Damages can be sought under the Human Rights Act for failure to educate

Thursday 15 July 2010

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A (Appellant) v Essex County Council (Respondent)

The UK Supreme Court has ruled that a breach of Article 2 Protocol 1 of the European Convention on Human Rights can be justiciable and sound in damages where a child is denied access to education available within the domestic system, however inadequate, to meet the child's educational needs.

However the Court ruled that A2P1 does not impose an absolute minimum obligation to provide a child with an effective education, and the education made available for the purposes of an alleged violation of A2P1 (as opposed to the position in domestic law) can have regard to the financial resources available to the local authority.

The Appeal
This appeal concerned the justiciability and the content of the right to education under Article 2 Protocol 1 ('A2P1') of the European Convention on Human Rights ('ECHR'). The Appellant, A, represented by Nicholas Bowen Q.C. and Shu Shin Luh of Garden Court Chambers, is a profoundly disabled and severely autistic young man who suffers from epilepsy and has serious learning difficulties.

The claim is the first case in which the Supreme Court has had to consider whether a failure to provide a severely disabled child with a minimally acceptable standard of education to meet his special educational needs contravenes the child's human rights as enshrined in the ECHR. A2P1 of the Convention obliges governments to ensure that no one shall be denied the right to an education.

The Supreme Court also had to decide whether A had a justiciable claim in damages for the 18 months that he remained at home without any effective education after his special school decided it could no longer cope with his behaviour.

The matter was heard by Lord Phillips (President of the Supreme Court), Lady Hale, Lord Brown, Lord Kerr and Lord Clarke.

Background to the Appeal
A brought a claim for damages and to vindicate the violation of his rights under A2P1 in relation to an 18-month period between 17 January 2002 and 28 July 2003 when he was removed from his special school and left at home without any adequate education until finally being enrolled in an independent residential special school. The consequences for A (who was then 12) and his family during the 18 months were profound. He and his parents suffered terribly and he began to self harm. He became so frustrated due to a lack of stimulation that he was fitted with a helmet and arm splints to protect him from gouging his face and head-butting the wall. It was the view of the professionals treating him that this deterioration was due to under-stimulation. By the end of his enforced period at home his parents had to provide A with 24 hour care to keep him safe from self-harm, holding his hands in shifts all the time he was awake. A was eventually found a placement in a specialist residential school at a cost of £233,589 per year.

Judgment
On the first issue as to whether there is an absolute minimum guarantee under A2P1, the Court held, by a narrow majority of 3-2 (Lords Clarke, Phillips and Brown), that the right to education under A2P1 does not impose an absolute right to education that met the Appellant's special educational needs during the 18 months he was excluded from the domestic education system.

In their judgments, Lord Kerr and Lady Hale dissented, Lord Kerr finding that human rights law does demand minimum acceptable standards of education. Lady Hale stated that the Strasbourg Court had yet to directly face this issue and they may well agree with the Appellant's submissions and that the case should therefore go to trial. She stated that denial of access to education can be "catastrophic for a pupil with special educational needs".

On the second issue as to whether a breach of A2P1 can be justiciable and sound in damages, a different majority (Lord Phillips, Lady Hale and Lord Kerr) held that A might have been able to establish at a full trial that his right to education under A2P1 was breached because the local authority failed to provide A with education which was available within their resources which would have and could have mitigated the consequences of failing to meet A's special educational needs during the 18-month-period when he was out of full-time schooling.

Whilst the appeal was ultimately dismissed on limitation grounds, the Court's ruling on the second issue marks a significant departure from pre-existing case law which had made it impossible for an individual child to assert a breach of his right to education in the absence of a complete systems failure.

Following this judgment, it is now clear that where there is a failure to educate, a child can seek damages under the Human Rights Act where a local authority could have but failed to take steps to mitigate the consequences of this failure. To this extent this judgment demonstrates that as a matter of principle, A2P1 does add further protection to the rights of all children to be educated in accordance with the existing system of education and each case will have to be examined on its own facts.

For the full judgment click here.

For the Supreme Court's summary, click here.

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