A & Ors v Essex County Council & Ors

The four defendants in these actions apply for judgement under CPR 24, whilst the claimants seek a determination that it is equitable under section 7(5)(b) of the Human Rights Act 1998 (“HRA”) to extend the one year limitation period in respect of such of their claims as were not brought within that period.

Each claimant is the subject of a Special Educational Needs Statement (“SSEN”) and seeks a declaration and damages under section 7(1)(a) HRA on the ground that the local authority responsible for the provision of education in his or her area has acted incompatibly with his or her rights under Article 2, Protocol 1 to ECHR (“A2P1”) and Articles 8 and 14 ECHR by wrongfully excluding him or her and/ or by not providing a “meaningful” and “effective” education for varying periods of time. In Claim No. HQ05X1273, the claimant, A, also alleges that the defendant acted incompatibly with his rights under Article 3 ECHR.

By section 312 a child has “special educational needs” if he “has a learning difficulty which calls for special educational provision to be made for him”. A child has a “learning difficulty” if, amongst other things, he “has a significantly greater difficulty in learning than the majority of children his age” or “he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority”.

By section 321 of the Act a local authority is to exercise its powers with a view to securing that of children for whom they are responsible, they identify those who have special educational needs and for whom it is necessary for the authority to determine special educational provision. The local authority is “responsible” for, amongst others, children within the authority’s area who either attend a school maintained by the authority and children who attend an independent school with fees paid for by the authority.

Pursuant to section 323, where the Local Education Authority (“LEA”) considers a child may fall within section 321, they are required to make an assessment of his needs, after having taken into account any parental representations. Under section 329, a parent may also initiate the process, by requesting an assessment under section 323. If such a request is made, the authority must comply with it if no such assessment has been made within the previous six months and it is necessary for the authority to make an assessment under section 323. Under section 329A, the head teacher of a school may also request an assessment.

If as a result of an assessment under section 323 the local authority decides it is necessary for the local authority to make special educational provision for the child, then by section 324 the authority must make and maintain an SSEN. Section 324 provides for the contents of such a statement. In particular, it must: give details of the educational needs and the provision required to meet them; specify the type of school or institution which the authority considers appropriate to meet those needs; and name any school or institution which is considered to be appropriate. The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (the Regulations) prescribe in more detail the form and content of the statement.

The Regulations also make detailed provision for the assessment process. They specify (at regulations 7 to 11) that the authority must seek: (a) advice from the child’s parent; (b) educational advice (usually from the head teacher of the child’s school); (c) medical advice from the health authority; (d) advice from an educational psychologist employed by the authority; (e) advice from social services; and (f) any other advice which the authority considers appropriate for the purposes of arriving at a satisfactory assessment. The authority must also take into account any evidence submitted by or at the request of the child’s parent. Once the assessment is complete, the authority must either provide the parents with a copy of a proposed statement of special educational needs (or amended statement if the child already has one) within 2 weeks, or inform them that they have decided not to make a statement or amend an existing statement within the same time period and inform the parents of their right to appeal (regulation 17).

If a proposed statement has been issued, there then follows an 8 week period during which the parent has the right to make representations as to the content of the Statement (Schedule 27). At the end of the 8 week period, the authority must issue a complete statement unless certain defined exceptions apply.

Once a statement is made, the local authority has a statutory obligation to arrange that the special educational provision specified is made for the child – section 324(5). The Statement must also be reviewed annually (regulation 18 of the Regulations).

Parents are given rights of appeal to the Special Educational Needs and Disability Tribunal (“SENDIST”) against decisions made by the authority see eg sections 329(2), 325(3) and 326.

Appeals from the SENDIST lie to the High Court on a point of law (Tribunals and Enquiries Act 1992 section 11).

By section 19, a local authority is under a duty to make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. This duty arises only where it is not reasonably possible for a child to take advantage of any existing suitable schooling (R(G) v Westminster City Council [2004] EWCA Civ 45).

A is severely autistic, suffers from epilepsy, has severe learning difficulties and is doubly incontinent. At all material times his behaviour was extremely challenging. He self-harmed and wore arm splints and a helmet during the day to protect his arms and skull. Despite medication he had 10-15 short epileptic fits a day.

He attended L S School, a Community Special Day School for children with severe learning difficulties, from the beginning of his statutory schooling in 1995 until 17^th January 2002. In May 2001 teachers at the school recorded their concerns about his behaviour and the school’s ability to deal with him.

A’s amended SSEN of 6^th November 2001 named L S School as an appropriate placement.

On 18^th January 2002 A stopped attending the LS School following notification to his parents that he should be removed from the school. Thereafter he was kept at home pending a medical assessment because his propensity for violence constituted a danger to other pupils and staff. The school sent work to A’s home for him to do in the form of two boxes of educational activities – touch books and bubbles. Speech and language therapy was provided to him on Wednesday and Thursday mornings from March 2002 and an occupational therapy assessment of A’s home was arranged and carried out. In May and June 2002 A attended activity sessions at L S School whilst his parents attended Makaton classes and from about the end of June 2002 until 24^th July 2002 he attended the L S School for individual teaching sessions lasting 45 minutes each.

Following a review of A’s SSEN the defendant informed A’s parents and his solicitors on 31^st July 2002 that it did not propose to make any amendments to the statement.

