AA and CC (R on the application of) v SECRETARY OF STATE FOR EDUCATION & Anor

A statutory exclusion of compensation from the remedies available in disability-discrimination claims brought by school pupils was compatible with Article 14 ECHR taken with A1P1. The availability of damages fell within A1P1’s ambit through the modality principle, although no pre-existing enforceable possession had been removed.

The comparison must be made between the overall remedial packages, not by isolating the absence of damages. The informal, inquisitorial and specialist FTT process, together with its wide educational remedies, meant that less favourable treatment was not established. In any event, the exclusion pursued legitimate educational and procedural aims and was proportionate, particularly given Parliament’s considered social-policy choice and the appropriate low intensity of review.

Two disabled children brought disability-discrimination claims against their schools in the First-tier Tribunal. Their claims succeeded in part, but the Tribunal could not award compensation under paragraph 5(3)(b) of Schedule 17 to the Equality Act 2010.

They sought judicial review and a declaration of incompatibility under section 4 of the Human Rights Act 1998. They compared their position with school pupils bringing discrimination claims based on other protected characteristics, and with disabled students in further or higher education, for whom damages could be available. The issues were whether the complaint fell within the ambit of A1P1, whether there was less favourable treatment and relevant status, and whether any difference was objectively and reasonably justified.

1. Ambit of A1P1. A claim for damages which never existed in domestic law was not a possession or legitimate expectation under A1P1. However, the State had created a statutory discrimination-remedies scheme falling within the ambit of A1P1. Under the modality principle, Article 14 was engaged if a person would have enjoyed that right but for discrimination. The A1P1 ground therefore passed the ambit threshold.
2. Other Convention rights. The connection between the availability of compensation and the right to education under A2P1 was, at most, tenuous. The Article 8 ground had been abandoned and could not properly be revived without good reason; it was also not arguable on its merits. The Article 6 ground had been abandoned and was not arguable in light of Steer.
3. Comparators and less favourable treatment. Disabled pupils in schools were appropriately compared with pupils bringing other school discrimination claims, but disabled students in further or higher education were not proper comparators. Applying the package principle, the Claimants had not shown less favourable treatment. The FTT offered a free, flexible, informal, inquisitorial and specialist forum, with wider remedies directed to putting a child’s education back on track.
4. Status. Disability was an “other status” for Article 14 purposes. Being a pupil at a school was also an objectively identifiable status and was not defined merely by the disputed difference in treatment.
5. Justification. Assuming less favourable treatment, the Defendants discharged the burden of justification. The four legitimate aims were effective educational remedies, benefits to disabled pupils generally, maximum public value from resources, and preservation of an informal and non-adversarial tribunal. Excluding damages was rationally connected to those aims and proportionate. The comparison had to take account of the statutory scheme as a whole, and the court should accord substantial weight to Parliament’s considered choice in an area of social policy.
6. The claim was dismissed. The current SEND review was not relevant to the legality of the existing scheme.

• Administrative Court: Permission was refused on the papers by Lane J on 24 February 2020 and on oral renewal by Farbey J on 25 March 2020.
• Court of Appeal: Simler LJ granted permission to appeal on 23 February 2021 and remitted the claim to the Administrative Court for trial.
• High Court (Administrative Court): The claim was dismissed.