There's a right to education, right? At least that's the Convention. But when does a claimant have the right to rely on the Right? That was what the House of Lords had to unravel on 22 March 2006 in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14
Background
The case concerned Abdul Hakim Ali (the Respondent) who at the material time in March 2001 was a pupil of the Lord Grey School in Bletchley. He was then aged 13-14 and therefore of compulsory school age. The Respondent was seen with two other boys running away from a fire in an empty class room. The Fire Brigade said that the fire had been started deliberately and the boys were charged with arson. The School told the boys to remain away until the police investigation had concluded. However, the School sent work to the Respondent's home and his form teacher kept in touch with him. The Respondent was also allowed to return to the School to sit his Standard Assessment Tests and the School also referred the Respondent to the Local Education Authority (LEA) for the provision of education otherwise than at the School.
After the Crown Prosecution Service had decided to discontinue the prosecution for lack of evidence, the headteacher had written on two occasions to the Respondent's parents inviting them to a meeting at the School to 'discuss the way forward'. It was envisaged that the three pupils in question would redecorate the fire-damaged room under the supervision of a painter and decorator as part of the school's citizenship programme. However, neither the Respondent nor his family attended the proposed meeting. The head-teacher subsequently wrote to the Respondent's parents informing them that following their failure to appear at the meeting in question she was removing the Respondent from the School roll. Although the Respondent and his family were uncertain for some time as to whether they wished the Respondent to return to the School, his father eventually wrote to the headteacher seeking his son's reinstatement. In so doing he pointed out that this was a very important year for his son who had already missed months of schooling. The School responded indicating that, having heard nothing from him, the place had been allocated to another pupil and, being over subscribed, it could not take the Respondent back onto the School roll. The father was advised to contact the nearest secondary school or the LEA for a school place which he successfully did.
The Respondent subsequently started an action for damages claiming that contrary to section 6 of the Human Rights Act 1998 the School had acted incompatibly with a Convention right. The right in question was Article 2 of the First Protocol to the Convention (Right to Education). This provides that: '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 right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.' House of Lords Decision
Lord Bingham considered whether at the material times the School had denied the Respondent effective access to 'such educational facilities as this country provides'. In his opinion 'the facts compel the conclusion that it did not'. He noted that the School:
'. . .invited the respondent's parents to collect work, which they did not. It referred the respondent to the LEA's Access Panel, which referred him to the PRU [Pupil Referral Unit], an education provider; the PRU's offer of tuition was declined. The school arranged a meeting to discuss the respondent's readmission, which the respondent's family chose not to attend.' Whilst the head-teachers reaction to this non-attendance was criticised in the courts below as over-hasty which might have been so, Lord Bingham was 'not altogether surprised that she treated this unjustified non-attendance as a repudiation by the family of the pupil-school relationship.'
The head-teacher again gave the parents contact details at the PRU. However, the 'LEA's attempts . . .to secure the respondent's readmission to the school or admission to another school were thwarted by the family's uncertainty what they wanted.' Nevertheless, as 'soon as they made up their minds, a place (although not at the school) was promptly found.'
In the circumstances, whilst Lord Bingham observed that it is a matter for regret when any pupil 'not least an able pupil like the respondent, loses months of schooling' that was nevertheless not 'a result which can, in this case, be laid at the door of the school'. Lord Hoffman similarly found no denial of a Convention right. In the case of Article 2 (see above) that:
'. . .would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education. As there was no such failure, that is the end of the matter.'
In Lord Hoffman's view it is only where a denial of a Convention right is established that domestic law falls to be examined in order to discover which public authority, if any, is liable under section 6. Along with Price and Kay on 8 March 2006 (possession and proportionality) and Shabina Begum on 22 March 2006 (school uniform), Ali is the third recent decision of the House of Lords which has narrowed the applicability scope of some key Convention rights in favour of local authorities. These decisions will no doubt be welcomed by authorities who are constantly struggling to contain unlimited demand within finite resources.
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