UK: A Uniform Approach To Education

Last Updated: 5 April 2011
Article by Tom Walshaw

Does the right to an education under the Human Rights Act 1998 open up a new route to compensation?

The recent case of A (Appellant) v Essex County Council (2010) examined the value of the "right to education" under the Human Rights Act 1998. To what extent must a local authority provide all children with an effective education, and can it take into account their special needs and the demands on resources?

Background facts

"A", now in his early twenties, is severely autistic, suffers from epilepsy and has severe learning difficulties. As a child, he attended a community special day school maintained by Essex CC known in the litigation as LS School. In May 2001, when he was aged 12, A's teachers expressed concern about his behaviour and the school's ability to deal with him. A would self harm, was doubly incontinent, would suffer regular epileptic fits, had no concept of danger and required constant supervision.

By January 2002, A's behaviour had deteriorated to the point where LS School could no longer cope with him, and his parents were asked not to take him into school for health and safety reasons. The intention of all the professionals concerned, including LS School, was for A to receive an urgent medical assessment at the National Centre for Young People with Epilepsy at St Piers.

Unfortunately, the assessment could not take place until September 2002. In the meantime, LS School sent work and activities for A to do with his parents at home and provided him with some weekly speech and language therapy sessions. It was acknowledged that A's educational needs were not being met during this time, but neither Essex CC nor LS School were able to provide a home tutor who was qualified or able to meet A's needs.

The September assessment recommended that A should be placed in a 24 hour residential school for children with challenging behaviour. Between October and December 2002, Essex CC wrote to 26 schools seeking a placement for A, but without success.

At a meeting in 2003, professionals acknowledged that his home environment was having a negative impact on A's behaviour because he remained under-stimulated and bored and needed to be supported appropriately. In January 2003, A started to receive respite sessions three mornings a week at the Limbourne Centre, where he was also offered tuition. However, the Limbourne Centre also had difficulties with A and felt they were minding him, rather than teaching him.

In February 2003, Kisimul School offered a place for A starting on 28 July 2003 at a cost of Ł223,589 per annum, which Essex CC agreed to pay. After taking his place at the school, A progressed well, his overall health and behaviour improved and he received an appropriate education.

A's case

A's case was that Essex CC had breached his right to education under the Human Rights Act and he was entitled to damages. He argued that there was an obligation on the local authority to provide him with an effective education, taking into account his special needs. A claimed he was denied that right to an effective education during the 18 months that he was out of school and should be compensated.

His claim was struck out at first instance, as having no realistic prospect of succeeding. That was upheld by the Court of Appeal and so A appealed to the Supreme Court.

Supreme Court decision

Their Lordships held that the Human Rights Act did not give A an absolute right to an education that catered for his special needs during those 18 months. The Act simply required that there be a system of education in place that did not discriminate against one section of the community.

The value of the right to education depends on the education system in place. A had been denied schooling because the resources needed for his medical assessment were not immediately available and it took time to find A a place at a suitable school. The right to education must have regard to the limitations on facilities.

There may have been a breach of the domestic education legislation which requires a system of provision for those with special educational needs and tuition at home, but that did not lead without more, to a breach of the Act: there had to be discrimination shown too.

Essex CC had done its utmost to have A properly assessed and, thereafter, find him a suitable placement. Although the interim measures put in place were arguably open to criticism, that was not the question, and their shortcomings did not deny A his right to education.

Conclusion

  • This claim would probably have failed under traditional negligence principles as Essex CC was doing all it could to provide education.
  • It is very important news that the claim here failed under the Human Rights Act. It is important that the right to a fair and non-discriminatory education under the Human Rights Act takes into account the resources and facilities available in the particular area of the contracting State. If not, it would provide a back door route to compensation and therefore exposure for local authorities on claims that would currently fail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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