A v Essex County Council

The claim to which this appeal relates was brought on behalf of a severely disabled child, anonymised as A, for damages for breach of his human rights. It was dismissed by way of summary judgment by Field J [2007] EWHC 1652 (QB) on the ground that it had no realistic prospect of success; but, since the claim had been brought out of time, for reasons which he went on to give he would in any event not have granted the necessary enlargement of time. His judgment dealt not only with A’s claim but with three others brought on similar grounds. Although he dismissed all of them, it is this one alone which, on cost grounds, it has been decided to bring before this court on the issues of principle which it raises.

Pursuant to permission to appeal granted on consideration of the papers by Moore-Bick LJ, Nicholas Bowen therefore had a twofold task on the claimant’s behalf: to demonstrate that the claim does have a realistic prospect of success, and to establish that the judge was wrong to hold that in that event time should not be enlarged. At the conclusion of argument on the first limb, however, we indicated that, for reasons which would be given, the appeal failed on the first issue, with the consequence that argument on the enlargement of time would not be needed.

A’s claim is for damages under the Human Rights Act 1998 for breach by his local education authority, the defendant, of the right to education vouchsafed by art. 2 of the First Protocol (“A2P1”) of the European Convention on Human Rights, and also of arts. 3, 8 and 14 of the Convention itself. His essential case is that, for want of even minimally suitable provision for his education, he was shut out of the state system for 18 or 19 months. The consequences are said to have amounted to inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the A2P1 right.

The articles in question provide as follows:

The fact that A is a gravely disabled child is as central to the defendants’ case as it is to A’s. One can do no better than adopt Field J’s account:

One thing needs to be noted at the outset. The council’s reassertion in its statements of A’s special educational needs in November 2001 and July 2002 that L S School was an appropriate placement for him was neither appealed against at the time to the Tribunal nor challenged in these proceedings. In fact the foundation of the present claim has been that A ought to have remained in L S School until July 2003 when his successful placement at K School began. Nor, however, has it been suggested that L S School was acting otherwise than responsibly when it decided that for the sake of the safety of others it could not continue to have A there. The asserted systemic failure lies in the proposition that the exclusion was unlawful (because it was accomplished by asking A’s parents to keep him at home and so was neither permanent nor for a fixed term of 45 days or less) and that nothing amounting to alternative education was provided or offered, with the result that the substance of the A2P1 right was lost.

On this limb of the case Field J concluded:

The application of A2P1 to exclusions occurring in the English education system was considered in Ali v Lord Grey School [2006] 2 AC 363. Since the House of Lords in that case examined in detail the jurisprudence of the European Court of Human Rights, in particular the seminal decision in the Belgian Linguistic (No 2) case (1968) 1 EHRR 252, the reasoning of the House is in large part exhaustive for present purposes. So I will begin there, and then look only as much further afield as is appropriate.

The claimant in Lord Grey had been excluded from school while the police investigated a case of arson possibly involving him. In the event he was cleared, but meanwhile he had lost about 10 months’ schooling. Lord Bingham’s conclusion in favour of the school, in which three other members of the Appellate Committee concurred, turned principally on the fact that it was through the family’s non-cooperation that the opportunity for surrogate schooling during the period of exclusion had been lost. Lord Hoffmann’s conclusion, in which Lord Bingham and two of the three remaining members of the Committee also concurred, was based on more fundamental issues of principle.

All the speeches recognised that A2P1 confers or recognises only a right of access to such system of education as each member state provides. Lord Bingham (§24) spoke of a right under A2P1 of “effective access to such educational facilities as the state provides for such pupils [as the claimant]”. Lord Hoffmann (§57) considered that a breach must involve denial of “the basic minimum of education available under the domestic system”.  There is a possible tension between these two formulations; but it is not a tension which affects the present case because Mr Bowen’s case is that A was subjected, either literally or substantively, to “complete exclusion from the system”.

