2013 01 Education

Friday 1 February 2013

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In the matter of an Application by A (a minor) by His Mother and Next Friend for Judicial Review [2012] NIQB 106 (Treacy J): This case raises the issue of whether a young person who is difficult to engage in education can be placed on a reduced timetable and left the choice of whether or not to take up the educational provision offered to him without any threat or act of enforcement being taken by the respondent authorities against him. In my view it is not permissible for the education authority to take this approach where a child’s statement says he should have access to the entire Northern Ireland curriculum without modification. This child had previously shown himself capable of attending for tuition in the full curriculum. When he showed signs of voluntary disengagement, the Court took the view that the education authorities ought to have at least tried to use compulsory enforcement mechanisms in his case before resorting to reducing the curriculum being offered to him. Their failure to attempt enforcement in a case where the young person had some control over his own behaviours was a legal flaw in the approach used in the case. The Court declared that the decision to reduce A’s timetable was inconsistent with the requirements of his statement of special educational needs and wrong in law.

Note: This is a really interesting judgment particularly when considered against the backdrop of what the Supreme Court stated in A v Essex CC [2010] UKSC 33 where the appellant, a severely disabled young adult, missed out on more than 18 months of schooling and was provided nothing in the interim whilst the local authority tried to find him appropriate schooling. The Supreme Court held that the failure for a period of 18 months to cater for the special educational needs of a child did not constitute a denial of his right to education because all that was guaranteed was that he could access a theoretical system of education, not that he actually receives education. This latter judgment has been challenged in Strasbourg with an admissibility decision awaited.

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