Landmark Judgment - A v Essex
Supreme Court shines light on complex right to education
The Supreme Court has handed down a landmark judgment in a case
involving a severely disabled boy whose parents sought compensation
for damages after he was out of school for more than a year whilst
the council sought to find him a suitable placement.
The issue at the heart of the case was whether this absence from
school could be considered a breach of his human right not to be
denied an education under Article 2 of the First Protocol (A2P1) of
the European Convention on Human Rights.
The case of A v Essex County Council dates back to 2002 when the
parents of a boy known only as ‘A’ brought a claim against the
local authority – alleging that their autistic son had been shut
out of the state system for over 18 months.
A was severely autistic, had epilepsy and suffered from severe
learning difficulties. He attended a day school for children with
similar disabilities from 1995 until 2002. During this time, his
teachers grew increasingly worried about his behavioural problems
and told his parents that he was likely to harm himself and other
In January 2002, the school notified A’s parents that he should
be removed because he had become a danger to both other pupils and
the staff. While his parents awaited a medical assessment to
determine the best way forward, he remained at home. During this
time the school provided work for A to do at home. Speech and
language therapy was provided every Wednesday and Thursday mornings
from March 2002 and an occupational therapy assessment of A’s home
was also arranged and carried out.
In addition, the local education authority arranged for A to
attend activity sessions at his former school. Further, A attended
his former school for individual teaching sessions lasting around
45 minutes each in July 2002.
The complex medical assessment took place in September 2002 and
the conclusion was that A was under-stimulated – a problem that had
intensified as a result of being out of school. The recommendation
was for A to follow a residential programme at a specialist school
which was organised and funded by Essex County Council at a cost to
the council of £233,000 per year; by July 2003 A had settled down
in a new school and his behaviour improved.
In 2007 A brought a claim against the local education authority
before the High Court on the basis that the time out of school
amounted to a violation of his human right to education.
The claim was dismissed by the High Court which ruled that the
right under A2P1 was not a right to be provided with an education
of any particular type or in any particular school. Rather, the
right was a non-absolute right not to be denied access to the
education system operating in the UK.
The claim was also dismissed on limitation grounds as it had
been brought outside the 12 month limitation period and this time
period was not extended because it was held there is a significant
public interest in public law claims against the public bodies
being brought expeditiously.
The Court of Appeal upheld this decision and today the Supreme
Court has confirmed both previous decisions in finding for Essex
County Council. The test when considering whether the right has
been violated is a pragmatic one and regard must be had to all
relevant circumstances and the resources available. The request to
A’s parents to keep him at home was forced upon the school. The
length of time it took the council to make better provision for him
was regrettable but it was faced with a difficult and complex
situation and the council was working towards a long term solution
that would meet A’s considerable needs. Accordingly it could not
reasonably be argued that the council had deprived A of access to
its educational facilities.
Andrew Cooper, the Director of the Public Sector Group at law
firm Weightmans LLP who represented Essex County Council said the
judgment is an important one for local authorities:
“Cases involving children with learning disabilities are complex
and must be approached sensitively with the needs of the child at
the heart of any decision making process.
“The Human Rights Act is a very important piece of legislation
but, as this judgment makes clear, the European Convention rights
that the Act brings into effect are not a panacea for all ills. Our
domestic legislation provides a sophisticated public law system for
the education of children with special educational needs. This
system already affords a consistent means of protecting fundamental
“If A’s argument had been accepted, it would have created the
potential for a flood of nominal damages claims against local
authorities all of which would inevitably have been pursued
entirely at significant public expense.
“The decision is a welcome one for local authorities and should
mean an end to human rights damages claims in this area.”