Judicial review on VAT policy begins

The claim is being brought by seven families and is supported by the Independent Schools Council. The claimants are represented by the law firm Kingsley Napley with a legal team led by Sophie Kemp (partner and head of Public Law) and Sahil Kher (Senior Associate), alongside barristers from Blackstone Chambers: Lord Pannick KC, Paul Luckhurst and Grant Kynaston.

The claim was filed just before Christmas last year. In the weeks that followed, separate claims were filed on behalf of a) claimants supported by a parent-led group called Education Not Discrimination and b) claimants attending various Christian faith schools, as well as the schools themselves. These cases (referred to as “Claim 2” and “Claim 3” respectively) will be heard alongside the claim supported by the ISC (“Claim 1”).

What is the legal case?

The case is a judicial review challenging the government’s decision to impose VAT on the provision of education by independent schools. This policy makes the UK an outlier among the 46 Council of Europe States.

The claimants supported by the ISC argue that taxing education breaches the right to education guaranteed by the European Convention on Human Rights (ECHR) and that the policy's implementation is disproportionate. They argue that it specifically threatens access to education for children with complex SEND, those seeking religious or philosophical-based education, those requiring single-sex education, and foreign nationals needing curriculum continuity.

The formal defendant is the Chancellor of the Exchequer, with HMRC as an interested party and the Department for Education as an intervener. All three government departments are represented by a single legal team. The Speaker of the House of Commons is also formally a party, but the points raised by his legal team are now considered academic.

Who will hear the claim?

The case will be heard in the Administrative Court, a specialist division of the High Court that deals with judicial reviews.

While not confirmed, it is expected that three judges, potentially including a senior Court of Appeal judge, will hear the case. Having three judges for a High Court hearing is rare and underscores the case’s significant public importance and legal complexity.

What remedy is being sought?

The claimants seek a declaration of incompatibility, meaning the Court would find the legislation incompatible with human rights law. Specifically, they argue the policy contravenes Article 2 of the First Protocol (right to education) of the ECHR, both on its own and when read with Article 14 (protection from discrimination).

If successful, the government would need to decide whether to amend or withdraw the policy. They could also appeal the decision. If unsuccessful, the claimants' legal teams will review the judgment and consider an appeal.

Why is the government defending the claim?

Reports suggest significant legal fees are being incurred by the government in defending this case.

The ISC expected a robust defence, noting the government likely sought legal advice before designing the policy. The government’s legal team consists of experienced barristers acting on ‘panel rates’, significantly lower than their standard commercial rates, and their solicitors are in-house at HMRC. The ISC’s concern is not the government’s defence but rather the lack of detailed engagement with the independent sector, the rushed timeline, and the ongoing impact on schoolchildren. The ISC believes taxing education fundamentally undermines the right to education.

What happens at the hearing?

Lord Pannick will lead the claimants’ case on Day 1, outlining why imposing VAT on education breaches human rights. Paul Luckhurst will argue the discriminatory impact on pupils with SEND, religious needs, foreign nationality, and those in single-sex schools.

Jeremy Hyam KC and Tom Cross KC will lead Claim 2, while Bruno Quintavalle will argue Claim 3.

The government will then respond, represented by Sir James Eadie KC, Eleni Mitrophanous KC, Sarah Hannett KC, and Jason Pobjoy KC. Lord Pannick and others will have the opportunity to reply on Day 3.

Can the public attend?

Courtroom space will be extremely limited, prioritising legal teams, claimant families, and key parties.

An application has been made for a hybrid hearing, allowing remote access via video link. However, it is unclear whether the Court will grant this request, and if so, whether access will be restricted to claimant families and legal teams unable to attend in person.

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