as “undeveloped”. He
nonetheless sought to derive support for his submissions from the decision of the
Strasbourg Court in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252. The
applicants in that case were French speaking Belgian parents who contended that
article 2 entitled their children to be educated in French. The Court observed, at p
280:
“3. By the terms of the first sentence of this article, ‘no person
shall be denied the right to education’. In spite of its negative
formulation, this provision uses the term ‘right’ and speaks
of a ‘right to education’. Likewise the preamble to the
Protocol specifies that the object of the Protocol lies in the
collective enforcement of ‘rights and freedoms’. There is
therefore no doubt that article 2 does enshrine a right.”
73. Mr Bowen relied on this passage. He also relied on the following statement,
at p 281, in support of his contention that education must cater for the special
educational needs of the individual child in order to be “effective”:
“4….
For the ‘right to education’ to be effective, it is further necessary
that, inter alia, the individual who is the beneficiary should have the
possibility of drawing profit from the education received”.
74. Mr Bowen drew attention to the fact that Lord Bingham had referred to the
right to “effective” access to educational facilities in A v Head Teacher and
Governors of Lord Grey School [2006] UKHL 14; [2006] 2 AC 363 at para 24 and
to the following statement in the judgment of the Court of Appeal in R (Holub) v
Secretary of State for the Home Department [2001] 1 WLR 1359, 1367, at para
25, quoting from Lester & Pannick, Human Rights Law and Practice (1999), para
4.20.6:
“As regards the right to an effective education, for the right to
education to be meaningful the quality of the education must reach a
minimum standard.”
75. When these passages are read in their context they do not support the
proposition that A2P1 imposes on contracting States a positive obligation to
provide education that caters for the special needs of the small, if significant,
portion of the population which is unable to profit from mainstream education. On
Page 27
the contrary the authorities assume, correctly, that all contracting States have a
system of education and limit the positive obligation imposed by A2P1 to
regulating education in such a way as to give access without discrimination to that
system.
76. Thus para 3 of the judgment in the Belgian Linguistic case continues, at pp
280-281:
“The negative formulation indicates, as is confirmed by the
preparatory work, that the contracting parties do not recognise such a
right to education as would require them to establish at their own
expense, or to subsidise, education of any particular type or at any
particular level. However, it cannot be concluded from this that the
state has no positive obligation to ensure respect for such a right as is
protected by article 2 of the Protocol. As a ‘right’ does exist, it is
secured, by virtue of article 1 of the Convention, to everyone within
the jurisdiction of a contracting state. To determine the scope of the
‘right to education’, within the meaning of the first sentence of
article 2 of the Protocol, the court must bear in mind the aim of this
provision. It notes in this context that all member states of the
Council of Europe possessed, at the time of the opening of the
Protocol to their signature, and still do possess, a general and official
educational system. There neither was, nor is now, therefore, any
question of requiring each state to establish such a system, but
merely of guaranteeing to persons subject to the jurisdiction of the
contracting parties the right, in principle, to avail themselves of the
means of instruction existing at a given time. The Convention lays
down no specific obligations concerning the extent of these means
and the manner of their organisation or subsidisation. In particular,
the first sentence of article 2 does not specify the language in which
education must be conducted in order that the right to education
should be respected. It does not contain precise provisions similar to
those which appear in articles 5(2) and 6(3)(a) and (e). However, the
right to education would be meaningless if it did not imply, in favour
of its beneficiaries, the right to be educated in the national language
or in one of the national languages, as the case may be.”
While the last sentence might suggest that A2P1 imposes positive requirements as
to the education that a State must provide, it can also be read as dealing with
access to an existing system of education, for this is bound at least to include
education in a language of the State.
Page 28
77. The statement in para 4 of the Belgian Linguistic case, at p281, that the
individual who is the beneficiary of education should have the possibility of
drawing profit from the education received did not impose an obligation to make
special provision for those with special needs. It dealt with the obligation to ensure
official recognition of studies that had been completed.
78. The passage of his judgment in which Lord Bingham referred to “effective
access” in the Lord Grey School case reads:
“24 The Strasbourg jurisprudence, summarised above in paras 11-13,
makes clear how article 2 should be interpreted. The underlying
premise of the article was that all existing member states of the
Council of Europe had, and all future member states would have, an
established system of state education. It was intended to guarantee
fair and non-discriminatory access to that system by those within the
jurisdiction of the respective states. The fundamental importance of
education in a modern democratic state was recognised to require no
less. But the guarantee is, in comparison with most other Convention
guarantees, a weak one, and deliberately so. There is no right to
education of a particular kind or quality, other than that prevailing in
the state. There is no Convention guarantee of compliance with
domestic law. There is no Convention guarantee of education at or
by a particular institution. There is no Convention objection to the
expulsion of a pupil from an educational institution on disciplinary
grounds, unless (in the ordinary way) there is no alternative source of
state education open to the pupil (as in Eren v Turkey (Application
No 60856/00) (unreported) 7 February 2006). The test, as always
under the Convention, is a highly pragmatic one, to be applied to the
specific facts of the case: have the authorities of the state acted so as
to deny to a pupil effective access to such educational facilities as the
state provides for such pupils?”
79. These passages make it plain that the value of the right conferred by A2P1
depends upon the system of education that is in place in the particular State
concerned. Volume VIII of the Collected Edition of the “Travaux Préparatoires”
of the European Convention on Human Rights (1985) explains why, uniquely, a
negative formulation was used to describe the right in A2P1:
“While education is provided by the State for children, as a matter of
course, in all member States, it is not possible for them to give an
unlimited guarantee to provide education, as that might be construed
to apply to illiterate adults for whom no facilities exist, or to types or
Page 29
standards of education which the State cannot furnish for one reason
or another”.
Contracting States that provide facilities for the education of adult illiterates are
obliged by A2P1 to ensure that adult illiterates have access to those facilities.
Those States that do not have such facilities are not required by A2P1 to establish
them.
80. The cost of providing for the needs of a child such as A are enormous. The
fees charged for providing him with a place at Kisimul were £223,589 a year. It
may well be that some contracting States are not able to contemplate expenditure
on this scale to cater for the needs of an individual child. It is plainly highly
desirable that a State should make provision for the educational needs of those
who are disabled, but the signatories to A2P1 did not commit themselves to
establishing educational facilities that did not exist in their countries.
81. For these reasons I reject Mr Bowen’s first submission. A2P1 does not
impose a positive obligation on contracting States to provide effective education
for children who have special educational needs.
82. Mr Bowen’s second submission was linked to the first. The starting point
was the statement of Lord Bingham at para 24 of the Lord Grey School case. A2P1
guarantees “fair and non-discriminatory access” to the system of education
maintained in the particular state. The system of education maintained in England
and Wales requires that provision is made for children with special educational
needs. This was the system to which A2P1 guaranteed access. The system was one
which provided the measure of the minimum standard of effective education that
had to be provided for children with special educational needs.
83. Mr Bowen placed at the heart of his argument the requirement of section 19
of the Education Act:
“(1) Each local education authority shall make arrangements for
the provision of suitable … education at school or otherwise
than at school for those children of compulsory school age
who, by reason of illness, exclusion from school or
otherwise, may not for any period receive suitable education
unless such arrangements are made for them.
(6) In this section ‘suitable education’, in relation to a child or
young person, means efficient education suitable to his age,
Page 30
ability and aptitude and to any special educational needs he
may have.”
This was an unqualified obligation. He also relied on the obligation of a local
authority to arrange that the special educational provision specified in a statement
of special educational needs is made for the child – section 324(5)(a)(i) of the
Education Act. He submitted that financial constraints were no answer to these
obligations. There had been a failure to satisfy the statutory obligations under the
Education Act and this constituted a denial of A’s right to education under A2P1.
