A v Essex County Council

Article 2 of the First Protocol protects effective access to the state education system and at least its basic minimum. It does not guarantee a particular school or type of education. A school’s public-law duty, or an irregular exclusion, does not itself create a damages claim under the Human Rights Act 1998: the claimant must show denial of a Convention right, such as systemic failure or abandonment resulting in no minimum education. A delayed specialist placement, with intelligible reasons and interim provision, did not meet that threshold. Article 14 was not engaged by necessary, needs-based differential treatment absent evidence of inappropriate discrimination. The facts also fell short of the thresholds for Articles 3 and 8.

A, a severely autistic and epileptic child with profound learning and behavioural needs, stopped attending his community special school after it became unable to manage risks. He remained mainly at home while assessed and while Essex County Council sought a specialist placement, receiving limited educational and therapeutic provision. He began a suitable residential placement about 19 months later.

He claimed damages under the Human Rights Act 1998 for breach of Article 2 of the First Protocol and Articles 3, 8 and 14 of the European Convention on Human Rights. Field J granted summary judgment, holding that the claims had no realistic prospect of success, and said that he would not extend time in any event: [2007] EWHC 1652 (QB). The appeal challenged the merits conclusion and, contingently, the refusal to enlarge time. The central issue was whether the period without a suitable school placement amounted to denial of access to the education system or breach of the other Convention rights.

Appeal dismissed. Sedley LJ gave the leading judgment, with Hughes and Ward LJJ agreeing. The court held that none of the claims had a realistic prospect of success.

1. Right to education. The House of Lords’ decision in Ali v Lord Grey School [2006] 2 AC 363 established the relevant approach. Article 2 of the First Protocol protects access to the educational system provided by the state and its basic minimum. It does not confer a right to a particular school or type of education. The court acknowledged a possible tension between the formulations of Lord Bingham and Lord Hoffmann, but held that it did not affect this case, which was advanced as complete exclusion from the system.
2. An irregular or extra-legal exclusion does not itself convert a school’s public-law duty into a damages duty under section 6 of the Human Rights Act 1998. The court accepted that Strasbourg jurisprudence could recognise a breach where a system had abandoned a child, but A had not been abandoned. The delay, although longer than it should have been, was intelligibly explained by the need for specialist assessment and placement. The authority sought a placement, provided interim activities and therapy, and ultimately secured suitable provision. There was no systemic failure or denial of the basic minimum of education.
3. Article 14. There was no evidence of inappropriate discrimination. Given A’s profound needs, treating him differently from other children was necessary and did not show that he had been disadvantaged.
4. Articles 3 and 8. The pleaded stress, under-stimulation and deterioration did not reach the Article 3 threshold. Although aggravation of a naturally occurring condition may engage Article 3, treatment ordinarily requires a deliberate act or omission and the threshold lies above simple destitution. There was no sufficient point of entry into Article 8(1). The lack of meaningful educational provision did not, without more, invade the primary right to respect for private or family life.
5. The court rejected the argument that Convention rights should operate as a substitute or backstop for interlocutory mandatory relief in special educational needs proceedings. The question whether time should be enlarged was not determined.

1. Court of Appeal (Civil Division): Dismissed the appeal on the merits. It was unnecessary to decide whether time should have been enlarged.
2. Queen’s Bench Division: Field J granted summary judgment on the basis that the claims had no realistic prospect of success and contingently declined to enlarge time: [2007] EWHC 1652 (QB).