A v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Hughes,Lord Justice Ward |
| Judgment Date | 16 April 2008 |
| Neutral Citation | [2008] EWCA Civ 364 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2008 |
| Docket Number | Case No: A2/2007/1792 |
[2008] EWCA Civ 364
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE FIELD
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Hughes
Case No: A2/2007/1792
HQ 05X01273
Mr N Bowen and Miss Shu Shin Luh (instructed by Childrens Legal Centre) for the Appellant
Mr A Warnock (instructed by Messrs Weightmans) for the Respondent
Hearing date: Monday 10 March 2008
The claim to which this appeal relates was brought on behalf of a severely disabled child, anonymised as A, for damages for breach of his human rights. It was dismissed by way of summary judgment by Field J [2007] EWHC 1652 (QB) on the ground that it had no realistic prospect of success; but, since the claim had been brought out of time, for reasons which he went on to give he would in any event not have granted the necessary enlargement of time. His judgment dealt not only with A's claim but with three others brought on similar grounds. Although he dismissed all of them, it is this one alone which, on cost grounds, it has been decided to bring before this court on the issues of principle which it raises.
Pursuant to permission to appeal granted on consideration of the papers by Moore-Bick LJ, Nicholas Bowen therefore had a twofold task on the claimant's behalf: to demonstrate that the claim does have a realistic prospect of success, and to establish that the judge was wrong to hold that in that event time should not be enlarged. At the conclusion of argument on the first limb, however, we indicated that, for reasons which would be given, the appeal failed on the first issue, with the consequence that argument on the enlargement of time would not be needed.
A's claim is for damages under the Human Rights Act 1998 for breach by his local education authority, the defendant, of the right to education vouchsafed by art. 2 of the First Protocol (“A2P1”) of the European Convention on Human Rights, and also of arts. 3, 8 and 14 of the Convention itself. His essential case is that, for want of even minimally suitable provision for his education, he was shut out of the state system for 18 or 19 months. The consequences are said to have amounted to inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the A2P1 right.
The articles in question provide as follows:
Article 3
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
Article 8
1. Everyone has the right to respect for his private and family life, his home and correspondence.
Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
First Protocol, Article 2
No person shall be denied the right to education.
The right to education
The fact that A is a gravely disabled child is as central to the defendants' case as it is to A's. One can do no better than adopt Field J's account:
A is severely autistic, suffers from epilepsy, has severe learning difficulties and is doubly incontinent. At all material times his behaviour was extremely challenging. He self-harmed and wore arm splints and a helmet during the day to protect his arms and skull. Despite medication he had 10–15 short epileptic fits a day.
He attended L S School, a Community Special Day School for children with severe learning difficulties, from the beginning of his statutory schooling in 1995 until 17th January 2002. In May 2001 teachers at the school recorded their concerns about his behaviour and the school's ability to deal with him.
A's amended SSEN of 6th November 2001 named L S School as an appropriate placement.
On 18th January 2002 A stopped attending the LS School following notification to his parents that he should be removed from the school. Thereafter he was kept at home pending a medical assessment because his propensity for violence constituted a danger to other pupils and staff. The school sent work to A's home for him to do in the form of two boxes of educational activities – touch books and bubbles. Speech and language therapy was provided to him on Wednesday and Thursday mornings from March 2002 and an occupational therapy assessment of A's home was arranged and carried out. In May and June 2002 A attended activity sessions at L S School whilst his parents attended Makaton classes and from about the end of June 2002 until 24th July 2002 he attended the L S School for individual teaching sessions lasting 45 minutes each.
Following a review of A's SSEN the defendant informed A's parents and his solicitors on 31st July 2002 that it did not propose to make any amendments to the statement.
A was medically assessed between the 9th and 13th September 2002 at the St Piers National Centre for Young People with Epilepsy. This was the earliest that the assessment could take place. A was diagnosed with “generalised seizure disorder; severe learning disability; and challenging behaviour (aggressive and self injurious behaviour)”. The report recommended a residential programme offering the benefit of a 24 hour curriculum with consistent behavioural strategies at a specialist school. He needed 1:1 (at times 2:1) supervision and support at all times. As a result of having been at home unsupported since February 2002, he was under-stimulated and his behaviour and self harming had intensified.
The defendant was informed orally of the outcome of the assessment on 13th September and by 16th October 2002 had put funding in place for a residential placement.
Between 16th October 2002 and 17th December 2002 the defendant wrote to 26 schools seeking a placement for A. In mid-December arrangements were made for him to attend sessions at the Sensory Room on Tuesday and Thursday mornings and he continued to receive two 45 minute sessions at the L S School. In late January 2003 he began attending L House for respite care 3 days a week, 2 hours a day.
On 9th February 2003 K School offered a place for A at a cost to the defendant of £223,589 per annum, which the defendant was willing to pay but A's parents asked if they could continue investigating other schools. Eventually the place at K School was accepted and A started there on 28th July 2003. The place did not become available until this date because building works at the school overran.
Since taking up the place A has progressed well. His overall health and behaviour have improved, he is receiving appropriate education, and his self-harming is very much reduced.
In a report on A dated 23rd November 2006, a Consultant Community Paediatrician states that there is no doubt that A's development achievements regressed during the period he was out of school and that his behaviour deteriorated due to the lack of demands made upon him. However, the effects of his time out of education in terms of his learning and general development appeared to have been temporary, but in terms of his behaviour there may have been a more permanent effect.
The 19 months during which A was out of school had an adverse impact not only on A but also on his parents who have a total of six children, three of whom, in addition to A, have varying degrees of special educational needs.
One thing needs to be noted at the outset. The council's reassertion in its statements of A's special educational needs in November 2001 and July 2002 that L S School was an appropriate placement for him was neither appealed against at the time to the Tribunal nor challenged in these proceedings. In fact the foundation of the present claim has been that A ought to have remained in L S School until July 2003 when his successful placement at K School began. Nor, however, has it been suggested that L S School was acting otherwise than responsibly when it decided that for the sake of the safety of others it could not continue to have A there. The asserted systemic failure lies in the proposition that the exclusion was unlawful (because it was accomplished by asking A's parents to keep him at home and so was neither permanent nor for a fixed term of 45 days or less) and that nothing amounting to alternative education was provided or offered, with the result that the substance of the A2P1 right was lost.
On this limb of the case Field J concluded:
In my judgement, it is clear from Lord Grey that a person of compulsory school age who has special educational needs has no right under A2P1 to be provided with an education of any particular type or in any particular school. Instead, the right is a non-absolute right not to be denied access to the education system operating in the UK, including the SENDIST processes for the resolution of disputes over SSENs. Thus, in cases where a person complains that his special educational needs are not being met at a time when he is in a school placement provided by the state, or such a placement is available for him, his complaint will not found a successful claim under HRA for breach of A2P1. Further, exclusion from school will only be a breach of A2P1 if on the facts the exclusion was for such a long period and there was such a lack of alternative education at another school or in the form of work to be done at home that it can fairly be said that that person has not received the bare minimum of...
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