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SEN and Human Rights
On 16 April 2008, in the case of A –v- Essex County Council, the
Court of Appeal provided a further judgement relevant to the issue
of Special Educational Needs (SEN) and its interface with human
rights. Those with an interest in SEN will recall that last summer
the High Court gave judgment in four education claims brought
against various Local Authorities under the Human Rights Act 1998
('the Act'). All of the claimants had Statements of Special
Educational Needs (SEN) and 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, this 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".
Each claimant alleged that their human rights
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 and sought a
declaration and damages. However, the defendant Local Authorities
were granted summary judgment on the claims on the basis that
Article 2 Protocol 1 did not confer a right on a person with SEN to
an education in any particular school or of any particular type and
that the claims therefore had no realistic prospect of success.
One of the children who suffered from autism,
epilepsy and incontinence, subsequently appealed to the Court of
Appeal. He claimed that the relevant Local Authority had failed to
provide him with even minimally suitable provision for his
education for a period of around 19 months. It was alleged
that in addition to discrimination in the enjoyment of the right to
education he had also suffered an unjustified disruption of his
private and family life.
However, the Court of Appeal held that in
order to succeed in a claim that his right to education had been
breached, the child would need to have established that he had been
abandoned by the state education system, which he could not do on
the facts.
Lord Justice Sedley further ruled that the
European Convention on Human Rights was not a "panacea of every
ill" and that whilst the child had had to stay at home without an
education, with consequent disruption to his well-being, did not
arguably violate his right to respect for his family
life.
This judgment reiterates that where a pupil
complains that his SENs are not being met at a time when he is in a
school placement provided by the state, there will be no successful
claim for a 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), the Court of Appeal’s stance should give
education professionals further confidence that the Human Rights
Act will only impact where it can fairly be said that that a person
has not received the bare minimum of education.
For further information or advice, please contact
Mark
Blois.