The obligations were absolute; there was no defence of “all reasonable
endeavours”.
84. The Lord Grey School case shows that a failure to satisfy the educational
requirements of domestic law will not automatically constitute an infringement of
A2P1. But in that case the House of Lords held that the claimant had been
provided with education that satisfied the requirements of A2P1. He was not
deprived of access to the minimum standard of education provided by the State. In
this case, during the 18 month period, there was a failure to comply with the
requirements of the Education Act and a failure to provide any significant
education to A. Does it follow that there was an infringement of A2P1?
85. It does not. It is not right to equate a failure to provide the educational
facilities required by domestic law with a denial of access to education under
A2P1. The reason why A was, for 18 months, denied the very special schooling
that his needs required was that there was not immediately available the resources
required to carry out the medical assessment that he needed nor, thereafter, a place
in a school that would satisfy his needs. Field J analysed the position in this way at
para 101 of his judgment. The reality is that, in a case such as this, a local
education authority may be unable, through lack of resources, immediately to
satisfy the obligations imposed by section 19 of the Education Act.
86. Article 2 guarantees the right to “to avail themselves of the means of
instruction existing at a given time”; “the right of access to educational
establishments existing at a given time.”- paras 3 and 7,at pp 281 and 292, of the
Belgian Linguistic case. Insofar as a State’s system of education makes provision
for children with special needs, Article 2 guarantees fair and non-discriminatory
access for those children to the special facilities that are available. But if the
facilities are limited, so that immediate access cannot be provided, the right of
access must have regard to that limitation. Thus the right of access to education
conferred on A by A2P1 had to have regard to the limited resources actually
available to deal with his special needs. These caused the delay in catering for his
special needs. In these circumstances that delay did not constitute a denial of his
right to education.
Page 31
87. There was some debate as to whether Field J was correct to attribute all of
the 18 month delay in placing A at Kisimul to the limited resources available. A’s
case was not advanced, however, on the basis that there had been a failure to take
all reasonable steps to cater for his needs. It was advanced on the basis that A2P1
imposed an absolute obligation to cater for them, and to do so timeously. Where
there has been maladministration, resulting in a failure to provide access to
education for a period, there can be difficulty in deciding whether this is so
significant as to amount to a denial of education in breach of A2P1. Had part of the
delay in this case been caused by maladministration I would not, on the facts of
this case, have held that this amounted to a denial of A’s right to education under
A2P1. In this respect I agree with the reasoning of Lord Brown at paragraph 128-
132 and Lord Clarke at paragraph 57.
88. For these reasons I reject Mr Bowen’s second submission.
89. In the course of submissions, encouraged perhaps by interventions from the
court, there was some discussion about the paucity of educational provision that
was afforded to A during the 18 months that he was out of school, living with his
parents. His special educational needs could not be met at home, as his assessment
ultimately showed, but it is possible, indeed likely, that the failure over 18 months
to meet those needs might have been mitigated by the provision of significantly
more educational assistance than was in fact provided. I agree with Lord Kerr that
there might, dependent upon facts that have not been explored, be a case for saying
that, during this 18 month period, A was deprived of such educational provision as
could have been made available and that this deprivation violated A2P1. In this I
also agree with Lady Hale.
90. Such a case would be fact specific and would not raise the issues of
principle that have been pursued on A’s behalf. A’s primary case has not been that
he was denied access to what was available but that A2P1, coupled with domestic
law, imposed an absolute obligation under the HRA to provide what A needed. I
do not think that it would be desirable to permit A an extension of time to pursue
this alternative case, which, even if successful, would resolve no issue of principle
and be unlikely to sound in significant damages.
91. There has been considerable debate, here and below, as to the implications
of the following observation of Lord Hoffmann in the Lord Grey School case at
para 61:
“The correct approach is first to ask whether there was a denial of a
Convention right. In the case of article 2 of the First Protocol, that
would have required a systemic failure of the educational system
Page 32
which resulted in the respondent not having access to a minimum
level of education. As there was no such failure, that is the end of the
matter.”
That observation is not of general application. It was made in the context of a case
where a child was excluded from his school, but not from the educational system
as a whole, which was held by the majority to have provided him with the “basic
minimum of education available under the domestic system” – para 57. Lord
Hoffmann’s observation does not cover the position where a pupil is denied access
to the system, nor to a case such as this where a pupil has special needs that can
only be satisfied by special educational provision.
92. This case has highlighted a problem for parents of children with severe
disabilities. If there is not currently available in the system the special educational
facilities that their child needs and that domestic law requires, a court may be
reluctant to make a mandatory order that such facilities be provided. The Lamb
Inquiry into Special Educational Needs and Parental Confidence, which was
commissioned by the Government, has called for “major reform of the current
system”. This may well be highly desirable. So far as A2P1 is concerned, it takes
the system as it finds it.
Disposal
93. I would answer the first two agreed issues by holding that A2P1 does not
guarantee that a child with special educational needs will receive the special
educational provision required by the Education Act. I would answer the third
issue by saying that the failure during the period of 18 months to cater for A’s
special needs did not constitute a denial of A’s right to education under A2P1. I
would answer the fourth issue, “no”, thereby precluding A from pursuing a claim
that he was denied such educational provision as was available in the 18 month
period, albeit that this would not have been adequate to meet his special needs.
94. For these reasons I would dismiss this appeal.
LADY HALE
95. The main focus in this case has always been on the period from 18 January
2002 to 28 July 2003. During those 18 months, a child (aged 12 when it started and
14 when it ended) with very special educational needs was (a) denied access to the
schooling to which he was legally entitled in domestic law, and (b) supplied with
Page 33
hardly anything to make up for it. The issues are (i) whether there is a triable case
that this was also a breach of his right to education under article 2 of the First
Protocol of the European Convention on Human Rights, and (ii) whether the judge
erred in refusing to extend time for bringing the claim. On issue (i), I agree with
Lord Kerr and Lord Phillips that there is indeed such a triable issue. On issue (ii), I
am in a minority of one.
The Right to Education
96. We are asked to decide whether Article 2 of Protocol 1 guarantees a child
an absolute minimum standard of education and, if so, how this is to be measured.
My answer is that we have been referred to no authority in Strasbourg which has
met this question head-on. We cannot therefore be clear that the answer is “yes”;
but equally we cannot be clear that the answer is “no”. Fortunately, however, we
do not need to answer this question in order to decide this case.
97. In its most recent decision on Article 2 of Protocol 1, Oršuš v Croatia, App
no 15766/03, 16 March 2010, at para 146, the Grand Chamber repeated the basic
proposition derived from all the cases dating back to the Belgian Linguistic case:
“The right to education, as set out in the first sentence of Article 2 of
Protocol No 1, guarantees everyone within the jurisdiction of the
Contracting States ‘a right of access to educational institutions
existing at a given time’, but such access constitutes only a part of
the right to education. For that right ‘to be effective, it is further
necessary that, inter alia, the individual who is the beneficiary
should have the possibility of drawing profit from the education
received, that is to say, the right to obtain, in conformity with the
rules in force in each State, and in one form or another, official
recognition of the studies which he has completed’ (see Belgian
Linguistic Case (No 2) (1968) 1 EHRR 252, paras 3 – 5; Kjeldsen,
Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para
52; and Leyla Şahin v Turkey (2005) 44 EHRR 99, para 152).”
98. Undoubtedly, it is an important part of making the right effective that pupils
and students are entitled to the certificates or other qualifications which they have
earned as a result of the studies which they have been able to complete. But the
Grand Chamber said that this was ‘inter alia’, thus acknowledging that there may
be other rights entailed in making the basic right of access effective. The Chamber
in Oršuš, in their Judgment of 26 June 2008, at para 58, stated that:
Page 34
“The right to education is principally concerned with primary and
secondary schooling and for this right to be effective the education
provided must be adequate and appropriate.”
