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Special Educational Needs and Human Rights
Background
On 13 July 2007 judgement was handed down in
the High Court in relation to four more education claims against
Local Authorities under the Human Rights Act 1998 ('the Act'). The
Authorities involved were Essex, Worcestershire, Herefordshire and
Suffolk County Councils. The claims were made variously under
Articles 3, 8, 14 and Article 2 Protocol 1 of the Act. Of
particular interest however were the claims brought under Article 2
Protocol 1.
Facts
The co-joined claimants were referred to as A,
J, S, and B. A was severely autistic, suffered from epilepsy and
had severe learning difficulties. J had pathological demand
avoidance syndrome and a compulsive aggressive disorder. S had a
need for one to one support in mechanical activities and intensive
long term therapy. B had profound and complex special needs. All of
the claimants had Statements of Special Educational Needs
(SEN).
The claims
Each of the claimants alleged that their human
rights under Article 2 Protocol 1 had been breached on the basis
that the education they had been offered by the responsible Local
Authority for the provision of their education was not suitable
given their SEN. Each sought a declaration and damages on the basis
that the Local Authority had acted incompatibly with their rights
under Article 2, Protocol 1. The four defendants sought summary
judgement. It therefore fell to Mr Justice Field to decide whether
the claims had a real prospect of success.
Article 2 Protocol 1
Article 2 Protocol 1 provides as follows
"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
rights of parents to ensure such education and teaching in
conformity with their own religious and philosophical
convictions".
The claimants argued that this right to
education was a right to an education of a minimum standard such
that in the case of children with SEN, they would have a human
right to be educated in accordance with those SEN, particularly as
set out in their Statement. This would have enabled parents of
children with SEN to allege a breach of their child's human rights
in relation to any period of time when they considered they had
been denied an effective and meaningful education.
However, the Court found that case law showed
that this human right was limited to whether a claimant had been
denied fair and non-discriminatory access to the minimum standard
of education available under the domestic system. It did not confer
a right to child with SEN to be educated at a particular school or
to have a particular type, or level, of SEN support. The defendant
Local Authorities were therefore granted summary judgement on the
claims.
Comment
Dissatisfaction with the system of appeals to
SENDIST is increasingly widespread. Counsel for the claimants in
these cases complained of the system's "byzantine complexity", the
time it took for appeals to be determined and the perceived
over-readiness of Judges to refuse permission for judicial review
on the grounds that the SENDIST processes must be allowed to
operate.
It follows that alternative means of
challenging aspects of provision for children with SEN are being
explored. However, this judgement makes it clear that where a
person complains that his SEN are not being met at a time when he
is in a school placement provided by the state, their complaint
will not found a successful claim for breach of their human right
to an education.
Following, as it does, failed human rights
based challenges in the recent cases of Ali (relating to
school exclusions) and Begum (relating to school
uniforms), this latest case should give education professionals
further confidence that the Human Rights Act will only impact where
it can fairly be said that a person has not received the bare
minimum of education.
For more information please contact Mark or David