ZB & Anor., R (on the application of) v London Borough of Croydon

A public authority responsible for a child’s education may breach Article 2 of Protocol No. 1 where it knows that the child is receiving no effective education and its attempts to secure attendance are completely ineffectual. The assessment is highly pragmatic and fact-specific. Responsibility may remain with the authority despite obstacles caused by another public body or unsuitable housing. Judicial review is generally forward-looking and should not become rolling judicial review. Where specialist tribunal proceedings substantially overlap with the issues, the Administrative Court may decline discretionary relief. A claim under Article 8 requires proof of which public authority bore primary responsibility for the alleged breach.

The claim concerned two profoundly disabled children, ZB and DB, whose education and social care arrangements were disputed after they moved into Croydon’s area. Croydon’s Education, Health and Care Plans named Linden Lodge School, while their mother sought placements at the Children’s Trust School. The children had been unable to attend school for an extended period, principally because suitable transport, escorts and accommodation arrangements were not secured.

The mother appealed against the Plans to the First-tier Tribunal. She ultimately accepted that the Tribunal was the appropriate forum for disputes about the Plans and did not pursue the proposed school-placement and associated care orders. The remaining issues were alleged breaches of Article 2 of Protocol No. 1 and Article 8 of the Convention, damages, and whether the children should remain at their interim placements pending the Tribunal appeals.

The claim succeeded in part. Croydon had breached the children’s rights under Article 2 of Protocol No. 1 between 2 December 2020 and 19 April 2022. The Article 8 claim and the remaining claims were dismissed. Just satisfaction of £10,000 was awarded to each child.

1. Article 2 of Protocol No. 1. The applicable test is highly pragmatic and must be applied to the particular facts. The right does not guarantee education of a particular kind, quality or at a particular institution, but it requires effective access to the educational facilities provided by the state. A failure to provide education, or a completely ineffectual attempt to provide it, may amount to a denial of the right.
2. Croydon knew that the children were not attending Linden Lodge School and were receiving no adequate alternative education. It did not secure the transport and medically suitable escort arrangements required for attendance, disputed responsibility for an escort, and failed to provide a workable solution for DB. Its limited virtual sessions did not constitute adequate education. Croydon’s responsibility was not displaced by Lambeth’s unsuitable housing or by difficulties contributed to by the mother.
3. The period of breach ended on 19 April 2022, when Croydon offered referral to home tuition. Although temporary and unsatisfactory, that was at least a realistic educational proposal and an adequate discharge of the Article 2 of Protocol No. 1 duty.
4. Article 8. The conditions at the family’s accommodation arguably fell below the minimum standards required by Article 8. But where more than one public authority may have contributed to a breach, the court must identify the authority bearing primary responsibility. The evidence did not establish that Croydon, rather than Lambeth, bore that responsibility.
5. Relief and forum. The First-tier Tribunal was the specialist forum for disputes about the children’s Education, Health and Care Plans. The Administrative Court would have refused the abandoned quashing and mandatory relief in its discretion because of that overlap. Declarations concerning historic failures were also inappropriate because the issues overlapped with the Tribunal appeals, the alleged failures had been superseded or would soon be overtaken, and rolling judicial review should be avoided.
6. The court refused a mandatory order preserving the children’s placements pending the Tribunal appeals. Croydon had not indicated an intention to move them, and any future decision would have to be assessed in the circumstances existing when it was made. Such a decision would require powerful justification if it caused further disruption.