Oršuš was concerned with the segregation of Roma children into separate classes,
ostensibly because their Croatian was not good enough for them to take part in
classes with the other children. The Chamber held that their education was
nevertheless adequate and appropriate. The Grand Chamber did not consider
Article 2 of the first Protocol on its own, because it concluded that the segregation
was unjustified racial discrimination.
99. I accept, therefore, that the European case law does not at present lay down
any minimum standards for what must be provided. But the possibility that it will
do so in future certainly cannot be ruled out. Despite the wide margin of
appreciation given to Member States to design and regulate their own systems of
education, some failures may be so serious as to amount to a denial of the right.
Lester, Pannick and Herberg, Human Rights Law and Practice, 3rd edition, at para
4.20.1, for example, comment that article 2 would not be violated by the inclusion
or exclusion of a particular subject within the National Curriculum, “unless the
subject’s addition or omission were to be so serious as to preclude the provision of
proper education”. We cannot be sure that they are wrong.
100. Be that as it may, I have never dissented from the basic proposition laid
down by Lord Bingham in A v Head Teacher and Governors of Lord Grey School
[2006] UKHL 14, [2006] 2 AC 363, at para 24, that the primary purpose of article
2 was to guarantee fair and non-discriminatory access to the established system of
state education within the member state in question. Thus,
“The test, as always under the Convention, is a highly pragmatic one,
to be applied to the specific facts of the case: have the authorities of
the state acted so as to deny to a pupil effective access to such
educational facilities as the state provides for such pupils?”
In that case, I disagreed only in the application of that test to the particular facts.
This case is very different.
101. I agree with Lord Justice Sedley, in this case at [2008] EWCA Civ 364,
para 10, that there is a “possible tension” between Lord Bingham’s reference to
“such educational facilities as the state provides for such pupils” and Lord
Page 35
Hoffmann’s reference to “the basic minimum of education available under the
domestic system” (para 57) and later to “a systemic failure of the educational
system which resulted in the respondent not having access to a minimum level of
education” (para 61). I do not think that there is any requirement that the failure be
“systemic” in the usual sense of applying throughout the whole system. An
individual child who is denied access can complain even though the system as a
whole is working reasonably well. In Timishev v Russia (2005) 44 EHRR 776,
Article 2 was breached because the applicant’s children were denied access to their
school for an invalid reason. Lord Hoffmann’s words have to be seen in the
context of the facts of the Lord Grey case. The school had excluded the pupil but
the system had then offered him alternative tuition – in my view this was a denial
of the education provided for pupils such as him, in the particular circumstances of
that case, but in the view of the majority, the system as a whole had not let the
pupil down. If it had, the fact that the system had not failed other pupils would not
have prevented their finding a breach in A’s case.
102. More relevant for our purposes is the possible tension between what is
provided for “such pupils” and the “basic minimum”. I disagree with Lord Justice
Sedley’s view that this tension does not affect the present case, because it is one of
total exclusion. The question has to be, “exclusion from what?”. This is where the
fact that, unlike the pupil in Lord Grey, the appellant has such very special
educational needs comes into play. The effect of exclusion for “such pupils” can
be so much more serious than for other children. A denial of access which would
have no long term impact upon an ordinary pupil may be catastrophic for a pupil
with special needs. I respectfully endorse everything which Lord Kerr so movingly
says, in para 139 of his judgment, about the particular meaning and importance of
education in this case.
103. This country has for a long time now recognised that disabled children have
a right to education. There was a time, before the Education (Handicapped
Children) Act 1970, when children who were suffering from a severe disability of
mind could be declared “unsuitable for education at school” (see Schedule 2 to the
Mental Health Act 1959). There was then no duty upon local education authorities
to provide for them. But under the 1970 Act it was accepted that no child should
be labelled ineducable. As the Warnock Report, The Report of the Committee of
Enquiry into the Education of Handicapped Children and Young People (1978,
Cmnd 7212, para 1.7) explained:
“Though the general concept of education may remain constant, its
interpretation will thus be widely different in the case of different
children. There is in our society a vast range of differently disabled
children, many of whom would not have survived infancy in other
periods of history. In the case of the most profoundly disabled one is
bound to face the questions: Why educate such children at all? Are
Page 36
they not ineducable? How can one justify such effort and such
expense for so small a result? Such questions have to be faced, and
must be answered. Our answer is that education, as we conceive it, is
a good, and a specifically human good, to which all human beings
are entitled. There exists, therefore, a clear obligation to educate the
most severely disabled for no other reason that that they are human.
No civilised society can be content just to look after these children: it
must all the time seek ways of helping them, however slowly,
towards the educational goals we have identified. To understand the
ways in which help can be given is to begin to meet their educational
needs. If we fail to do this, we are actually increasing and
compounding their disadvantages.”
104. Our present system of identifying and providing for the special educational
needs of disabled children, contained in the Education Act 1996, is the outcome of
the recommendations of the Warnock Report, first legislated in 1981, and based on
that philosophy. This is not to suggest that everything is rosy in the education of
children with special educational needs. The interveners’ case shows very clearly
that it is not. The routes to achieving that basic human rights philosophy are
controversial (as is shown in Haines and Ruebain (eds), Education, Disability and
Social Policy, forthcoming). But that the education system in this country
recognises the right of any child, however disabled in mind or body or both, to an
education “suitable to his age, ability and aptitude and to any special educational
needs he may have” (see Education Act 1996, s7) is not controversial.
105. The European Court of Human Rights, concerned as it is with fair and nondiscriminatory access to education, recognises that this may mean that different
children have to be educated in different ways. To return to the Grand Chamber in
Oršuš, at para 149:
“According to the Court’s well-established case-law, discrimination
means treating differently, without an objective and reasonable
justification, persons in relevantly similar situations. . . However,
Article 14 does not prohibit a member State from treating groups
differently in order to correct ‘factual inequalities’ between them;
indeed in certain circumstances a failure to attempt to correct
inequality through different treatment may in itself give rise to a
breach of Article 14 . . .”
106. The appellant has not pursued a case under Article 14 before this Court. I
was rather surprised to learn that it was not suggested to the Court of Appeal that it
took longer to find new places for children with special educational needs who
were excluded from school than it did for other children (see [2008] EWCA Civ
Page 37
364, para 18). The appellant was out of school, and deprived of any real
educational input, for more than 18 months. If that is at all typical of the length of
time for which ordinary children are kept out of school, it is a sorry state of affairs.
For very out of the ordinary children, such as this child, it can be catastrophic. This
could well be a case in which a failure to treat such a child better than other
children amounted to discrimination. The question then would be whether this
could be justified, precisely because of the very real difficulties in finding a
suitable placement for him.
107. I say all this, not to adjudicate upon an Article 14 claim which is not before
us, but to point out that the content of the right to education may indeed differ
from child to child, as Lord Bingham indicated in the Lord Grey case. A Roma
child may require special help to learn the Croatian language (but that does not
mean that he should be arbitrarily segregated in a different class simply because he
is Roma). A disabled child may require two to one attention even though most
children do not. Just as the Croatian system attempted, but clumsily, to cater for
the special needs of the Roma children, so does our system make elaborate and
some may think generous attempts to cater for the special needs of disabled
children.
108. The question then is whether there is a triable case that the appellant was
unjustifiably denied access to the education which our system provides for
children like him. I have to accept, from the Lord Grey case, that the mere fact of
illegality in domestic law is not enough. But his case goes far deeper than that. The
appellant cannot, and does not, complain about the excellent schooling which was
eventually provided for him. But he does complain, first, that not enough was done
to prevent things getting to such a pitch that his first school was unable to cope
with him. Prevention is always better than cure, no more so than in catering for
special educational needs. Secondly, he complains that he should not have been
denied any real education for the 18 months that he was out of school. Should it
have taken the authorities so long to assess his needs and find the right place?
