Landmark Judgment - A v Essex

Supreme Court shines light on complex right to education issue

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 children.

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 rights.

“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.”