Delay in providing for special educational needs does not breach Convention right to education says Supreme Court
16 July 2010
Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010
The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically; it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.
This was an appeal against a decision ( EWCA Civ 364,  H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.
The appellant, an autistic boy of 12, suffered from double incontinence and frequent epileptic fits. His special educational needs were such that 1:1 teaching was inadequate; sometimes 2:1 was required. His serious learning difficulties meant that he attended a special needs school from the age of 8 but his behaviour deteriorated as he got older and the parents were asked to withdraw him.
The local authority was unable to provide a home tutor who was qualified to meet his needs. It took some months to arrange a medical assessment and when it was made it recommended a residential placement. It took several more months to find a suitable place, and there was a further delay in the appellant taking that up because of building work at the school. By the time he was accepted at the new school, eighteen months had passed since he had been asked to leave the previous one.
Over a year after the appellant had begun attending the new school, he claimed damages against the local authority for breach of his rights under Article 2 of Protocol 1 (A2P1). The judge granted the local authority’s application for summary judgment on the claim and refused the appellant’s application to extend the period of one year to bring a claim provided for in the Human Rights Act 1998.
The appellant argued that A1P1 guaranteed a minimum standard of education and that the test for determining whether the minimum standard had been met was the same as for compliance with statutory duty under domestic law. He also argued that in the light of the fact that he had been denied his right to education during the 18 months, time for bringing the claim should have been extended.
The Court dismissed the appeal, with Lady Hale dissenting, and Lord Kerr dissenting in part.
The Belgian Linguistic case ((No 2) (1968) 1 EHRR 252) was still the cornerstone ruling for determining state’s obligations under A2P1. The value of the right depended on the education system of the particular state concerned. Failure to satisfy the educational requirements of domestic law would not automatically constitute an infringement of A1P2 . Of all the domestic cases on the right to education, the most important is A v Head Teacher and Governors of Lord Grey School  UKHL 14,  2 AC 363; this ruling reinforced the Belgian Linguistics principle that under A2P1 a person is not entitled to some minimum level of education judged by some objective standard and without regard to the system in the particular State.
Nor was it legitimate to promote the public law duty of the school, not giving rise to a private law action, to a duty under section 6 of the HRA remediable by a claim in damages (R (Holub) v Secretary of State for the Home Department  1 WLR 1359 at 1367). Even though the local authority may have failed over the 18 months in question to comply with its duties under the Education Act 1996 by not providing any significant education to the, it did not follow that there had been an infringement of the article. In sum, the majority in the court agreed with Sedley LJ’s observation in the Court of Appeal, that it was not possible
to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it.
On the limitation point, the court concluded that the first instance judge had been right not to extend the time for bringing the claim. It was highly unlikely that any significant sum would have been awarded had the action been brought in time and had been successful. On limitation under the 1998 Act, see Cameron v Network Rail Infrastructure Ltd (formerly Railtrack Plc) (2007) 1 WLR 163.
Lord Kerr dissented from the majority insofar as he considered that the factual issue of why the local authority had taken so long to assess the appellant’s needs and find the right place had to be fully investigated at trial.
Lady Hale had more wide-ranging objections to the majority’s position.
The original purpose of the right
There are two aspects of Lady Hale’s speech that are worth noting. One points up a very good example of something referred to recently by the Master of the Rolls in his lecture to the European Circuit of the Bar. This is the tendency of Strasbourg judges over the decades to ignore the original purpose of the rights as drafted, but to rush to find some extra meaning, or further state obligation, in the interstices of the Article whose meaning is being determined. Following this example, it is all too tempting for national judges to do the same with Strasbourg case law. So, Lady Hale notes that in its most recent decision on Article 2 of Protocol 1, Oršuš v Croatia,
the Grand Chamber repeated the basic proposition derived from all the cases dating back to the Belgian Linguistic case:
“The right to education, as set out in the first sentence of Article 2 of Protocol No 1, guarantees everyone within the jurisdiction of the Contracting States ‘a right of access to educational institutions existing at a given time’, but such access constitutes only a part of the right to education. For that right ‘to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed’ (see Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, paras 3 – 5; Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 52; and Leyla Şahin v Turkey (2005) 44 EHRR 99, para 152).”
Undoubtedly, it is an important part of making the right effective that pupils and students are entitled to the certificates or other qualifications which they have earned as a result of the studies which they have been able to complete. But the Grand Chamber said that this was ‘inter alia’, thus acknowledging that there may be other rights entailed in making the basic right of access effective.
The determination is palpable, to pick up that ‘inter alia’ and run with it. This judicial activism is no longer winning human rights law many friends.
The second feature of Lady Hale’s opinion worth highlighting is her view that there should be a different consideration for special needs children:
The effect of exclusion for “such pupils” can be so much more serious than for other children. A denial of access which would have no long term impact upon an ordinary pupil may be catastrophic for a pupil with special needs. …The appellant was out of school, and deprived of any real educational input, for more than 18 months. If that is at all typical of the length of time for which ordinary children are kept out of school, it is a sorry state of affairs. For very out of the ordinary children, such as this child, it can be catastrophic.
This may mean that different children have to be educated in different ways. Lady Hale and Lord Kerr were of one mind on this point, that, essentially, because of the severe disabilities from which the appellant suffers, the need for such ‘education’ is, if anything, far more important than for a normal child.
Threshold too low
Such an approach puts the threshold for establishing a breach of Protocol 2 Article 1 far too low, and takes no account of what this would mean for resource allocation in educating children generally. How far does this claim on a state’s resources extend? The main speeches in this judgement do not underplay the degree of learning difficulty suffered by this appellant during the period in question and the extent of the problem faced by the respondent council on this account. When the appellant was finally placed in an institution meeting his educational needs it cost the local authority nearly a quarter of a million pounds per annum.
There is nothing in the jurisprudence under A2P1, domestic or Strasbourg, to suggest that a particular group of pupils with particular educational requirements are entitled to education of a particular kind or quality, other than that prevailing in the state in question. Nor is there any Convention guarantee of education at or by a particular institution.
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