A & Ors v Essex County Council & Ors

The right to education under Article 2 of Protocol 1 does not guarantee education of a particular type, quality or at a particular school, including education tailored to special educational needs. It guarantees effective access to the domestic education system and, at minimum, access to basic education. Exclusion will breach the right only where its duration and the lack of alternative provision mean that the child has been denied that minimum. Complaints about the suitability of a placement, compliance with a special educational needs statement or domestic-law errors do not ordinarily establish a breach. Article 8 requires sufficiently serious interference and culpability, while Article 14 requires an analogous comparator. The claims therefore had no real prospect of success.

Four children with special educational needs brought claims for declarations and damages under section 7(1)(a) of the Human Rights Act 1998 against their local authorities. They alleged breaches of Article 2 of Protocol 1, Articles 8 and 14 of the European Convention on Human Rights, and, in A’s case, Article 3. The claims concerned exclusions, alleged failures to provide meaningful or effective education, unsuitable placements and delays in arranging provision.

The defendants applied for summary judgment under CPR Part 24. The claimants also sought extensions of the one-year limitation period under section 7(5)(b) of the 1998 Act.

1. Article 2 of Protocol 1. The right is a non-absolute right of access to the education system operating in the United Kingdom. It does not confer a right to education of a particular type, quality or at a particular school, nor a right to provision matching the child’s special educational needs statement. The system includes the statutory dispute-resolution processes before SENDIST.
2. Where a child is in a state-provided placement, or such a placement is available, dissatisfaction with the suitability or quality of the education does not establish a breach. Exclusion is permissible as a regulation of education. It becomes a breach only where the exclusion is sufficiently long and alternative education or work is so lacking that the child has been denied the bare minimum of education.
3. The claims under Article 3 had no real prospect of success. The stress, under-stimulation and burdens experienced by A and his family did not approach the minimum severity required to constitute degrading treatment.
4. The Article 8 claims were also bound to fail. The alleged educational failings did not involve the necessary seriousness or culpability, and the authorities had taken steps to arrange assessment, support and alternative placements.
5. The Article 14 claims were hopeless because children with special educational needs were not in an analogous situation to children without those needs or to children lawfully excluded.
6. The court treated the limitation discretion under section 7(5) as broad but subject to the significant public interest in expeditious public-law claims. The claimant bears the burden of showing that an extension is equitable. Delay, proportionality, the availability of judicial review or other remedies, the claimant’s personal interest in relief, and prejudice to the public authority were relevant. None of the claims justified an extension.
7. The defendants’ applications for summary judgment under CPR Part 24 succeeded. The applications for extensions of time were refused.