More importantly, in my view, should they have left him without any alternative
while that was taking place?
109. These are factual issues which have not been fully investigated. If a new
place could have been found sooner, or if there is more that could reasonably have
been done for the appellant in the meantime, I find it hard to see how the effective
denial of any education could be justified. What legitimate aim could it serve and
how could it be proportionate to such an aim?
110. I am perfectly prepared to assume that the local authority meant no harm.
But that is not the test. A local authority which interferes unjustifiably in family
life may mean no harm, indeed may mean nothing but good, but it has still acted
Page 38
incompatibly with human rights. A prison governor who relies upon a mistaken
interpretation of the law to keep a prisoner longer than the law in fact allows may
mean no harm, but he has still acted incompatibly with the prisoner’s human
rights. A hospital or care home which detains a patient or a resident for her own
good without complying with the elaborate safeguards laid down in the Mental
Capacity Act 2005 may mean nothing but good, but it has still acted incompatibly
with the patient or resident’s human rights. We have to protect people from wellmeaning interferences with their human rights by public authorities as much as
from those who mean them ill. Indeed, I would assume that most public authorities
in this country do mean well and certainly that Essex County Council does so. But
that is not the point.
111. The second question put to us, about the nature of the minimum obligation,
assumed an affirmative answer to the first, which we need not answer. The third
question put to us was whether Essex can be said to have denied the Appellant’s
right to an education on the facts of this case. The answer is that we do not know
until the facts are tried. In agreement with Lord Phillips and Lord Kerr, and for the
fuller reasons given by Lord Kerr, I would allow the appeal on that ground.
The limitation issue
112. There is little to say about this as the other members of the Court can find
no error of principle in the judge’s exercise of his discretion. There is still very
little case law on the principles applicable to limitation in human rights cases and
so I think it right to express my reservations about the approach adopted by the
judge and by others in this Court.
113. Proceedings under the Human Rights Act must be brought within a year,
beginning with the date on which the act complained of took place or such longer
period as the court considers equitable having regard to all the circumstances (s
7(5)). Where there is a continuing violation, as is alleged here, time runs from
when the breach was ended rather than when it began (Somerville v Scottish
Ministers [2007] UKHL 44). The alleged breach ended on 28 July 2003. The year
therefore expired on 27 July 2004. The proceedings were begun on 5 May 2005,
just over nine months later. This is not a long delay in making a claim which
relates to the past rather than seeks a remedy for the future.
114. “Equitable” must mean fair to each side. There is nothing to suggest that the
delay caused any prejudice to the local authority. The letter before action was sent
on 6 February 2004, well within the limitation period. The evidence is mostly
documentary but it is also unlikely that the professionals’ memories of this very
Page 39
unusual child will have dimmed over the ensuing years. A fair trial of the factual
issues will still be possible.
115. On the other side of the coin, the action would almost certainly have been
started within the limitation period had funding not been refused in March 2004. It
was not until a year later that funding was approved. This was because of the high
public interest in the legal issues despite the fact that the appellant was now back
at school. Difficulties with funding are often regarded as a good reason to extend
time unless there is real prejudice to the other side.
116. The judge placed at the forefront of his account of the relevant legal
principles that “there is a significant public interest in public law claims against
public bodies being brought expeditiously” (para 119). That is of course true in
judicial review, when remedies are sought to quash administrative decisions which
may affect large numbers of people or upon which other decisions have depended
and action been taken. It is normally a prospective remedy, aiming not only to
quash the past but also to put right the future. Expedition is less obviously
necessary in a claim for a declaration in vindication of the claimant’s human
rights, upon which nothing else depends, or of a claim for damages. These are
retrospective remedies, aimed at marking or compensating what has happened in
the past. Public authorities are no longer in any different position from other
defendants in the general law of limitation (see limitation Act 1980, s 37(1)). This
claim is more akin to a tort claim than to judicial review.
117. Had judicial review proceedings been launched before the appellant went
back to school, with a claim for damages included, there would have been no
problem. I do not think it fair to blame the appellant for not having tried to launch
judicial review proceedings earlier. It is not obvious to me that the right approach
to difficult problems such as this is to rush off to the administrative court. Most
people try to resolve their difficulties over access to public services by negotiation
and agreement with the authorities. Very few have the knowledge or the resources
to approach the administrative court. If all the people who were trying to persuade
public authorities to comply with their legal obligations did so, the court would
soon be swamped. Better by far to try and achieve a negotiated solution. Indeed,
while negotiations are going on, the court may well refuse leave on the ground that
the application is premature.
118. But if, once the problem is solved, it appears that there has indeed been a
violation of human rights, then it may be important that these are vindicated,
whether by a declaration or by an award of damages or both, so that lessons can be
learned. This is especially so in a novel situation such as this where the court may
be able to lay down principles which will guide the authorities’ approach to such
Page 40
cases in future and thus benefit others as well as the particular people involved.
That is, after all, why the House of Lords granted leave to appeal in this case.
119. In my view, therefore, the judge erred in principle by approaching this as if
it was a judicial review case and by minimising the importance of vindicating the
human rights of the individual claimant and setting standards for others in a
position similar to this. I venture to speculate that, if he had thought that the case
raised a triable issue, he would have had little difficulty in extending time so that it
could be tried.
120. For these reasons, which fall some way short of what the appellant was
hoping to achieve in this litigation, I would allow this appeal.
LORD BROWN
121. The appellant, now aged 21, claims that the respondent Council, during an
18 month period from January 2002 to July 2003, violated his right to education
under article 2 of the First Protocol to the Convention (article 2). Other members
of this Court have amply set out the facts of this case, all the relevant jurisprudence
both domestic and from Strasbourg, and indeed the full terms of article 2. None of
this need I repeat.
122. I do, however, wish to put in my own words why I for my part regard this
claim as having been rightly struck out summarily at first instance for having no
realistic prospect of success – this being the principal ground upon which I would
dismiss the present appeal.
123. It is difficult to exaggerate the degree of learning difficulty suffered by this
appellant during the period in question and the extent of the problem faced by the
respondent Council on this account. Perhaps some small measure of this can be
gleaned from the huge expense involved in finally meeting the appellant’s
educational needs: five years’ placement in a special residential school, Kisimul, at
the cost of £223,589 per annum.
124. I readily acknowledge that the appellant’s (and indeed his parents’)
situation was very far from satisfactory during the eighteen month period leading
up to that five year placement. One obvious feature of this (much relied upon by
Mr Bowen QC for the appellant) was the respondents’ continued naming of LS, a
community special day school, as the suitable school for the appellant’s special
educational needs pursuant to section 324 of the Education Act 1996 long after it
Page 41
became apparent to all that that school could no longer hope to cope with the
appellant’s increasingly aberrant behaviour. Let it be assumed that this was in
breach of the respondents’ public law duty under that section (and that the
respondents were also in breach of their more general duty under section 19 of the
Act). As, however, Sedley LJ observed in the court below (at para 13), “this was a
child with needs so profound that it took the system a considerable time to adjust
and cope”.
125. I am quite prepared to assume too that, considerable though the efforts
made by the respondents to cope with the appellant’s worsening difficulties
evidently were, they are open to criticism for not having done yet more to resolve,
or at least temporarily ameliorate, the deepening crisis in the appellant’s (and his
parents’) life. As Sedley LJ also observed (at para 13):
“No doubt [the Council] could and arguably should have moved
faster, once it had become clear that LS School should not have
been, or at least should not have remained, the school stipulated in
the SSEN”.
