AA v Secretary of State for Education

This judicial review challenged paragraph 5(3)(b) of Schedule 17 to the Equality Act 2010, which prevents the First-tier Tribunal (Education) from awarding damages in claims of disability discrimination by the responsible body of a school. The claimants argued that the exclusion of damages amounted to unlawful discrimination under Article 14 ECHR taken with Article 1 of Protocol 1 (A1P1), Article 2 of Protocol 1 (A2P1) or Article 8. The court held that the complaint fell within the ambit of A1P1 but not A2P1 or Article 8, that the claimants could be characterised as having an "other status" (pupils) and that the contested legislative scheme was a considered primary‑law choice. On the facts and having regard to Parliamentary materials and proportionality principles, the court concluded that the exclusion of damages was rationally connected to legitimate aims (educational remedies, benefit to wider disabled pupil cohort, public value and preserving an informal tribunal) and was proportionate. The claim was dismissed.

Background and parties: Two disabled children, by their parents as litigation friends, brought judicial review proceedings challenging the statutory bar on awards of damages by the First‑tier Tribunal in school disability discrimination claims. They had pursued disability discrimination claims in the FTT against their respective schools and in each case the FTT found discrimination but could not award damages. The claimants sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 contending Article 14 in conjunction with A1P1, A2P1 or Article 8 was engaged.

Relief sought and procedural posture: The principal remedy sought was a declaration of incompatibility. The judicial review was issued on 17 December 2019. Permission was refused twice (Lane J, 24 February 2020; Farbey J, 25 March 2020) but Simler LJ granted permission on 23 February 2021 and remitted the claim for substantive hearing. The Article 8 ground was not permitted to proceed and Article 6 was abandoned.

Issues framed: The court identified four core issues: (i) whether the subject matter falls within the ambit of A1P1, A2P1 or Article 8; (ii) whether the claimants were treated less favourably than analogous groups; (iii) whether the difference in treatment was on the basis of a relevant "status"; and (iv) whether any difference of treatment was objectively and reasonably justified.

Court’s reasoning and findings:

• The lack of access to a damages remedy was within the ambit of A1P1 on a "modality" basis (the State having created a remedial scheme under domestic law that normally permits damages, save for the statutory carve‑out).
• A2P1 and Article 8 were not engaged: the link to A2P1 was tenuous and the Article 8 ground had been abandoned earlier and was not arguable in any event.
• The claimants established status (disability and the status of being school pupils) for Article 14 purposes.
• On difference of treatment the court held the proper comparator was pupils in other discrimination grounds (for example race/sex) and that, when the FTT’s package of non‑financial remedies and its informal, inquisitorial procedures were taken into account, the claimants had not shown overall less favourable treatment.
• Even assuming less favourable treatment, the court found the exclusion of damages was a considered parliamentary choice dating from the Special Educational Needs and Disability Act 2001 and carried forward in the Equality Act 2010. Parliamentary debates and ministerial explanations showed legitimate aims: prioritising educational remedies, improving outcomes for cohorts of disabled pupils, public value in resource deployment, and preserving an informal user‑friendly forum. The measure was rationally connected and proportionate when assessed under the applicable intensity of review.

Disposition: The claim was dismissed.

The claim is dismissed. The court found the complaint fell within the ambit of Article 1 of Protocol 1 but not A2P1 or Article 8; the claimants satisfied the "status" requirement; the claimants had not demonstrated overall less favourable treatment when the First‑tier Tribunal’s package of remedies and procedures was considered; and in any event the statutory exclusion of damages was a justified and proportionate legislative choice made with proper regard to legitimate aims, so no declaration of incompatibility was warranted.

Judicial review issued 17 December 2019. Permission to apply for judicial review was refused on the papers by Lane J on 24 February 2020 and refused at oral renewal by Farbey J on 25 March 2020. Simler LJ granted permission and remitted the claim to the Administrative Court on 23 February 2021. The substantive hearing was before Saini J in the Administrative Court resulting in dismissal on 23 June 2022.