R (Drexler) v Leicestershire County Council

The claimant, a severely disabled 17-year-old school pupil, sought judicial review of Leicestershire County Council’s decision to replace most council-provided post-16 home-to-school transport with Personal Transport Budgets (PTBs) save in narrowly defined exceptional cases. The principal legal issues were whether the new policy engaged Convention rights (Article 8 and Article 2 of Protocol No.1), and whether it gave rise to unlawful discrimination under Article 14 read with those substantive rights (age discrimination and disability discrimination), and whether the Council complied with the public-sector equality duty in section 149 of the Equality Act 2010.

The court held that the Council’s transport policy falls within the ambit of Article 2 of Protocol No.1 and Article 8. The age-discrimination complaint (treating 16–18 year olds less favourably than compulsory-school-age pupils and some adults) was considered under the four-step justification test and, applying the appropriate margin of judgment for resource allocation (the "manifestly without reasonable foundation" standard), was justified because the differential treatment reflected statutory obligations under the Education Act 1996 (notably the travel obligations for compulsory-school-age pupils and the statutory provision for adult learners) and a fair balance was struck. The disability discrimination claim (a Thlimmenos-type complaint that the policy did not sufficiently recognise the particular needs of disabled post-16 pupils) failed because there was no single comparable neutral practice applied across groups that produced the kind of unequal result capable of a classical indirect-discrimination analysis.

The court also concluded that the Council had discharged its section 149(1) Equality Act public-sector equality duty: the Equality and Human Rights Impact Assessment, although imperfect, showed that the Council had had due regard to the statutory equality considerations.

Background and parties. The claimant, represented by a litigation friend, is a severely disabled 17-year-old who attends a special school c.13 miles from home and currently travels on a council-provided wheelchair-accessible minibus. The defendant is Leicestershire County Council. The claimant sought judicial review of Cabinet decisions adopting revised Mainstream and Special Educational Needs (SEN) home-to-school transport policies which move post-16 school pupils, as a general rule, from council-provided transport to PTBs, reserving council-provided transport only for narrowly defined exceptional cases.

Nature of the claim and remedies sought. The claimant sought declaratory relief and review of the policy on three principal grounds: (1) unlawful age discrimination under Article 14 read with Article 2 of Protocol No.1 and/or Article 8; (2) unlawful indirect discrimination on grounds of disability under Article 14 read with Article 2 of Protocol No.1 and/or Article 8, relying on the Thlimmenos principle as applied in domestic authorities; and (3) failure to comply with the public-sector equality duty in section 149(1) of the Equality Act 2010.

Key issues framed by the court. The judge addressed (i) whether the policy engaged the substantive rights relied upon (Article 2 of Protocol No.1 and Article 8); (ii) whether differences of treatment amounted to unlawful discrimination under Article 14 and, if so, whether they were justified; and (iii) whether the Council had had due regard to the section 149(1) equality objectives when adopting the policy.

Court reasoning and findings.

• Prematurity: The court rejected the defence that claims were premature. It treated the challenge as directed to the policy adopted by Cabinet, which was a concluded decision.
• Ambit: The court found that home-to-school transport arrangements, once provided by a local authority, fall within the ambit of Article 2 of Protocol No.1 and that the claimant’s circumstances brought the provision or withdrawal of transport within the ambit of Article 8.
• Age discrimination: The policy treated compulsory-school-age pupils more favourably than 16–18 year olds, and (to a small extent) treated some post-18 learners differently. The court applied the Bank Mellat framework for justification and, recognising the limited institutional role of the court in social and economic policy, applied the manifestly without reasonable foundation standard. It concluded the differential treatment was justified by statutory duties in the Education Act 1996 and related legislative context (including section 508F), the connection between the objective and the means was rational, and a fair balance was struck.
• Disability discrimination: The claimant’s Thlimmenos-type argument failed because the SEN and Mainstream policies were not sufficiently similar in their practical operation to permit an indirect discrimination comparison; the scheme for PTBs and the limited exceptional provision for council transport meant there was not a single PCP applied across comparator groups capable of the classic justification inquiry. The court observed, however, that aspects of the PTB scheme (indicative mileage rates, lack of clarity on adjustments) were unsatisfactory.
• Public-sector equality duty: The court concluded that the Council’s Equality and Human Rights Impact Assessment, though imperfect and partially conflating different analyses, showed adequate consideration of the section 149(1) factors and thus compliance with the duty.

Outcome. The claim was dismissed. The judgment records the court’s view that the Council should nevertheless reconsider aspects of the PTB procedure and information before implementation.

The claim is dismissed. The court held that the Council’s revised home-to-school transport policies fall within the ambit of Article 2 of Protocol No.1 and Article 8 but that the age-differential and the practical move to PTBs were objectively and reasonably justified in light of the Education Act 1996 statutory framework and the Council’s resource-allocation judgment; the disability-based Thlimmenos-type challenge failed because there was no sufficiently similar neutral practice to support an indirect-discrimination claim; and the Council complied with its section 149(1) Equality Act duty.