Finally let it be assumed that, but for the respondent’s failures to move faster
and/or do more, the appellant’s difficulties would not have intensified to the extent
they did by the time his residential placement finally began.
126. Would such assumed failings on the part of the respondents put them in
breach of article 2? That critically is the question now before the Court.
127. I understand Lord Kerr to answer that question in the affirmative. At
paragraph 162 of his judgment, for example, he appears to suggest that unless the
respondents can show that the entire eighteen month period was reasonably
required to find a new school to meet the appellant’s needs and that in the
meantime they did all they could to mitigate the position by considering other less
ideal options, they would be in breach of article 2. Indeed, paragraph 163 infers
that liability would be established here unless a trial “revealed that there was
nothing more that the County Council could have done”. To my mind, however,
such an approach puts the threshold for establishing a breach of article 2 far too
low.
128. I simply cannot accept that article 2 is breached whenever an education
authority fails to do all that it possibly could do to ensure that a child is receiving
the education he needs – here, as Lord Kerr correctly explained at paragraph 139,
training in the particular skills that will allow and encourage him to function to the
Page 42
best of what will inevitably be his restricted ability. In my opinion altogether more
is required to be shown before article 2 is breached. Indeed Lord Kerr seems to me
to come closer to identifying what could be regarded as a breach of article 2 in the
broad illustrations he gives at paragraph 161: if the authority “takes no action to
supply any alternative” to schooling which has been discontinued or “if it knows
that a pupil is not receiving [education] and engages in a completely ineffectual
attempt to provide it”.
129. This essentially is the approach to article 2 which, albeit in a very different
educational context, the House of Lords took in A v Head Teacher and Governors
of Lord Grey School [2006] 2 AC 363. Article 2 was, Lord Bingham suggested at
paragraph 24, “intended to guarantee fair and non-discriminatory access” to any
given member state’s “established system of state education” by those within that
state’s jurisdiction. The test to be applied in any given case is: “have the
authorities of the state acted so as to deny to a pupil effective access to such
educational facilities as the state provides for such pupils?” Lord Hoffmann asks
essentially the same question at paragraph 57: “was the applicant denied the basic
minimum of education available under the domestic system?” Returning to the
point at paragraph 61, Lord Hoffmann said:
“The correct approach is first to ask whether there was a denial of a
Convention right. In the case of article 2 of the First Protocol, that
would have required a systemic failure of the educational system
which resulted in the respondent not having access to a minimum
level of education.”
Like Lord Kerr I see no significant difference between the approach of Lord
Bingham and that of Lord Hoffmann. Each, moreover, agreed with the other’s
reasoning and Lord Nicholls and Lord Scott each agreed with the reasons of both.
Only Lady Hale disagreed with the reasoning in the case although not with the
result.
130. Some uncertainty has been expressed in later cases as to precisely what
Lord Hoffmann meant by “a systemic failure of the educational system”. Again,
like Lord Kerr, I do not understand Lord Hoffmann to be saying that, for a breach
of article 2 to be established, the authority’s system generally must have failed.
Article 2 can be breached by a systemic (i.e. wholesale) failure even in an
individual case. It seems to me that Sedley LJ captured the concept admirably
when he observed (also at paragraph 13), a propos of his above cited
acknowledgment that the respondent council here no doubt could and arguably
should have moved faster: “But that is a long way from the system either breaking
down or abandoning the child.”
Page 43
131. The facts of this case are now before us in very considerable detail – much
additional material having been adduced even since the Court of Appeal hearing.
On no possible view of this material could a court reasonably conclude that the
council took no action to supply the appellant with the education he required (after
he ceased to attend LS school) or that their attempts to provide it were “completely
ineffective” (Lord Kerr’s paragraph 161 illustrations of Convention breach), given
the magnitude of the problem confronting them and the difficulties of its solution.
Nor can it reasonably be said that the appellant was denied “effective access to
such educational facilities as the [UK] provides for such pupils” (Lord Bingham’s
test in the Lord Grey case): “such pupils” are inevitably difficult to accommodate
within the system and it is not sufficient for establishing a violation of article 2 to
show merely a breach of the education authority’s domestic public law duties or
even maladministration. Denial implies a substantially higher degree of
blameworthiness than this: as I would hold, 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.
132. Nothing in the Strasbourg jurisprudence to my mind encourages a less
exacting approach than this to the application of article 2 and I can think of few
things more unfortunate in this field of law than that our own courts should adopt a
looser approach. With the possibility of a damages award at the end of the road,
many fresh claims would be generated, all at considerable public expense. Better
by far that any serious shortcomings in the handling of an individual child’s
education should be the subject of a prompt public law challenge so that they may
be corrected in good time.
133. Inevitably, if one felt the least doubt as to whether the respondent Council’s
handling of this case could properly be characterised as a violation of the
Convention, there would need to be a full trial. If, however, I am right as to the
proper approach to article 2, this is unnecessary. There is a close parallel here with
the cases concerning the existence or scope of a common law duty of care. As to
these, it is worth recalling what Lord Hope said in Mitchell v Glasgow City
Council [2009] 1 AC 874, 883 (at para 12):
“There will, of course, be cases where the existence or scope of a
duty of care cannot safely be determined without hearing the
evidence. But no advantage is to be gained by sending a case to
proof when it is clear from the averments that, even if everything
that the pursuer avers is proved, the case must fail. That is likely to
be the case where the issue on which the case depends is one of
principle or, as Lord Reed put it in para 135 of his opinion, of legal
analysis. In such cases, it is not just that there would be no advantage
in sending the case to proof. It would be unfair for the defenders to
Page 44
be required to spend time and money on what will obviously be a
fruitless inquiry. Lord Reid’s comments in Jamieson v Jamieson
[1952] AC 525, 550 on the value of the procedure for disposing of
cases on relevancy without inquiry into the facts remain just as true
today as they were when they were made nearly 60 years ago.”
134. As I observed at the outset, it is principally upon this ground that I would
dismiss the appeal. Had it been necessary, however, I would, for the reasons given
by other members of the Court, have dismissed it on the limitation ground also.
LORD KERR
135. A, a severely disabled child, launched an action for damages against Essex
County Council for breach of his human rights, particularly in relation to Article 2
of the First Protocol to the European Convention on Human Rights and
Fundamental Freedoms. This provides, among other things, that no person shall be
denied the right to education. A’s action was dismissed by Field J by way of
summary judgment [2007] EWHC 1652 (QB) on the ground that it had no realistic
prospect of success. The judge further held that, since the claim had been brought
out of time, it should be rejected on that account also.
136. A’s appeal was dismissed by the Court of Appeal [2008] EWCA Civ 364,
Sedley LJ holding that the facts asserted on A’s behalf were not capable of
amounting to a breach of Article 2 of the First Protocol. In particular, he found that
it was not possible to spell out of those facts either a failure of the education
system or a denial of access to it. The claim had also been made both before Field
J and the Court of Appeal that the respondent had acted in breach of A’s
Convention rights under Article 3 (protection from inhuman and degrading
treatment) and Article 8 (the right to respect for family and private life) and Article
14 (protection from discrimination) but these claims were not pursued before this
court.
The facts
137. A is severely autistic. He suffers from epilepsy and has grave learning
difficulties. He attended L S School, a Community Special Day School for
children with serious problems with learning, from 1995 until 17 January 2002. In
May 2001 teachers at the school expressed concern about his behaviour and the
school’s ability to deal with him. He had inflicted harm on himself and had no
concept of danger. His condition was deteriorating and he was considered to
Page 45
represent a significant danger not only to himself but also to others who attended
the school.
