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A v Essex County Council, Supreme Court, 14 July 2010

20 July 2010
The issues

Human rights – right to education – Article 2 of Protocol 1 of the European Convention on Human Rights.

The facts

A was born in 1989. The relevant events occurred between January 2002 and July 2003 when he was 12 and 13 years of age. A was autistic, with serious learning difficulties and a severe communication disorder. His behaviour was challenging. He suffered from epilepsy, fitting 10 to 15 times per day despite medication, was doubly incontinent, had no concept of danger, and required constant supervision.

Essex County Council maintained the LS school, a community special day school for children with severe learning difficulties. In July 1993 issue made statement of special educational needs for A and named LS in part iv. By May 2001 A’s behaviour was deteriorating and the school, in the annual review raised concerns about his behaviour and asked for more resources. His behaviour deteriorated further and eventually, following a meeting in which the school emphasised that A’s continued presence in class posed a risk to the health and safety of other pupils, the parents agreed to withdraw him. The intention at that time was for A to receive an urgent medical assessment at the National Centre for Young People with Epilepsy. The assessment did not take place until mid September 2002. The Education Authority was in the meanwhile unable to provide a home tutor qualified to meet A’s needs. The eventual assessment recommended a residential placement. Initially the parents were opposed to this solution but eventually they accepted the recommendation and between October and December 2002 the Education Authority wrote to 26 schools, unsuccessfully seeking a placement. In February 2003, Kisimul School offered a place for A at a cost of £223,589.00 per annum, which Essex County Council agreed to pay. The placement did not become available until July 2003 because of construction work at the school. A took up his place, where he progressed well. He left in the summer of 2008 to live in residential therapeutic accommodation.

A brought a claim for damages against the Education Authority based solely under the Human Rights Act 1998. It was argued for A that Essex County Council had acted in a way that was incompatible with his rights under Article 2 of Protocol 1, namely his right to education and that this was therefore unlawful under Section 6(1) of the Human Rights Act; that A was a victim and entitled to bring proceedings against Essex County Council under Section 7(1) and that it would be just and appropriate for the Court to award damages against Essex County Council under Section 8(1) because such an award was necessary to award in just satisfaction within the meaning of Section 8(3). Essex County Council applied to strike out. The High Court Judge granted that Application and dismissed the claim. A Appealed to the Court of Appeal which dismissed the Appeal. A was subsequently granted permission to Appeal to the Supreme Court.

The agreed issues were:

i) Whether Article 2 Protocol 1 guaranteed a charge of absolute minimum standard of education and if so how it was to be measured;
ii) If Article 2 Protocol 1 guaranteed an absolute minimum standard of education, against what criteria was an acceptable minimum to be judged?

The decision

The question was not whether Essex County Council was at fault but whether the limitations on A’s education impaired the essence of his right to education or whether he had been deprived of effective access to education. It was argued for the Claimant that implicit in the provision that no person should be denied the right to education was the positive obligation on the State to provide a minimum of effective education for each individual child. Where the child has special educational needs, it was argued that the State had to cater for those needs to the extent necessary to achieve that minimum standard of education. It was submitted for A that this was an absolute right.

The authorities, such as they were, did not support the proposition that there was a positive obligation. On the contrary, they assumed correctly that all contracting States had a system of education and limited the positive obligation imposed by Article 2 Protocol 1 to regulating education in such a way as to give access without discrimination to that system. As Lord Bingham had said in A v Head Teacher & Governors of Lord Grey School (2006), there was no right to education of a particular kind or quality other than that prevailing in the State.

The value of the right depended upon the system of education that was in place in the particular State. Where, for example, a State provided facilities for the education of adult illiterates, the convention obliged them to ensure that adult illiterates had access to those facilities. It did not oblige States that did not have such facilities at all to establish them. Article 2 Protocol 1 did not therefore impose a positive obligation on a contracting State to provide effective education for children who had special educational needs. Moreover, it was not right to equate a failure to provide the educational facilities required by the domestic law of the State with a denial of access to education under Article 2 Protocol 1. A had been denied the very special schooling he needed because there were not immediately available the resources required to carry out the medical assessment that he needed, nor thereafter a place in the school that would satisfy his needs. Article 2 guaranteed fair and non-discriminatory access for children to the special facilities that were available. If however the facilities were limited so that immediate access could not be provided, then the right of access must have regard to that limitation. The agreed issues would be answered therefore in this way.

Article 2 Protocol 1 did not guarantee that a child with special educational needs would receive the special educational provision required by the Education Act. A failure during the period of 18 months to cater for A’s special needs did not constitute a denial of A’s right to education under Article 2 Protocol 1. Moreover, the claim had been issued outside of the 1 year limitation period that operated under the Human Rights Act. The Court had a discretion to extend that period if it considered it equitable, having regard to all the circumstances.

Of the five Judgments on this point, Lord Clarke expressed no view, Lords Phillips and Browne agreed that the Judge’s decision to refuse to extend the limitation period was correct, and Lord Kerr, also taking the view that the Judge was correct said that it was highly unlikely that a significant sum by way of damages would have been awarded if the action had been brought within time and had been successful and that in fact a Court might well have concluded that no award of damages was necessary to provide just satisfaction. He agreed with the Judge’s analysis that it was not equitable to extend the limitation period because of an unjustified delay on the part of the Children’s Legal Centre, which was very familiar with the law, familiar to education and who had been instructed as early as April 2002; and that bearing in mind that from A’s point of view there would be little to be gained in seeking a declaration of infringed rights, taking into account that it was far from certain that a Court would conclude that an award of damages was necessary, a Court should take into account the disproportionality of allowing the matter to proceed.

Appeal dismissed. Lady Judge Hale dissenting and Lord Kerr dissenting in part.

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