Ali v Lord Grey School

The Convention right to education takes the form of the educational provision made by domestic law. A breach of school-exclusion rules does not automatically violate that right. An otherwise lawful temporary exclusion rendered unlawful by procedural defects may be compatible with the Convention where appropriate substitute education is offered. An indefinite exclusion, or exclusion continued beyond the statutory maximum without lawful permanent exclusion or readmission, may deny the right despite an offer of homework. The local education authority’s fallback duty under the Education Act 1996 does not displace the school’s primary duty to an enrolled pupil. Reasonableness is not a defence to illegality, although substitute education and the pupil’s conduct may affect damages under the Human Rights Act 1998.

A, a pupil at Lord Grey School, was initially excluded after being suspected of involvement in a school fire. The exclusion was first indefinite, then extended through a series of fixed periods. After criminal proceedings were discontinued, the school failed to readmit him and later purported to remove him from the school roll. He remained without schooling until entering another school.

Stanley Burnton J found several breaches of the statutory exclusion regime but rejected the claim for damages for breach of article 2 of the First Protocol. His decision is reported at [2003] EWHC 1533 (QB) and [2003] 4 All ER 1317. The appeal concerned whether the exclusion and removal violated the right to education and whether liability rested with the school or the local education authority.

Appeal allowed in part. The Court of Appeal, in a judgment delivered by Sedley LJ with Clarke LJ and Butler-Sloss P agreeing, upheld the dismissal of the damages claim for 8 March to 6 June 2001. It allowed the appeal for 7 June 2001 to 20 January 2002 and remitted the claim for assessment of damages, unless agreement could be reached.

1. The headteacher and governing body of a maintained school were public authorities under section 6 of the Human Rights Act 1998. Their functions were publicly funded, statutory and directed to serving the community.
2. Under the First Protocol, article 2, as explained in the Belgian Linguistic case (1968) 1 EHRR 252, the right takes the form of the educational provision existing under domestic law. Domestic law is the indispensable starting point, but a violation requires a denial of meaningful access to that provision. The court also distinguished R (L (a minor)) v Governors of J School [2003] 2 AC 633, since that decision concerned the extent of access capable of constituting reinstatement.
3. Reasonableness does not answer a charge of illegality. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 and the Commission decisions in Whitman v United Kingdom (13477/87; 4 October 1989), Sulak v Turkey (1996) 84-A DR 98 and Yanasik v Tukey (1994) 74 DR 14 established only that reasonable restrictions may be compatible with the Convention.
4. For the first three phases, the initial indefinite exclusion was unlawful, and later exclusions involved procedural failures. Nevertheless, appropriate work was provided or offered. The governing-body breach would have mattered only if it was more probable than not that the exclusion would have been ended.
5. After the 45-day statutory maximum expired, the school had to readmit A or lawfully exclude him permanently. Its continuing exclusion was a legal nullity. The offer of homework did not prevent a denial of education because the exclusion was prohibited by law and lacked any factual basis.
6. Removal from the school roll was an administrative consequence of the underlying acts and had no independent legal effect. It did not terminate the continuing denial of education. The local education authority’s duty under section 19 of the Education Act 1996 could mitigate loss, but did not displace the school’s primary duties. The court directed attention to Anufrijeva v Southwark LBC [2004] 1 All ER 833 when assessing damages.

1. Court of Appeal (Civil Division): allowed the appeal in part and remitted the damages issue.
2. High Court of Justice, Administrative Court: Stanley Burnton J found the exclusions and removal from the roll unlawful but rejected damages for breach of article 2 of the First Protocol: [2003] EWHC 1533 (QB); [2003] 4 All ER 1317.