138. In January 2002 A’s parents were contacted by the school. They were asked
to keep him at home while a medical assessment of his condition was made. This
was considered to be necessary because of his propensity for violence against other
pupils and staff. A’s parents agreed to this request and he remained at home for
many months before the medical assessment could be arranged. In fact, it did not
take place until September 2002. In the meantime his condition deteriorated
markedly. He was sent ‘work’ in the form of two boxes of educational activities –
touch books and bubbles. Speech and language therapy was provided on
Wednesday and Thursday mornings from March 2002 and an occupational therapy
assessment of A’s home was carried out. In May and June 2002 he attended
activity sessions at L S School and from about the end of June 2002 until 24 July
2002 he went to the school for individual teaching sessions each of which lasted 45
minutes. But he was significantly under stimulated during this period and this led
to intensification of his self harming and other aberrant behaviour. Indeed, by late
2002 or early 2003 A’s condition had deteriorated to the extent that he was
required to wear arm splints to prevent from gouging his face. He also had to wear
a helmet such was the force with which he struck his head on solid objects. This
was such an acute problem that experts feared that he might fracture his skull. It is
now clear – not least because of what occurred after A was finally given a suitable
placement – that the absence of virtually all forms of education during this period
was directly linked to the striking deterioration in A’s condition.
139. In this context it is important to remember that education for A cannot be
regarded in the same way as conventional learning undertaken by a child of normal
capability. Rather than the usual education given to a child who does not suffer
from the type of difficulties that A has, in his case ‘education’ involves training
him in the particular skills that will allow and encourage him to function to the
best of what will inevitably be his restricted ability. But because of the severe
disabilities from which he suffers, the need for such ‘education’ is, if anything, far
more important than for a normal child. A normal child whose education is
neglected is condemned to ignorance and a lack of the means to realise his full
potential. For someone such as A the absence of proper education can have far
more serious consequences – as, indeed, his case has so graphically illustrated.
140. The medical assessment of A finally took place between 9 and 13
September 2002 at the St Piers National Centre for Young People with Epilepsy.
He was diagnosed as suffering from “generalised seizure disorder; severe learning
disability; and challenging behaviour (aggressive and self injurious behaviour)”. A
report following the assessment recommended a residential programme. This
would provide a 24 hour curriculum with ‘consistent behavioural strategies’ at a
specialist school. It was concluded that A needed supervision and support at all
Page 46
times on a one to one basis. Indeed, the view was taken that on occasions this
would need to be on a two to one basis. This report’s findings are highly
significant in the debate as to whether A’s proposed action for violation of Article
2 of the First Protocol was entirely bereft of any prospect of success. The level of
his need, as disclosed by the report, finds a stark and sorry contrast with what had
actually been provided for him during the nine months that preceded the
assessment. He had been left virtually continuously in the care of his parents who
had no expertise whatever in dealing with his condition. They were also required
to care for A’s siblings some of whom also had special educational needs. It is not
difficult to understand why A’s condition worsened so dramatically during this
period.
141. The County Council became aware of the outcome of the assessment on 13
September. Commendably, by 10 October 2002 they had put funding in place for a
residential placement. There then began a protracted search for a school that would
meet A’s needs. The Council wrote to no fewer than twenty six schools between
16 October 2002 and 17 December 2002, seeking a placement for A. Eventually,
on 9 February 2003 Kisimul School offered a place for him. This would cost the
Council what Sedley LJ correctly described as the colossal sum of £223,589 per
annum. Once again to its credit the County Council was immediately willing to
pay this amount. But, for understandable reasons, A’s parents asked if they could
continue investigating other possibilities. Finally, it was decided to accept the
place at Kisimul School. As it happened, however, the further investigation that his
parents has asked for made no difference to the start of A’s placement there
because it was not possible for him to begin his course until 28 July 2003 since
there were ongoing building works at the school.
142. A has now completed his course at Kisimul school. He progressed well
there. His overall health and behaviour improved. He received appropriate
education, and his self-harming reduced considerably. In a report of 23 November
2006, a Consultant Community Paediatrician stated that there was no doubt that
A’s development achievements regressed during the period that he was away from
school. His behaviour had deteriorated because of the lack of demands made upon
him and the fact that, in consequence, he had been markedly under stimulated.
Despite this, it was considered that the effects on his learning and general
development were temporary. The paediatrician expressed the fear, however, that
there may have been a more permanent effect on his behaviour. In light of this
report and the other evidence, Field J found that the nineteen months during which
A was away from school had an adverse impact not only on him but also on his
parents. That finding has not been challenged.
The evolution of A’s claim
Page 47
143. Field J described the claim made by A in the proceedings before him in the
following paragraph of his judgment: –
“[25] A claims that in breach of his A2P1 rights he was denied an
effective and meaningful education whilst at L S School between
May 2001 and 18 January 2002, and thereafter until 27 July 2003.
He also claims that his exclusion from L S School was in breach of
his A2P1 rights.”
144. The focus of the claim was, therefore, on the exclusion of A from the LS
school and the adequacy of the education that he had been receiving there. Before
the Court of Appeal that focus seems to have shifted somewhat. Sedley LJ stated
that the “essential case” made on A’s behalf was that, for want of even minimally
suitable provision for his education, he was shut out of the state system, although
he also said that the “foundation of the claim” was that A ought to have remained
in L S School until July 2003 when his successful placement at Kisimul School
began.
145. Before this court, a simpler and more direct case has been made. It is to the
effect that this young man had been abandoned by the educational authorities after
his parents were persuaded to withdraw him from school. Emphasis was no longer
placed on the exclusion of A from a particular school or indeed from the state
system. Rather, while acknowledging that the County Council had made
conspicuous efforts to obtain a suitable place for A after the medical assessment
was made, counsel for the appellant contended that the plain fact was that, from
January 2002 until then, no effective education was provided for him. That, it was
submitted, amounted to a denial of education in breach of Article 2 of the First
Protocol.
The denial of education
146. Article 2 of the First Protocol to the European Convention on Human
Rights and Fundamental Freedoms provides: –
“Right to education
No person shall be denied the right to education. In the exercise of
any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions.”
Page 48
147. Although expressed in negative terms, it is clear that this provision
enshrines a right to have access to education – see Belgian Linguistic Case (No 2)
(1968) 1 EHRR 252 where the European Court of Human Rights (ECtHR) said at,
p 280, para 3: –
“By the terms of the first sentence of this Article, ‘no person shall be
denied the right to education’.
In spite of its negative formulation, this provision uses the term
‘right’ and speaks of a ‘right to education’. Likewise the preamble to
the Protocol specifies that the object of the Protocol lies in the
collective enforcement of ‘rights and freedoms’. There is therefore no
doubt that article 2 does enshrine a right.”
148. The content of the right and the extent of the corresponding duty cast on the
member state are discussed in the Belgian Linguistic Case. The court concluded
that the scope of the obligation must be geared to the aim of the provision. That
aim did not include the imposition of a duty to create an educational system; nor
did it guarantee access to any particular type of education or at any specific level.
What the provision was intended to achieve was the enshrining of a right to access
to the education system that prevailed in the state at the material time.
149. It was recognised, however, that the Article 2 First Protocol right had a
further dimension beyond the mere right to access to available educational
institutions. The court dealt with this in the following passage from, p 281, para 4
of its judgment: –
“4 The first sentence of article 2 of the Protocol consequently
guarantees, in the first place, a right of access to educational
institutions existing at a given time, but such access constitutes only
a part of the right to education. For the ‘right to education’ to be
effective, it is further necessary that, inter alia, the individual who is
the beneficiary should have the possibility of drawing profit from the
education received, that is to say, the right to obtain, in conformity
with the rules in force in each State, and in one form or another,
official recognition of the studies which he has completed.”
