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Disabled boy cannot sue for human rights breach over lack of education

19 July 2010

A disabled boy who was out of school for 18 months while waiting for a place at a residential special school cannot sue his council for breach of human rights, the Supreme Court has ruled.

The Children’s Legal Centre, which represented the boy, said it would consider petitioning the Court of Human Rights in Strasbourg.

Delivering the leading judgment in A v Essex County Council [2010] UKSC 33, Lord Clarke said the boy, known as ‘A’, suffered from severe epilepsy, autism, incontinence, learning difficulties and behavioural problems.

He was removed from his special day school in January 2002, at the age of 12, by Essex County Council.

Lord Clarke said this was because “the school could not cope with him and his continued presence in class posed a risk to the health and safety of other pupils”.

A’s needs were assessed by the National Centre for Young People with Epilepsy. Following an initial visit, a full five-day assessment took place, at a cost of over £10,000, in September 2002.

The head teacher of A’s current special school acknowledged that A’s educational needs were not being met but the council’s education department said they could find no tutor qualified to meet them.

Following the assessment, a report recommended that A should go to a residential special school with a 24 hour curriculum and “one to one (sometimes two to one) supervision and support at all times”.

Kisimul School offered a place to A at a cost of £223,600 per annum in February 2003, which his parents accepted in April. Lord Clarke said there was a further delay until July 2003 because of construction work.

A argued that during the period from January 2002 to July 2003, he was denied his right to education under article 2 of the First Protocol to the European Convention on Human Rights.

However, Lord Clarke said that, as argued by Lord Bingham in Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, the correct approach was a pragmatic one.

Lord Clarke said “considerable efforts” were made to assist A during the 18 months he was out of school, including his referral to an occupational psychologist and a number of speech therapy and activity sessions.

“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.”

Lords Clarke, Phillips and Brown agreed that A’s human right to education under the ECHR was not breached during the 18 month period and agreed with the lower courts that his claim should be struck out. Lady Hale and Lord Kerr dissented.

Andrew Cooper, director of the public sector group at Weightmans, represented Essex County Council.

“The Human Rights Act is a very important piece of legislation but, as this judgment makes clear, the European Convention rights that the Act brings into effect are not a panacea for all ills,” he said.

“Our domestic legislation provides a sophisticated public law system for the education of children with special educational needs. This system already affords a consistent means of protecting fundamental rights.

“If A’s argument had been accepted, it would have created the potential for a flood of nominal damages claims against local authorities all of which would inevitably have been pursued entirely at significant public expense.”

Professor Carolyn Hamilton, director of the Children’s Legal Centre, said: “This is an extremely important case, and while we are disappointed with the decision, it was essential that the scope and content of the right to education is clarified in the highest court.

“We will consider petitioning the European Court of Human Rights in Strasbourg. The provision of education for children with special educational needs and disabilities, as illustrated through this case and in the recent Lamb Report is a ‘sorry state of affairs’ as one of the judges commented.”

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