R (Drexler) v Leicestershire County Council

The Court of Appeal dismissed the appellant's challenge to Leicestershire County Council's revised Special Educational Needs home-to-school transport policy. The appeal raised an Article 14 (equality) complaint read with Article 8 and Article 2 of Protocol 1 (right to education) that the policy unlawfully discriminated on grounds of age by treating those aged 16–18 less favourably than younger pupils. The court held that the policy engaged rights within the ambit of A2P1 and Article 8 but that the differential treatment was objectively justified.

The court applied the high‑level standard of review appropriate to allocation of finite public resources (the "manifestly without reasonable foundation" standard as applied in recent authority, or, if conventional proportionality applied, a review affording a substantial margin of judgement). It concluded that Parliament had deliberately drawn distinctions in the Education Act 1996 between compulsory school age (generally 5–16) and the sixth‑form age group, and that the council's policy tracked those statutory distinctions and pursued lawful public‑interest objectives (notably saving public money) while retaining case‑by‑case exceptions and an appeals mechanism. On that basis the age discrimination complained of struck a fair balance and was not unlawful under Article 14.

Background and parties: The claimant, a severely disabled young person born in 2002, attended a special school some 13 miles from home and at the time received council‑provided minibus transport. Leicestershire County Council decided to amend its SEN home‑to‑school transport policy so that, save in exceptional cases, 16–18 year‑olds with SEN would be offered a Personal Transport Budget (PTB) rather than council‑provided minibus/taxi transport. The claimant applied for continuation of existing transport on the basis of exceptionality; the council refused and the claimant sought judicial review.

Procedural history: The claim was heard in the Administrative Court before Swift J, who dismissed it by order dated 19 July 2019. Limited permission to appeal was given by Males LJ on 14 November 2019. The Court of Appeal (Bean LJ, Newey LJ, Singh LJ) heard the appeal and handed down judgment on 7 April 2020.

Nature of the claim and relief sought: The claimant sought relief by judicial review arguing that the revised SEN transport policy: (i) unlawfully discriminated on grounds of age contrary to Article 14 read with Article 8 and/or Article 2 of Protocol 1; (ii) unlawfully discriminated on grounds of disability; and (iii) breached the public sector equality duty. Permission to appeal was limited to the age discrimination (Article 14) ground.

Issues framed: The central issues on appeal were (1) whether the "manifestly without reasonable foundation" standard of review (derived from the Supreme Court's welfare‑benefits line of authority) applied to challenges of this kind or whether conventional proportionality applied; (2) whether the policy's differential treatment of 16–18 year‑olds was justified in light of the wider statutory framework (including the Education Act 1996 and Education and Skills Act 2008); and (3) whether identified flaws in the policy (for example in the council's ready reckoner and information provided to parents) undermined any justification.

Court's reasoning: The court accepted that the provision of home‑to‑school transport falls within the ambit of A2P1 and also engages family life under Article 8. It held that where measures concern allocation of scarce public resources and social or economic strategy, a wide margin of judgement is appropriate; in that context the "manifestly without reasonable foundation" standard (as applied in recent Supreme Court and Court of Appeal decisions) is not confined to welfare benefits cases and was properly applied. Even if the conventional proportionality test were applied, the court said an appreciable margin of judgement remained.

The court examined the relevant statutory framework and emphasised Parliament's deliberate distinctions in the Education Act 1996 between compulsory school age and sixth‑form age (and the differing duties to provide transport or policy statements). That legislative backdrop, together with the council's retention of discretion to make exceptions and an appeals process, meant the policy pursued a legitimate aim and was proportionate. The court acknowledged criticisms of the policy's drafting and practical tools but concluded those did not render the policy objectively unjustified under Article 14.

Result: The appeal was dismissed; the Court upheld Swift J's order and found no unlawful age discrimination.

Appeal dismissed. The Court of Appeal upheld the High Court's dismissal of the judicial review challenge, holding that the differential treatment of 16–18 year‑olds in the revised SEN transport policy was objectively justified. The court applied the "manifestly without reasonable foundation" standard (or, if conventional proportionality applied, a review with an appropriate margin of judgement) and concluded the policy fell within the legitimate margin available to a local authority implementing statutory distinctions in education law, pursued a legitimate public‑interest aim (including public‑spending considerations), and provided exceptions and appeal safeguards so as not to breach Article 14.

This is an appeal from the Administrative Court (Queen's Bench Division). Swift J dismissed the claimant's judicial review challenge by order dated 19 July 2019. Limited permission to appeal was granted by Males LJ on 14 November 2019. The Court of Appeal heard the appeal (C1/2019/1914) on 20–21 February 2020 and delivered judgment on 7 April 2020, neutral citation [2020] EWCA Civ 502.