150. Mr Bowen QC for the appellant argued that, in effect, the prevailing
education system for children in respect of whom a statement of special
educational needs had been made under section 324 of the Education Act 1996
was the educational provision specified in the statement since this was the only
Page 49
form of education from which A could ‘draw profit’. Moreover for special
educational needs children a system of education was in place in this country. This
consisted of a means of determining what such a child’s needs were and then
meeting them. This, therefore, was the system to which A was entitled to have
access by virtue of Article 2 of the First Protocol. The riposte of Mr Faulks QC
(for the County Council) was that the appellant’s argument was tantamount to a
claim to entitlement to a specific type of education which the Belgian Linguistic
Case and later authority had expressly disavowed. Before commenting on these
competing arguments, it is necessary to say something about the cases that came
after the Belgian Linguistic Case.
151. A number of the later Strasbourg authorities dwell on the need for a system
of regulation in the provision of education and the constraint that this places on the
scope of the right under Article 2 of the First Protocol. In SP v UK (Application
No 28915/95) [1997] EHRLR 287, the applicant suffered from dyslexia. He
claimed that his rights under Article 2 of the first Protocol had been violated
because the teaching staff of the schools that he had attended had failed to address
his special educational needs and the local education authority had initially refused
to make a statement of special educational needs in his case. The applicant’s claim
was declared inadmissible by the European Human Rights Commission. Citing the
Belgian Linguistic Case 1 EHRR 252, 281, para 5 the Commission said that the
right under Article 2 of the First Protocol “by its very nature call[ed] for regulation
by the State” and that such regulation “may vary in time and place according to the
needs and resources of the community and of individuals”. It was recognised that
there must be a wide measure of discretion left to the authorities as to how to make
the best use possible of the resources available to them in the interest of disabled
children generally.
152. And in Şahin v Turkey (2005) 44 EHRR 99 ECtHR said: –
“154 In spite of its importance, this right is not, however, absolute,
but may be subject to limitations; these are permitted by implication
since the right of access ‘by its very nature calls for regulation by the
State’ (see the Belgian Linguistic Case, para 5; see also, mutatis
mutandis, Golder v United Kingdom (1975) 1 EHRR 524, para 38;
and Fayed v United Kingdom (1994) 18 EHRR 393, para 65).
Admittedly, the regulation of educational institutions may vary in
time and in place, inter alia, according to the needs and resources of
the community and the distinctive features of different levels of
education . .”
153. The constraint on the right under Article 2 of the First Protocol which arises
from the recognition of the need for regulation leads inexorably, in my opinion, to
Page 50
the conclusion that the system of education to which the article guarantees access
must include the process for investigating what is required to meet an individual
child’s needs. Such inquiry is unquestionably a feature of the educational system
in this country. It follows that the failure to supply education during the reasonable
period that such investigation requires will not give rise to a violation of Article 2
of the First Protocol. I shall discuss the implications of this conclusion on A’s case
below.
154. The most important domestic decision in this area is A v Head Teacher and
Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363. Paras 12 and
13 of Lord Bingham’s speech contain a valuable summary of the Strasbourg
jurisprudence following the Belgian Linguistic case and it is convenient to
reproduce them here: –
“12 The court’s judgment in the Belgian Linguistic Case (No 2) has
been cited and relied on in a number of later decisions such as
Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR
711, Campbell and Cosans v United Kingdom (1982) 4 EHRR 293,
Şahin v Turkey (Application No 44774/98) (unreported) 10
November 2005, Grand Chamber, and Timishev v Russia
(Application Nos 55762/00 and 55974/00) (unreported) 13
December 2005. In later decisions the reasoning in that case has been
followed but elaborated. It has been held that article 2 is dominated
by its first sentence (Kjeldsen, para 52; Campbell and Cosans, para
40) but the article must be read as a whole (Kjeldsen, para 52), and
given the indispensable and fundamental role of education in a
democratic society a restrictive interpretation of the first sentence
would not be consistent with the aim or purpose of that provision:
Şahin, para 137; Timishev, para 64. But the right to education is not
absolute (Şahin, para 154): it is subject to regulation by the state, but
that regulation must not impair the essence of the right or deprive it
of effectiveness: Campbell and Cosans, para 41; Şahin, para 154. It
is not contrary to article 2 for pupils to be suspended or expelled,
provided that national regulations do not prevent them enrolling in
another establishment to pursue their studies (Yanasik v Turkey
(1993) 74 DR 14), but even this qualification is not absolute: Sulak v
Turkey (1996) 84-A DR 98. The imposition of disciplinary penalties
is an integral part of the process whereby a school seeks to achieve
the object for which it was established, including the development
and moulding of the character and mental powers of its pupils:
Şahin, para 156.
13 In Coster v United Kingdom (2001) 33 EHRR 479, para 136, Her
Majesty’s Government submitted that article 2 did not confer a right
Page 51
to be educated at a particular school. The court did not expressly
accept or reject this submission. Such an interpretation was,
however, adopted by the Court of Appeal in S, T and P v Brent
London Borough Council [2002] ELR 556, para 9.”
155. In para 24 of his speech Lord Bingham identified the purpose of Article 2 of
the First Protocol as the guarantee of fair and non-discriminatory access to the
system of education prevailing within the jurisdiction of member states. He went
on to characterise the right as “weak” compared to other rights guaranteed by the
Convention. That it is weak in respect of its scope – in not guaranteeing access to a
particular form of education, for instance – is undeniable. But I do not understand
Lord Bingham to have been suggesting that it was weak in relation to the force and
effectiveness of the guarantee that it embodies. That much is, I believe, clear from
Lord Bingham’s statement in the immediately preceding sentence of the same
para: –
“The fundamental importance of education in a modern democratic
state was recognised to require no less [than fair and nondiscriminatory access to the prevailing educational system].”
156. Later in the same paragraph Lord Bingham observed that the test as to
whether there had been a denial of education was “a highly pragmatic one, to be
applied to the specific facts of the case: have the authorities of the state acted so as
to deny to a pupil effective access to such educational facilities as the state
provides for such pupils?”. It was on this passage that Mr Bowen particularly
fastened in order to advance his claim that the special educational needs system
(and indeed the special needs provision stipulated in the statement) was that to
which A was entitled to have access in fulfilment of Article 2 First Protocol rights.
But I do not consider that Lord Bingham here had in contemplation a particular
group of pupils with particular educational requirements. Just a few sentences
earlier he had said that there was no right to education of a particular kind or
quality, other than that prevailing in the state and there was no Convention
guarantee of education at or by a particular institution.
157. Sedley LJ in the Court of Appeal suggested that there was a possible
tension between Lord Bingham’s formulation of the scope of the right (i.e.
effective access to such educational facilities as the state provides for such pupils)
and Lord Hoffmann’s statement in the same case (at para 57) that a breach must
involve denial of “the basic minimum of education available under the domestic
system”. Taken as a whole, it seems to me that Lord Bingham’s concept of the
content of the right does not differ significantly from that of Lord Hoffmann. His
emphasis on the fact that it did not guarantee any particular form of education and
that it did not require to be provided at any particular institution chimes well with
Page 52
the notion that all that need be provided is the basic minimum. I would not
therefore be disposed to accept Mr Bowen’s contention that A was entitled under
Article 2 of the First Protocol to have access to the particular form of education
specified in the statement of special needs. He was entitled, however, to the basic
minimum education and what that basic minimum involves must be assessed, in
my opinion, by reference (at least in part) to A’s special needs. It would be utterly
pointless to give A access to conventional education. To suggest that his right to an
education extended only so far as the right to have access to the normal state
system at its most basic level would be to rob the right of any meaning or
effectiveness in his case.
