A v Essex County Council

The Supreme Court considered whether the State had denied a child the right to education under Article 2 of Protocol 1 to the European Convention on Human Rights (A2P1) where, for a period of some 18–19 months, a boy with severe autism and complex needs received little or no effective education while awaiting multidisciplinary assessment and a residential placement. The court applied the established Convention approach that A2P1 guarantees access to the educational system provided by the State rather than an absolute entitlement to a particular type or quality of provision.

The majority held that a violation of A2P1 requires deprivation of the very essence of the right or denial of effective access to the State’s available educational facilities; domestic breaches of statutory duties (for example under sections 19 and 324 of the Education Act 1996) do not automatically amount to Convention violations. Given the need for a multi-disciplinary residential assessment and the time taken to secure a suitable residential placement, the court found that, on the facts taken at their highest for the claimant, there was no real prospect of establishing a denial of the very essence of the right. The appeal was therefore dismissed. The court also endorsed the exercise of the judge’s discretion not to extend the one-year limitation period under the Human Rights Act 1998 in the circumstances of this case.

Background and parties: The claimant, A, born 3 July 1989, is severely autistic with profound learning and communication disabilities and frequent epileptic fits. From January 2002 to July 2003 he was largely out of school and received very limited educational provision. Essex County Council, the local education authority, maintained a statement of special educational needs naming a day special school which the school later could not cope with. After multidisciplinary assessment a residential placement was identified and provided in 2003. A sued the Council under the Human Rights Act 1998 alleging incompatibility with Article 2 of Protocol 1 (A2P1).

Procedural history: Proceedings began 5 May 2005. Field J struck the claim out under CPR Part 24 as having no real prospect of success and refused an extension of the one-year time limit under s 7(5) HRA: [2007] EWHC 1652 (QB). The Court of Appeal dismissed the appeal: [2008] EWCA Civ 364. The Supreme Court granted permission and heard the appeal.

Relief sought: Declaration of incompatibility and damages under the HRA (sections 6, 7 and 8).

Issues before the court:

• Whether A2P1 guarantees an absolute minimum standard of education and, if so, how that minimum is measured;
• Whether, where a child has a statement of special educational needs under the Education Act 1996, the Convention requires provision to the standard set out in the statement;
• Whether, on the facts, Essex denied A effective access to the educational facilities the State provides for pupils like him; and
• Whether the one‑year limitation period under s 7(5) HRA should be extended.

Court’s reasoning: The majority followed the Strasbourg line that A2P1 secures fair and non‑discriminatory access to the State’s established system of education and does not guarantee a right to education of a particular type, at a particular institution or to a particular standard irrespective of the system in place. The correct inquiry is pragmatic: was the pupil denied effective access to the educational facilities the State provides for pupils like him such that the very essence of the right was impaired? Domestic statutory failures do not automatically equate to Convention breaches; any positive obligation under A2P1 must be interpreted in light of the system actually available and the resources and processes required to assess and meet complex needs. Applying that test, the majority concluded that time taken for multi‑disciplinary assessment and for locating and funding a very high‑cost residential placement accounted for much of the period complained of and that there was no real prospect, on the pleaded facts, of proving denial of the right’s very essence. The Court also upheld refusal to extend the HRA limitation period on equitable grounds in the particular circumstances.

Wider context: The judgments recognise the particular vulnerability of severely disabled children and the acute consequences of interrupted provision, note systemic pressures in special needs provision and acknowledge that, in different facts, a Convention breach could be arguable where authorities take no effective steps or make wholly inadequate efforts to secure interim provision.

The appeal was dismissed. The majority held that Article 2 of Protocol 1 guarantees access to the educational system provided by the State but does not impose an absolute right to a particular form or immediate level of provision; a breach requires deprivation of the very essence of the right or denial of effective access to the State’s educational facilities for pupils like the claimant. On the facts pleaded the claim had no real prospect of establishing such a denial, and the judge’s refusal to extend the one‑year time limit under the Human Rights Act 1998 was also upheld.

First instance: claim struck out by Field J, [2007] EWHC 1652 (QB). Appeal dismissed by Court of Appeal, [2008] EWCA Civ 364. Appeal to the Supreme Court allowed permission and decided [2010] UKSC 33.