For my part, like Field J, I consider that the facts asserted (and in large part uncontroverted) are not capable of amounting to a breach of this Convention right. The thrust of the case, as I have noted earlier in this judgment, is that it was L S School which excluded A and Essex County Council which thereafter failed to make alternative provision for him. It is not that he was wrongly allocated in the first place to a school that was not equipped to cope with him; that would in any case have been a matter for the SEN system. Nobody seeks to blame the child, but the fact was that L S School could not cope with the dangers he presented to others and in part to himself. The request to his parents to keep him at home was forced upon the school, and it then fell to the county council to make better provision for him. It took them longer than it should have done, but the passage of time is intelligibly accounted for and it is not suggested that there was any deliberate backsliding: indeed the provision the council finally, and everyone agrees rightly, made was at quite colossal public expense.

I do not consider that it is possible to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it. Mr Bowen predicates his argument to the contrary on the extra-legal (and therefore, he says, unlawful) exclusion of A from the school to which he had been allocated. This might have mattered before the decision of the House of Lords in the Lord Grey case, but the reasoning of the House in that case makes the proposition unarguable. It is sufficient to recall what Lord Hoffmann said at §61:

“It is in my view illegitimate to promote the public law duty of the school, not giving rise to a private right of action, to a duty under s.6 of the Human Rights Act 1998 remediable by a claim for damages, by saying that in domestic law the school bore the “primary duty to educate the child”. The correct approach is first to ask whether there was a denial of a Convention right. In the case of article 2 of the First Protocol that would have required a systemic failure of the educational system which resulted in the respondent not having access to a minimum level of education. As there was no such failure, that is the end of the matter.”

I mentioned earlier a possible tension between Lord Hoffmann’s concept of a systemic failure and Lord Bingham’s postulate (§24) of the denial to a pupil of “effective access to such educational facilities as the state provides for such pupils”. In argument, Mr Bowen drew our attention to the Strasbourg decisions in Eren v Turkey (7 February 2006, unreported) and Timishev v Russia (15 December 2005, unreported), both of which countenance the possibility of a breach of A2P1 in circumstances such as those postulated by Lord Bingham, where the system remains intact but the pupil is excluded from it. While the exclusion may, as in Timishev, be unlawful, it may equally, as in the  recent case of DH v Czech Republic [2007] ECHR 57325/00, be done within the law (in that case by relegating Roma children repeatedly to special schools) but still violate A2P1. Mr Warnock, for the respondent authority, was ready to accept in the light of this jurisprudence that a systemic failure may include cases where the system has abandoned the child; but he submitted, and I agree, that there was no way in which that could be said to have happened to A. As the history set out by the judge demonstrates, this was a child with needs so profound that it took the system a considerable time to adjust and cope. No doubt it could and arguably should have moved faster, once it had become clear that L S School should not have been, or at least should not have remained, the school stipulated in the SSEN. But that is a long way from the system either breaking down or abandoning the child.

A substantial part of Mr Bowen’s argument was directed not to this but to what he asserted was the failure of the Administrative Court to act decisively by the grant of interlocutory mandatory relief in SEN exclusion cases. It required, in his submission, a preparedness on the part of this court to deploy the Convention right to education as a substitute or a backstop. This remarkable argument, implying that law can be adjusted or devised to meet procedural exigencies, needs only to be stated to be rejected. If the Administrative Court is not granting relief where it should be, this court’s door is open. But it requires little speculation to see why judges of first instance may well be rightly reluctant to intervene by mandatory order in the specialised and complex system set up by and under Part IV of the Education Act 1996.

In my judgment A’s claim under art 2 of the First Protocol has been incapable of succeeding since the decision of the House of Lords in Ali v Lord Grey School, and Field J was right so to decide.

Nor do I accept that any other article of the Convention was arguably violated.

The only viable purchase, in the present context, of the non-discrimination provisions of art. 14 is upon A2P1. It is contended that it was because of his disability that A was denied access to the education system. Because a formal breach of the substantive article is not a requisite of art 14, this argument does not necessarily fall with the case under A2P1. It falls, in my judgment, because there is no evidence whatever of inappropriate discrimination. I put it this way because unlawful discrimination can take the form of treating different cases alike. To have treated A like any other child would have been entirely wrong. It was right and necessary to treat him differently from other children and in that sense to discriminate, albeit in his favour and not against him.

