Drexler, R (On the Application Of) v Leicestershire County Council

In an Article 14 challenge to a public authority’s allocation of scarce resources, the manifestly without reasonable foundation standard is not confined to welfare-benefit cases. It may apply to general measures of economic or social policy. Even if conventional proportionality applies, the court must give appropriate weight to an elected authority’s judgment on spending priorities, particularly where the discrimination ground is age rather than a suspect ground.

A policy differentiating between compulsory-school-age children and those aged 16 to 18 may be justified where it reflects a statutory distinction, pursues legitimate savings, allows exceptions for real need and provides an appeal process. Imperfections in the policy’s administration will not alone establish a breach of Article 14 where the overall balance remains proportionate.

The appellant, a severely disabled pupil aged between 16 and 18, challenged Leicestershire County Council’s revised special educational needs home-to-school transport policy. The policy generally replaced council-provided transport with Personal Transport Budgets for that age group, while retaining different arrangements for younger children and adult learners.

Swift J dismissed the judicial review claim. Limited permission to appeal was granted only on the age-discrimination ground under Article 14, read with Article 8 and Article 2 of the First Protocol. The appeal raised whether the policy’s differential treatment by age was objectively justified, including the applicable intensity of proportionality review and the relevance of the wider education legislation.

1. Appeal dismissed unanimously. Lord Justice Singh gave the judgment, with which Lord Justice Newey and Lord Justice Bean agreed. The revised policy did not unlawfully discriminate on grounds of age contrary to Article 14.

2. The judge had been entitled to apply the manifestly without reasonable foundation standard. That approach was not confined to welfare benefits. It reflects the wider principle that courts should accord substantial weight to public authorities deciding how finite public resources should be allocated. In any event, the result would have been the same under conventional proportionality, applied with appropriate respect for the authority’s judgment.

3. Age is not a suspect ground of discrimination. The Council was making difficult budgetary choices and had democratic legitimacy and local knowledge. It was also entitled to take account of Parliament’s distinction between compulsory-school-age children and persons aged 16 to 18 in the Education Act 1996. Its discretion remained subject to the Human Rights Act 1998, but the statutory distinction was a material consideration.

4. The policy pursued the legitimate aim of saving public money and struck a fair balance. It allowed exceptions where there was real need, and it provided an appeal system. The statutory duty and potential parental criminal liability connected with compulsory school attendance gave further support to the distinction from the non-enforced participation duty for those aged 16 to 18.

5. Swift J’s criticisms of the policy’s mileage calculations and the information about Personal Transport Budgets did not undermine that conclusion. They might warrant reconsideration by the Council, but they did not render the age differential unjustified under Article 14. It was unnecessary to decide whether the facts fell within the ambit of Article 8 or Article 2 of the First Protocol.

• Court of Appeal (Civil Division) — dismissed the appeal: [2020] EWCA Civ 502.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Swift J dismissed the appellant’s judicial review challenge on 19 July 2019.