Boy in the corner

The recent Supreme Court decision in A v Essex County Council [2010] UKSC 33 was heralded by some commentators as representing an opportunity for many parents of children with disabilities to pursue alternative remedies under the Human Rights Act.

In fact the judgment affords no such avenue as the Supreme Court has all but barred the stable door by maintaining an extremely limited interpretation of the right to education, thereby following the jurisprudence of the European Court of Human Rights.

To many lawyers, that this case made its way to the higher courts at all was surprising, no less so the fact that the appellant was in receipt of public funding. Previous domestic case law had exhaustively concluded that the right to education is a weak one, affording individuals no more than the right to non-discriminatory access to state-funded education. In Ali v The Head Teachers and Governors of Lord Grey School [2006] UKHL 14, the House of Lords decided that the right to education does not encompass any guarantees as to the type or quality of state education an individual might receive.

The case of A was brought by a children's charity. It is this backdrop which reminds us that advocacy through litigation is one of the ways in which NGOs promote and extend the rights of their beneficiaries, and is one of the hallmarks of a flourishing democracy where the rule of law is respected. Indeed, in recent years this strategy has been used to great effect by an NGO coalition representing the rights of older people, who, after losing a landmark case in the House of Lords (YL v Birmingham City Council [2007] UKHL 27) lobbied government successfully to ensure that care homes run by the private or voluntary sector, but contracted by local authorities to provide residential care, are covered by the Human Rights Act 1998 (HRA). They achieved this through the passage of section 145 of the Health and Social Care Act, which deems that private providers of accommodation, nursing and personal care to residents funded by local authorities are providing a function of a public nature and are therefore caught by section 6(3)(b) of the HRA.

Access denied?

The potentially interesting opportunity in the A case was the possibility of expanding the slight chink of light in the curtain that had been left by Ali as a result of the dissenting judgment given by Baroness Hale of Richmond.

Ali involved a pupil who was unlawfully excluded from school following unproven suspicion that he was involved in an arson incident in a classroom. Before the criminal proceedings against him were dropped, the head teacher imposed an indefinite exclusion and subsequently imposed conditions on his parents before his re-integration. Both of these actions were ultra vires and beyond the scope of the statutory guidance for managing pupil behaviour. This effectively made it impossible for the pupil to return to the school as he lost his right to appeal against the decision. This meant that he lost several months of his education.

During this time the local authority decided to offer him a place in a pupil referral unit (PRU), a short-term educational placement which is normally reserved for pupils with extremely challenging behaviour. As a bright student showing great academic promise, Ali declined the offer of a place in what was parochially known as 'the sin bin', and instead studied on his own at home, with limited amounts of his work being marked by the school.

One of the issues the House of Lords had to address was whether the offer of a place in the PRU afforded Ali access to educational facilities, thereby meaning that he had not been denied access to an educational establishment. The majority of the lords adopted the narrow interpretation of the right to education adopted by the European Court of Human Rights. Article 2 of the First Protocol (A2/P1) 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 teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.'

Back to basics

The leading Strasbourg authority on the content of the article remains the Belgian Linguistic Case No 2 [1968] 1 EHRR 252. The case arose from the wish of French-speaking Belgian parents that their children should be taught in French and the facts are in no way analogous with Ali or A. The court determined that despite the negative formulation of the first sentence in A2/P1, the right guarantees no more than access to educational establishments existing at a given time and the right to obtain, in conformity with the rules in force in each state and in one form or another, the official recognition of studies which have been completed. This decision has been cited and elaborated in a number of later decisions such as Kjeldsen, Busk, Masden and Pedersen v Denmark [1976] 1 EHRR 711, Campbell v Cosans [1982] 4 EHRR 293, Sahin v Turkey (Application No 44774/98, Grand Chamber, 10 November 2005, unreported), and Timishev v Russia (Application Nos 55762/00 and 55974/00, 13 December 2005, unreported).

In Ali, the majority decision of the House of Lords concluded that A2/P1 was a deliberately weak right that inferred no right to education of a particular kind or quality, providing it was prevailingly what was on offer in the state. In effect, the offer of the place in the local PRU, together with random items of work completed at home being marked by the school, was sufficient access to education on offer in England at the time. The quality of what was on offer was held to be beyond the scope of the right.

In her dissenting judgement, Baroness Hale concluded that the head teacher's unlawful exclusion denied the pupil the procedural safeguards that normally attach to school expulsions, by denying him the opportunity to appeal against the exclusion decisions. The time out of school did, in her view, constitute a violation of A2/P1 because it resulted in a denial of access to education at the school where the pupil was on the roll.

No violation

In A, the pupil was out of formal education for a period of 18 months, for very different reasons. A was a disabled learner who is now 20 years old. At the relevant time between January 2002 and July 2003 he was 12 and 13. The problem arose during that period because of his diagnosis of autism and serious learning difficulties and severe communication disorder. His behaviour was best described as 'challenging'. He suffered from epilepsy, frequently having ten to 15 short fits a day despite medication. He was doubly incontinent, and had no concept of danger and required constant supervision. He was dependent upon adults for every need. The local authority was unable to provide any meaningful education at home for a period of 18 months. During this time he was assessed by the local authority's experts and, eventually, a highly specialist residential placement at a special school was found, thereafter costing the taxpayer in excess of £1.2m.

Through his lawyer, A claimed damages against the local authority with statutory responsibility to assist and provide for his education and social welfare needs. He did not claim damages for breach of duty of care owed to him at common law or for breach of statutory duty. Similarly, his claim was not based on any public law challenge for the authority's failure to implement its SEN obligations imposed by the Education Act 1996. His claim was put solely under the Human Rights Act 1998.

His case was 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 was not provided with significant education of any kind such that he was deprived of even the minimum education to which he was entitled under article 2 protocol 1. His counsel submitted that Essex had acted in a way that was incompatible with his rights under A2P1 and unlawful under section 6(1) of the Human Rights Act; that he was 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) of the HRA.

The Supreme Court judgment made it clear that the court was having none of it. Lord Clarke upheld Lord Hoffman's judgment in Ali, and reiterated that a breach of domestic law, in this case the failure to provide suitable education under the provisions of the Education Act 1996, did not necessarily equate to a violation of A2/P1. Consequently, he was also not prepared to accept that a breach of a public law duty should give rise to private law action under section 6 of the HRA, remediable by a claim in damages. In applying Lord Bingham's judgment from Ali, he rejected all suggestion that the question in A2/P1 cases should be anything other than whether the pupil has been denied effective access to the system in place. That question he said will only be answered in the affirmative where the individual's right to education has been so reduced as to 'impair its very essence and deprive it of its effectiveness'.

What next? The position now must be that if claimants wish to bring proceedings for unlawful deprivation of education under domestic law, their most effective route of challenge remains by way of public law challenge through judicial review. As a so-called 'test case', A has, for some time to come at least, consigned the right to education to the back of the class, save in the most exceptional cases where there have been systemic failures to provide individuals with even the most basic access to a limited amount of education.