Mr Bowen’s argument was initially that Field J misunderstood his case, which was that A was to be treated as part of a group consisting of excluded SEN children and that the comparison to be made was with excluded non-SEN children. In other words the question was whether, but for his disability, A’s exclusion would have taken the form or had the consequences it did. But none of the facts asserted on A’s behalf suggests that non-SEN children who are excluded from school are better treated or secure better or swifter reallocations than excluded SEN children do.

Whether for this or another reason, Mr Bowen changed his argument before us to a comparison between the treatment of A, who had been excluded de facto and so had no statutory appeal rights, and the treatment of children who have been formally excluded and so can appeal to an independent tribunal. This argument depends not at all on A’s special needs. But in so doing it overlooks the fact that, because of his needs, A had been statemented for a school which, it turned out, could not handle him. Nothing is asserted which suggests that A would have been reallocated any sooner or more appropriately had he been formally excluded from L S School. The extreme nature of his needs deprives the comparison of content.

As to art 3, Field J concluded:

Field J had reminded himself that the ECtHR in Pretty v UK  (2002) 35 EHRR 1, 33, had accepted that the exacerbation of a naturally occurring physical or mental condition could be enough to violate art 3, but also that in R (Q) v Home Secretary [2003] 3 WLR 365 this court set the level of entry into the protection of art 3 below simple destitution. ‘Treatment’, moreover, ordinarily requires some deliberate act or omission (including the withholding of treatment) which will have the proscribed effect. For all these reasons I too consider that art 3 is not arguably engaged in this case.

The same is in my view true of art 8. As to this, Field J said

Unlike many, perhaps most, art 8 claims, this one does not depend on justification under art 8(2). It depends on finding a point of entry into art 8(1), and like the judge I cannot discern one. To manifest a denial of respect for A’s family and private life the defendant county council would have had at the very least to do something, or to omit to do something, which the duty of respect called upon it to do or to refrain from. For the reasons already canvassed in this judgment, there was no such act or omission invading the primary art 8 rights. The applicability of art. 8 has grown since the inception of the Convention, but the contention that the denial by the state of legal rights, including other Convention rights, engages art 8 by disrupting the individual’s or the family’s wellbeing is an argument too far.

It is of course the case, as this court said in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, §43, that art 8 may require the provision of welfare support where the welfare of children is at stake; and one must not underestimate the strain evidently thrown upon this family by the lack of stimulation or help for A during the 18-month hiatus in his education; but the Convention is not a panacea for every ill, and I am unable to accept that the want of meaningful educational provision at home during the material period, undesirable though it was, can have amounted to a violation of A’s right to respect for his private or family life. The contrasts drawn by this court in the material passage show clearly enough why it is so:

“Neither Mr Sales nor Mr Swirsky, who appeared for the defendant in Anufrijeva, challenged the decision of Sullivan J in Bernard, either in principle or on the facts. Our conclusion is that Sullivan J was correct to accept that Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in J v The London Borough of Enfield [2002] EWHC Admin 735, where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard and we consider that it was open to Sullivan J to find that Article 8 was infringed on the facts of that case.”

I am therefore not persuaded on any count that Field J erred in concluding that the claim had no real prospect of success. I would dismiss the appeal on this ground without going on to decide whether he was right or wrong in contingently declining to enlarge time.

I would, however, venture to say that serious consideration in a case such as this has to be given to the conditions under which those advising and representing the claimant work. Because of the huge difficulties now encountered by private practitioners in providing a publicly-funded service in this complex and specialised field of law, the Children’s Legal Centre, with only a handful of qualified practitioners on its staff, works almost alone. If the claim had otherwise been viable, it might have been necessary to take a hard look at this aspect of the case; but in the circumstances it does not arise and we have not heard argument on it.

I agree.

I also agree.