Education Law in UK Law

There is no Convention guarantee of education at or by a particular institution. The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?

The correct approach is first to ask whether there was a denial of a Convention right. In the case of article 2 of the First Protocol, 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.

It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law.

This seems to me to be, on its face, an example par excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer. The duty to the pupil would march hand in hand with the professional's responsibilities to his own employer. He should exercise reasonable skill and care when assessing the child and then advising the education authority.

For these reasons I reach the conclusion that an education authority owes no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Act of 1981.

If, at the other extreme, all the factors of relevance to the best interests of the child consideration (save for the child's and/or parent(s) own claim that they want to remain) point overwhelmingly to the child's interests being best served by him returning with his parent(s) to his country of origin (or to one of his parents being expelled leaving him to remain living here), then very little by way of countervailing considerations to do with immigration control etc. may be necessary in order for the conclusion to be drawn that the decision appealed against was and is proportionate.

If we were to do that here, I feel I would apply the test submitted by Mr. Lester. The words "ordinarily resident" mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration. On that test all those students would qualify for a mandatory award.