2010 11 Education

Wednesday 1 December 2010

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Case law

A v Essex CC [2010] UKSC 33: Damages claim based on Article 2 Protocol 1 of the ECHR and what the scope and content of this right is in domestic law. Appellant is a severely autistic young man, now aged 21, who suffers significant learning difficulties who was asked to be kept at home after special school named in his Statement of Special Educational Needs stated they were unable to meet his needs. He was not then given any full-time schooling or schooling to meet his statement of special educational needs for 18 months. He relied on A2P1 to seek damages from Essex CC arguing that between January 2002 and July 2003, his right to education was infringed. The central point was whether a local education authority has a minimum legal obligation to provide all children with an effective education, taking account of their special needs and regardless of the demands that this has on resources.

The Supreme Court judgment produced three different majorities on the questions posed to the Court. (i) A 3-2 majority (Lords Clarke, Phillips and Brown) held that it was not arguable that A2P1 gave A an absolute right to education that met his special needs during the 18 months. The time taken to find a school that met these needs was attributable to limitation of resources. Even if the delay had been attributable in part to administrative shortcomings, this would not have amounted to a breach of A2P1.

(ii) On the alternative argument, a different 3-2 majority (Lord Phillips, Lady Hale and Lord Kerr) held that A might have been able to establish a breach of A2P1 at trial in the form of a failure to provide educational facilities that were available, i.e damages for A2P1 is a justiciable matter in domestic court.

(iii) A 4-1majority (Lord Phillips, Brown, Kerr and Clarke) held that it was not “equitable” (HRA, s 7(5)(b)) to extend the one year limitation period.

However, Lady Hale stated at paragraph 96 that “we are asked to decide whether Article 2 of Protocol 1 guarantees a child an absolute minimum standard of education and, if so, how this is to be measured. My answer is that we have been referred to no authority in Strasbourg which has met this question head-on. We cannot therefore be clear that the answer is “yes”; but equally we cannot be clear that the answer is “no”.”

We shall wait and see whether this matter does go to Strasbourg.

In the matter of an application by JR17 for Judicial Review (Northern Ireland) [2010] UKSC 27: A Northern Ireland appeal relating to a school suspension and whether the procedure of excluding the pupil was in breach of Article 2 Protocol 1, ECHR. The appellant (JR17) was in Year 12 and was suspended following an allegation made confidentially to the head teacher by a female pupil relating to his engaging in intimidating behaviour both inside and outside school in such a way that it put the femal pupil at risk of suicide. The head teacher also became aware that JR17 had been accused of criminal offences of a sexual and violent nature outside school. The head teacher suspended JR17 in order to protect the well being of the girl who had made the complaint. The suspension was couched as a ‘precautionary’ act and not ‘an assumption of guilt’, which as a matter of law would be impermissible: see Ali v Lord Grey School [2006] 2 AC 363. As a consequence, JR17 was out of school for 3 months leading up to exams.

The Supreme Court (Sir John Dyson SCJ giving the leading judgment) held that (i) the suspension, although couched as precautionary, was for disciplinary reasons; (ii) there was therefore a power to suspend on disciplinary grounds. There was no grounds to call it a precautionary exclusion. (iii) the suspension was however unlawful as JR17 was not given an opportunity to put his version of events forward. He was told the unspecified allegations and then suspended. No reasons were given for the decision to suspend. (iv) however, the exclusion did not amount to a breach of A2P1 or a ‘denial of effective access to such educational facilities as the state provides’ (applying Lord Bingham’s guidance in Ali v Lord Grey. The boy was given work to do at home and given home tuition.

On the facts, the circumstances of JR17 and A v Essex are in that sense quite divergent.

