Supreme Court rejects damages claim in special needs right to education case

The Supreme Court has rejected a claim for compensation brought on behalf of a severely disabled boy who was out of school for 18 months while the local authority tried to find a suitable placement.

The case of A v Essex County Council [2010] UKSC 33 raised the question as to whether Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights imposed a minimum obligation to provide a child with an education that is effective having regard to his special needs, regardless of the demands that this makes on resources.

Counsel for A argued that A2P1 did give that right and that this mirrored the public law obligation imposed by statute in England and Wales; and for 18 months he was denied this right, because his special needs were not met. Alternatively, it was submitted that A2P1 entitled A to such facilities as were available in the 18-month period, because his special needs were not met.

The background of the case was that A, who is now 21, is severely autistic, suffers from epilepsy and has grave learning difficulties. He attended a special school as a boy, but in 2001, when he was 12, teachers at the school expressed concern about his behaviour and the school’s ability to deal with him. They said he was likely to harm himself and other children.

In January 2002, A’s parents were asked not to bring him into school for health and safety reasons. It was intended that at the time he would receive an urgent residential medical assessment, but this was delayed. The school in the meantime sent him work and activities to do with his parents at home, and provided some weekly speech and language therapy sessions. Neither the school nor the council was able to provide a home tutor qualified or able to meet A’s needs.

The assessment was then held in September 2002, and it recommended that A be placed in a 24-hour residential specialist school, at a cost of £233,000 a year. The council wrote to a number of schools from October to December, but was unable to secure a placement.

A’s condition deteriorated until he was found a placement in July 2003. His health and behaviour improved and he received an appropriate education. He left school in 2008 and now lives in residential therapeutic accommodation.

In 2007 a claim for damages was brought on A’s behalf on the basis that his 18 months out of school breached his right to an education under A2P1. The claim was struck out by both the High Court and the Court of Appeal on the grounds that it had no realistic prospect of succeeding. An appeal was then made to the Supreme Court.

By a majority of three to two, the Supreme Court ruled that it was not arguable that A2P1 gave A an absolute right to education that met his special needs over the 18-month period.

Lord Clarke said the correct approach was a pragmatic one. He added: “As I see it, viewed in the round, A was not arguably denied the very essence of his right to education. On the contrary, he was ultimately provided with high quality education at very considerable cost. I do not accept the submission made on behalf of A that he was abandoned by the educational authorities after his parents were persuaded to withdraw him from school.

“On the contrary, Essex were doing their utmost to have A properly appraised and thereafter did their utmost to arrange residential care, for which they paid. While the interim measures are at least arguably open to some criticism, that is not the question and their shortcomings do not arguably amount to a denial of A’s right to education.”

A different majority, also by three to two, rejected the alternative argument advanced on A’s behalf. Finally, a four to one majority also ruled that it would not be right for the one-year time limit on bringing a claim to be extended.

Andrew Cooper, Director of the Public Sector Group at Weightmans, which acted for Essex, said the judgment was an important one for local authorities.

He said: “Cases involving children with learning disabilities are complex and must be approached sensitively with the needs of the child at the heart of any decision making process.

“The Human Rights Act is a very important piece of legislation but, as this judgment makes clear, the European Convention rights that the Act brings into effect are not a panacea for all ills. Our domestic legislation provides a sophisticated public law system for the education of children with special educational needs. This system already affords a consistent means of protecting fundamental rights.

“If A’s argument had been accepted, it would have created the potential for a flood of nominal damages claims against local authorities all of which would inevitably have been pursued entirely at significant public expense.”