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special educational needs and human rights

19 July 2007

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 childs 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 systems "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.

training and events

14Oct

ISBL regional Conference Sheffield

Browne Jacobson’s Associate Sophie Jackson discusses the rise in growth of SEN and the impact of this on schools. Please note that this event was postponed from June 2020.

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19Nov

CST Inaugural Annual Conference Hilton Metropole, NEC, National Exhibition Centre, Pendigo Way, Marston Green, Birmingham, B40 1PP

Come and meet the team at CST’s Inaugural Annual Conference this summer. Partner Nick MacKenzie will also be delivering a workshop on governance leadership.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mark Blois

Mark Blois

Partner and Head of Education

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