R (on the application of KS) v Croydon London Borough of Croydon, extempore judgment 20/10/2010 (Lindblom J): A local authority had failed to comply with its duty under the Education Act 1996 s.19 to provide suitable full-time secondary education for the claimant asylum-seeking children who were of compulsory school age and "looked after" by the local authority. Assessment of what constitutes suitable education under s19, EA 96 must involve consideration of the individual child's educational needs, age, aptitude and ability. It cannot be assumed that an unaccompanied asylum seeking minor's needs are only confined to language. In the instant case, the local authority had failed to apply its corporate mind to the individual circumstances, and in the absence of records showing that all relevant considerations had been taken into account it had failed to exercise its duty under s.19. In approaching its task, the court was mindful of the heightened duty owed by the local authority to 'looked after' children. Consequently, the local authority would be obliged to reconsider its decision.

Haringey Independent Appeals Panel v R (on the application of M) [2010] EWCA Civ 1103 (Rix LJ, Wilson LJ, Sir David Keene): An independent appeal panel's enquiry into the potential prejudice suffered by an oversubscribed school as a result of the inclusion of a child, undertaken at the first stage of the process set out in the School Admission Appeals Code, was essentially objective. The attributes of the child concerned were only relevant to the very limited extent that they might make unusual demands on a school.

Camden London Borough Council v FG (SEN) [2010] UKUT 249 (AAC): Guidance given by the Administrative Appeals Chambers of the Upper Tribunal on the content of orders and standard case management directions in a case where the appellant local authority appealed against a decision of the first-tier tribunal amending a child's statement of special educational needs to name the school preferred by F, the respondent mother, and against an order barring it from taking part in the proceedings. The child in question had a complex developmental co-ordination disorder and had a statement of special educational needs. On that statement the local authority had named a particular school, though F's preference was for another school. F appealed to the tribunal and directions were given requiring the local authority to provide certain additional information. In view of the local authority’s failure to comply with directions, the tribunal made an order debarring it from taking any further part in the proceedings under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 r.8(4)(a), and went on to allow F’s appeal.

NA v Barnet London Borough Council [2010] UKUT 180 (AAC): The Upper Tribunal construed the Education Act 1996 Sch.27 para.3(3)(b), which allowed a local education authority to reject the preferred school of a parent of a child with special educational needs where the child's attendance there "would be incompatible with the provision of efficient education for the children with whom he would be educated".

R (Rex C) v Upper Tribunal and others [2010] EWCA Civ 859: Court of Appeal confirms High Court’s decision that the Upper Tribunal is subject to the jurisdiction of the High Court by way of judicial rview if it acts outside its jurisdiction or denies procedural justice notwithstanding that it is designated as a superior court of record: see s3(5) Tribunals, Courts and Enforcement Act 2007. Normally, the proper way for a challenge of the UT decision would be by way of an appeal to the Court of Appeal under s13 of the 2007 Act.

Cases to watch:

In Novmeber 2010, the Court of Appeal is hearing an appeal from the decision of Cranston J in O v East Riding of Yorkshire CC [2010] E.L.R. 318, an important case dealing with the interface of special needs provision and social services provision. The judge held that the local authority had correctly ceased to regard a child as being “looked after” under the Children Act 1989 when he was placed in full-time residential education under his SSEN even though he had been at all material times accommodated by the local authority under s20, Children Act 1989 for the 2 years preceding the change in status. The judge’s reasoning was based on the fact that the residential school could provide for all of the child’s welfare needs and thus he no longer required accommodation and so the local authority was not providing his accommodation in the exercise of social services functions.

The appeal raises the interesting question of when a local authority can bring its duty under s20, Children Act 1989 to an end. Lady Hale in R(G) v Southwark LBC [2009] UKHL 26, [2009] 1 WLR 1299 suggested at paragraph 32 of her speech that this could only be done on the facts of that case (i) if the child is no longer in need; (ii) if the parents are no longer prevented from providing suitable care or accommodation; (iii) if the child, being of competent age (i.e. 16-17 years old), does not want to be so accommodated any more. This suggests that only in circumstances where the criteria under s20 was no longer met can the duty be brought to an end. Moving to a residential school from respite care would arguably be a change in the type of accommodation and not circumstances amounting to an end of s20.

Another education Supreme Court to watch is the appeal of G v Governors of X School (CA decision at [2010] ELR 235), which concerns the procedural rights of teachers being disciplined by a governing body where the outcome may affect their ability to carry on teaching

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