Supreme Court judgment on Human Rights damages claim for failure to provide special needs education

July 21st, 2010

On 14th July 2010, the Supreme Court gave judgment in A v Essex CC [2010] UKSC 33, which was a damages claim based on Art 2 Protocol 1 of the ECHR, often referred to as “the right to education”, though the ECtHR and domestic courts have interpreted it as providing, broadly, only the right to education at a minimum guaranteed by the state so that, as Lord Clark put it in this case, the issue is whether the claimant “has been denied effective access to the system in place” – though as Lord Kerr said, there was also the requirement that the claimant have “the possibility of drawing profit from it”. This formulation avoids the very tricky task of estimating what a basic minimum standard might be.

The claim had been struck out by Field J. The Court of Appeal dismissed the claimant’s appeal. He appealed to the Supreme Court. A also appealed against a ruling that he should not be allowed to pursue his claim because he had brought it outside the one year limitation period for bringing claims under the Human Rights Act 1998.

Three different majorities made rulings on the three main issues, the result being, by a tortuous route, that the appeal failed and the claim remained struck out.

The central point was whether a local education authority has a minimum legal obligation to provide all children with an effective education, taking account of their special needs and regardless of the demands that this has on resources.

The claimant, now aged 21, is severely autistic, and had very significant learning difficulties. In 2001, when he was aged 12, teachers at the special school which he attended expressed concern about his behaviour and the school’s ability to deal with him. He ceased to attend the school when his parents were asked not to bring him in for health and safety reasons.

The intention was that he should receive an urgent residential medical assessment for his needs but this was delayed until September 2002.

Meanwhile A was sent work to do with his parents at home and he was provided with some weekly speech and language therapy sessions. He was not provided with a tutor who was trained in dealing with children with his degree of needs. The assessment eventually took place in September 2002, recommending that A should receive residential education. A residential school placement could not be found until the end of July 2003. When the placement began, things improved for A, and he received appropriate education.

A, relying on A2P1,sought damages from Essex County Council arguing that, between the period January 2002 to July 2003, his right to education was infringed.

The central question was: does A2P1 impose a minimum obligation to provide a child with an education that is effective having regard to his special needs, regardless of the demands that this makes on resources? A argued that it does, and that for the 18 months he was denied this right, because his special needs were not met.

A also argued that A2P1 entitled him to such facilities as were available in the 18 month period, even if these were not adequate to meet his special needs, and that there had been a failure to provide these.

The Supreme Court dismissed the appeal by the following steps:-

(1) A majority (Lords Clarke, Phillips and Brown) held that it was not arguable that A2P1 gave A an absolute right to education that met his special needs during the 18 months. The time taken to find a school that met these needs was attributable to limitation of resources. Even if the delay had been attributable in part to administrative shortcomings, this would not have amounted to a breach of A2P1.

(2) On the alternative argument, a different majority (Lord Phillips, Lady Hale and Lord Kerr) held that

A might have been able to establish a breach of A2P1 at trial in the form of a failure to provide

educational facilities that were available but …

(3) … a majority (Lord Phillips, Brown, Kerr and Clarke) held that it was not “equitable” (HRA, s 7(5)(b)) to extend the one year limitation period.

As Lord Clarke said (paragraph 49), quoting Lord Clyde in Brown v Stott [2003] 1 AC 681 at 727 F, 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.”

But note Baroness Hale, leaving the door open for future developments at paragraph 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”.”

And note, too, Baroness Hale referring (para 106) to the fact that there was no claim based on Art 14 and A2P1 (i.e. discrimination in the provision of education against children with special needs.

Peter Oldham QC

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