158. My view that A was entitled to a basic minimum education geared to his
particular condition is not influenced, therefore, by the observation in the Belgian
Linguistic case that, for the right to education to be effective, it is necessary that
the individual who is the beneficiary should have the possibility of drawing profit
from the education received. That statement reflected the particular circumstances
of the case and was directed to the need to ensure the availability of some form of
certification as to the proficiency of the student who had undertaken the education.
The underpinning of my conclusion that the basic minimum in A’s case required
that his condition be taken into account is the need for the right to be effective in
his case. It would not be effective if that critical and central feature was ignored.
159. While supporting Lord Bingham’s reasons for dismissing the pupil’s claim
in the Lord Grey case, Lord Hoffmann gave reasons of his own for agreeing with
that result. At para 61 he said: –
“In the present case, where the respondent was not excluded from
school education, he would in my opinion have had no claim at
Strasbourg. And if no claim can be made in Strasbourg, it follows
that there cannot have been an infringement of a Convention right
giving rise to a claim under section 6 of the Human Rights Act 1998:
see R (Quark Fishing Ltd) v Secretary of State for Foreign and
Commonwealth Affairs [2006] 1 AC 529. It is in my view
illegitimate to promote the public law duty of the school, not giving
rise to a private right of action, to a duty under section 6 of the
Human Rights Act 1998 remediable by a claim for damages, by
saying that in domestic law the school bore the ‘primary duty to
educate the child’. The correct approach is first to ask whether there
was a denial of a Convention right. In the case of article 2 of the First
Protocol, that would have required a systemic failure of the
educational system which resulted in the respondent not having
access to a minimum level of education. As there was no such
failure, that is the end of the matter.”
Page 53
160. The use of the words ‘systemic failure’ in this passage appears to have led
the Court of Appeal in the present case to conclude that for a breach of Article 2 of
the First Protocol to occur there must be “either a failure of the education system
or a denial of access to it” – see para 12 of Sedley LJ’s judgment. So expressed,
these alternatives seem to contemplate either a deliberate withholding of education
from the pupil concerned or some fundamental failure of the educational system in
general which leads to his being denied access to it.
161. As Mr Faulks was quick to accept, there can be a denial of education even if
there has not been systemic default. I would therefore be slow to attach to Lord
Hoffmann’s use of the words, ‘systemic failure’ quite the significance that the
Court of Appeal appears to have associated with it. I consider that denial of
education under the article can arise in a variety of ways. Obviously, a calculated
refusal to allow a pupil access to any form of even basic education will be in
violation of the right. But a failure to take steps to provide education when the
state authority responsible for providing it is aware of the absence of the pupil
from any form of education could in certain circumstances give rise to a breach of
the right. If, for instance, a local education authority knows that a child has been
asked by a school not to attend that school; and if the authority is responsible for
the provision of education to the child; and if it takes no action to supply any
alternative to what had been previously provided by the school, it is at least
arguable that it is in breach of its duty under Article 2 of the First Protocol. I would
go further. I believe it also to be at least arguable that an authority with the
responsibility for providing education, if it knows that a pupil is not receiving it
and engages in a completely ineffectual attempt to provide it, is in breach of the
provision.
162. As I have said above, however, an education authority must have the
opportunity to make reasonable inquires as to what a child’s educational needs are
and how they can be met, without falling foul of the requirements of Article 2 of
the First Protocol. What, therefore, is principally at stake in the present case is
whether the entire period of A’s absence from any effective form of education can
be accounted for on the basis that this period was reasonably required in order to
investigate A’s particular needs and to identify a school at which they could be
met. A subsidiary – but nonetheless important – issue is whether any less ideal
option should have been considered in the meantime in order to mitigate the harm
that A undoubtedly suffered during his absence from education.
163. In my opinion, these were triable issues. If it could be shown that the
County Council had either failed to make inquiries during any period that it knew
A was not receiving effective education or that such investigations as it conducted
were wholly inadequate, there would be at least a reasonable prospect of success
for A’s claim under Article 2 of the First Protocol. A trial might well have revealed
that there was nothing more that the County Council could have done. In that case,
Page 54
no breach of the article could arise. But I feel quite unable to say, in the absence of
a trial, that this is bound to have been the outcome.
164. I am likewise unable to conclude, in the absence of evidence that would
allow a confident judgment on the issue, that it could never be shown that the
County Council ought to have put in place some short term basic educational
provision which would have gone some way towards diminishing the adverse
impact on A of the lack of education while the medical assessment was being
arranged and subsequently while awaiting its implementation. I am in complete
agreement with what Lady Hale has said on this issue. It is, of course, easy to
speculate that there may have been nothing that the Council could reasonably do in
this regard. But unless the matter was investigated, I cannot see how it can be said
that A had no prospect of establishing that the County Council should have done
something beyond such efforts as it made.
Extension of time
165. Because it upheld the judge’s ruling that A’s claim should be dismissed by
way of summary judgment, the Court of Appeal did not deem it necessary to
consider the issue of whether time should have been extended to permit the
appellant’s claim to proceed. Since I have reached a contrary view on the question
of summary judgment, it is necessary for me to consider the extension of time
point.
166. Section 7 (5) of the Human Rights Act 1998 provides: –
“Proceedings under sub-section (1) (a) must be brought before the
end of:
(a) the period of one year beginning with the date
on which the act complained of took place; or
(b) such longer period as the court or tribunal
considers equitable having regard to all the
circumstances,
but that is subject to any rule imposing a stricter time limit in relation
to the procedure in question.”
Page 55
167. It has been held in Cameron v Network Rail Infrastructure Ltd [2006]
EWHC 1133 (QB), [2007] 1 WLR 163, para 47 that the burden of establishing that
it is equitable to extend time under s 7(5) is on the party seeking the extension. As
Field J observed, at para 120, however, few cases of this type lend themselves to a
ready resolution by the application of a burden of proof and I prefer to approach
the question (as did the judge) by an open ended examination of the factors that
weigh on either side of the argument that this is a case in which the discretion of
the court should be exercised to extend the time under section 7 (5) (b).
168. Field J dealt with this issue in paragraph 129 of his judgment as follows:
“In my judgment, it is not equitable to extend the limitation period in
this case. My reasons are these. CLC [the Children’s Legal Centre],
who are very familiar with the law relating to education, were
instructed on 14 April 2002 but no application for judicial review
was made until 30 May 2003, an application that foundered on the
LSC’s refusal to grant funding because a school place was going to
be made available from the end of July 2003. No such reason would
have existed for refusing funding for a judicial review application
made towards the end of 2002 but such an application was not made.
Instead, proceedings have been issued a long time after the alleged
infringements came to an end and at a stage when there is little point
from A’s personal point of view in seeking a declaration that his
rights were infringed. As for his damages claim, it is far from certain
that a court would conclude that an award of damages is necessary to
afford him just satisfaction and any sum awarded is likely to be
modest and therefore at a level that is disproportionate to the costs of
the proceedings. It was this lack of proportionality that
understandably led the LSC to refuse funding until March 2005. I do
not think that the public interest identified by the Public Interest
Advisory Panel tips the balance in favour of extending time. The
question whether A2P1 confers a right to an education in accordance
with the relevant SSEN, and if so, the appropriateness of an award of
damages and the impact on the alleged shortcomings of judicial
review in special educational needs cases, can be as easily (and more
appropriately) determined in an upcoming application for judicial
review made by another party as in these very late proceedings.”
169. I can find nothing in this analysis with which to disagree. In particular, I
consider that it is highly unlikely that any significant sum by way of damages
would have been awarded if the action had been brought within time and had been
successful. On the contrary, a court may well have concluded that no award of
damages was necessary in order to provide just satisfaction to A. Accordingly, I
Page 56
would dismiss the appeal on the ground that the judge was right not to have
extended the time to allow the claim to be brought.
