A v Essex County Council
| Jurisdiction | England & Wales |
| Judge | LORD KERR,LORD CLARKE,LORD PHILLIPS,LADY HALE,LORD BROWN |
| Judgment Date | 14 July 2010 |
| Neutral Citation | [2010] UKSC 33 |
| Date | 14 July 2010 |
| Court | Supreme Court |
[2010] UKSC 33
Lord Phillips, President
Lady Hale
Lord Brown
Lord Kerr
Lord Clarke
Appellant
Nicholas Bowen QC
Shu Shin Luh
Duncan Fairgrieve
(Instructed by Children's Legal Centre)
Respondent
Edward Faulks QC
Andrew Warnock
(Instructed by Weightmans)
Intervener (The National Autistic Society)
Ian Wise QC
Stephen Broach
(Instructed by Clifford Chance LLP)
Introduction
This appeal concerns the scope and content of the right to education under Article 2 of Protocol 1 ('A2P1') of the European Convention on Human Rights ('the Convention').
A was born on 3 July 1989 and is now 21 years of age. At the time the relevant events occurred, between January 2002 and July 2003, he was 12 and 13 years of age. His problems during that period can be summarised in this way. He was autistic and had serious learning difficulties and a severe communication disorder. His behaviour was challenging. He suffered from epilepsy, frequently having 10 to 15 short epileptic fits a day despite medication. He was doubly incontinent, had no concept of danger and required constant supervision. He was dependant upon adults for every need.
A claims damages against the respondent ('Essex') as the local authority with statutory responsibility to assess and provide for his educational and social welfare needs. He does not claim damages for breach of a duty of care owed to him at common law or for breach of statutory duty. Nor is his claim otherwise based upon any public law duty imposed on Essex by the Education Act 1996. His claim is put solely under the Human Rights Act 1998 ('the HRA'). In short, his case is that in the period between January 2002 and July 2003, when he lived at home with his parents and three siblings, he was not at school and he was not provided with any significant education of any other kind such that he was deprived of even the minimum education to which he was entitled under A2P1. It is submitted that Essex acted in a way that was incompatible with his rights under A2P1 and thus unlawful under section 6(1) of the HRA; that he is a victim and entitled to bring proceedings against Essex under section 7(1); and that it would be just and appropriate for the court to award damages against Essex under section 8(1) because such an award is necessary to afford him just satisfaction within the meaning of section 8(3).
A issued these proceedings on 5 May 2005. Essex sought an order that the claim be dismissed under CPR 24 on the basis that it had no real prospect of success. On 13 July 2007 Field J ('the judge') granted the application and dismissed the claim: see [2007] EWHC 1652 (QB). He also refused an application on behalf of A to extend the period of one year provided for in section 7(5) of the HRA. He refused permission to appeal. Three similar applications were heard by the judge in other actions at the same time. He reached the same conclusion in each. None of those is the subject of this appeal. A appealed to the Court of Appeal with the permission of that court. The appeal was dismissed on 16 April 2008: see [2008] EWCA Civ 364. The court upheld the decision of the judge that the claim had no real prospect of success and did not consider the limitation point. The only substantive judgment was given by Sedley LJ, with whom Ward and Hughes LJJ agreed. The Court of Appeal refused permission to appeal to this court. This court subsequently granted permission to appeal.
The statutory framework
A2P1 is entitled "Right to education" and provides:
"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."
The critical part of A2P1 is the first sentence. A's case is in essence, as Sedley LJ put it at para 3, 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 principal domestic statute is the Education Act 1996 ('the 1996 Act'), which replaced and re-enacted the Education Act 1993, which in turn replaced and re-enacted the Education Act 1981. The relevant legislation governing special educational needs at the relevant time is summarised in paras 3 to 12 of the judgment of the judge, which (with very slight variations) are set out in the Appendix to this judgment.
As appears in the Appendix, in A's case Essex were subject to two particular statutory duties: first, a duty under section 324 to make and maintain a Statement of Special Educational Needs and to arrange that the special educational provisions specified in it were made for him; and secondly, a duty under section 19 to make arrangements for the provision of suitable education either at school or otherwise than at school on the basis that, by reason of his illness, exclusion from school or otherwise, he would not receive suitable education unless such arrangements were made for him. However, as I have already said, A does not rely upon a breach of these duties as giving him a cause of action against Essex. He relies only upon A2P1.
The legal principles
The critical provision is the first sentence of A2P1, which provides that "No person shall be denied the right to education". It is not in dispute that that provision confers a right upon everyone. The right has been considered in a number of cases. The most important of them is A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363.
The issue in the Lord Grey School case was not the same as the issue here because the facts were very different. The dispute was between the claimant and the school which had excluded him. While excluded, the pupil was regularly provided with school work and was offered a place at a pupil referral unit which was rejected. He remained out of education for 10 months. By a majority, Baroness Hale dissenting, the House of Lords rejected the submission that there was a breach of A2P1 on the ground that an alternative package of education was on offer and not taken up. Those differences do not in my view affect the legal principles set out by Lord Bingham at para 24 as follows:
"The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No 60856/00) ( unreported) 7 February 2006). 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? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002."
Lord Bingham then said that the question, therefore, was whether, between those dates, the school denied the pupil effective access to such educational facilities as the country provides.
There was some discussion in the course of the argument as to the significance, if any, of the fact that, unique among the Articles in the Convention, the right contained in the first sentence of A2P1 is expressed in negative terms. It was submitted on behalf of A that there is no significance in the negative formulation and that the right to education is an important positive right. By contrast, it was submitted on behalf of Essex that the negative formulation was deliberate and underlines the fact that the Convention does not contain an absolute right to education and, in particular, unlike some other human rights instruments, does not confer social and economic rights. In my opinion, the point is clearly and sufficiently addressed by Lord Bingham in para 24 of the Lord Grey School case quoted above and there is no need to embellish his analysis. It is an approach which is entirely consistent with that of the European Court of Human Rights ('ECtHR'), namely that any limitations on the right must not curtail it "to such an extent as to impair its very essence and deprive it of its effectiveness": Leyla Šahin v Turkey (2005) 44 EHRR 99, at para 154.
Some reliance was placed upon the recent decision of the Grand Chamber of the ECtHR in Oršuš v Croatia(Application no 15766/03) delivered on 16 March 2010. As I read it, the case does not advance the above analysis. It was concerned with the schooling arrangements of Roma children in Croatia. It recognised that Croatia had a margin of appreciation but held (at para 182) that the State must have sufficient regard to the special needs of Roma children as members of a disadvantaged...
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