A was medically assessed between the 9^th and 13^th September 2002 at the St Piers National Centre for Young People with Epilepsy. This was the earliest that the assessment could take place. A was diagnosed “generalised seizure disorder; severe learning disability; and challenging behaviour (aggressive and self injurious behaviour)”. The report recommended a residential programme offering the benefit of a 24 hour curriculum with consistent behavioural strategies at a specialist school. He needed 1:1 (at times 2:1) supervision and support at all times. As a result of having been at home unsupported since February 2002, he was under-stimulated and his behaviour and self harming had intensified.

The defendant was informed orally of the outcome of the assessment on 13^th September and by 16^th October 2002 had put funding in place for a residential placement.

Between 16^th October 2002 and 17^th December 2002 the defendant wrote to 26 schools seeking a placement for A. In mid-December arrangements were made for him to attend sessions at the Sensory Room on Tuesday and Thursday mornings and he continued to receive two 45 minute sessions at the L S School. In late January 2003 he began attending L House for respite care 3 days a week, 2 hours a day.

On 9^th February 2003 K School offered a place for A at a cost to the defendant of £223,589 per annum, which the defendant was willing to pay but A’s parents asked if they could continue investigating other schools. Eventually the place at K School was accepted and A started there on 28^th July 2003. The place did not become available until this date because building works at the school overran.

Since taking up the place A has progressed well. His overall health and behaviour have improved, he is receiving appropriate education, and his self-harming is very much reduced.

In a report on A dated 23^rd November 2006, a Consultant Community Paediatrician states that there is no doubt that A’s development achievements regressed during the period he was out of school and that his behaviour deteriorated due to the lack of demands made upon him. However, the effects of his time out of education in terms of his learning and general development appeared to have been temporary, but in terms of his behaviour there may have been a more permanent effect.

The 19 months during which A was out of school had an adverse impact not only on A but also on his parents who have a total of six children, three of whom, in addition to A, have varying degrees of special educational needs.

A claims that in breach of his A2P1 rights he was denied an effective and meaningful education whilst at L S School between May 2001 and 18^th January 2002, and thereafter until 27^th July 2003. He also claims that his exclusion from L S School was in breach of his A2P1 rights.

J has complex special needs. She suffers from pathological demand avoidance syndrome. She has significant emotional, behavioural and attention difficulties and has compulsive aggressive disorder.

J began to attend at primary school at four years and remained there until 5^th March 2001 when she was transferred to another primary school to give her a ‘fresh start.’ However, her behaviour and skills continued to give concern. On 23^rd May 2001 the LEA of the defendant granted her 10 hours of additional support from the 4^th June 2001. Following exclusions for short periods in September and October 2001, she was offered a place at the Pupil Referral Unit (“PRU”) for 3 mornings a week.

On 25^th January 2002 an SSEN was issued for J naming W Primary School and requiring that J receive 20 hours support from a support assistant and an individualised and educational behavioural programme, with W Primary School in addition having to fund an extra 5 hours of support. After two further exclusions for fixed periods on 15^th March and 1^st May 2002, J returned to the school on 10 June 2002 when she attacked a member of staff. For this she was excluded permanently on 12^th June 2002.

J was then out of school until 11^th September 2002 when she was placed at the AA Base at O P Primary School on a trial basis, the placement being supported with 25 hours a week school assistance and 5 hours per week lunchtime supervision. At the annual review on 18^th November 2002 it was agreed that J would attend the AA Base part-time until the end of term and that the R School, a school for children with emotional and behavioural difficulties, would be considered as a replacement. However, J’s mother declined a placement at the R school on the ground that it was unsuitable; she wanted J to be placed in a mainstream school. After a number of exclusions, the head teacher said that the AA Base would not take J back, and it was agreed that J would not return to the O P Primary School in January 2003. She was removed from the school’s roll on 8^th January 2003. It is alleged that the placement at R School was unsuitable to meet J’s needs.

In the summer of 2003 J received three 1½ hour “taster” sessions over a period of 3 weeks beginning 16^th June 2003 at UUS School, a mainstream primary school which was her mother’s choice of school, but in September 2003 this school refused her a place. It is alleged that the school was not suitable for her.

On 28^th November 2003 it was agreed that once a teaching assistant had been found J would be placed at T House, a special school for children with moderate learning difficulties. In the meantime, J attended at S J’s PRU for 2 hours a day for a number of days a week.

J was assessed on the 12^th February 2004. It was confirmed that she was a “classic” Pathological Demand Avoidance case.

J began her placement at T House on 19^th January 2004 on a part time basis and began attending full time after Easter 2004. This placement has been successful. There has been a significant rise in her self-esteem, considerable educational progress and the making of friendships with other pupils.

J claims that in breach of her A2P1 rights she was provided with no effective or meaningful alternative education: (a) during the periods she was excluded starting on 11 September 2001 down to the start of her attendance at 11^th September 2002 at AA Base; (b) in respect of her placement at AA Base; (c) in the period 19^th December 2002 to 8^th January 2003; (d) in the period 8^th January 2003 to 19^th January 2004; and (e) her attendance at the PRU in December 2003.

In late 1998/ early 1999, S’s Headmistress at C Primary School stated, inter alia, that S needed 1:1 support for most mechanical activities, withdrawal from ‘whole class-work’, intensive long term counselling and therapy and support from social services. She also advised that a mainstream school did not have the resources to meet S’s needs and deal with the ‘deep seated’ reasons for her behaviour.

S’s SSEN was issued on 3^rd March 1999. A review was initiated by the defendant in June 1999 for the purpose of which the same headmistress reiterated that S needed the support of the specialist resource and 1:1 or 1:2 support 100% of the time and that the school was at best containing rather than educating her as there were no resources for the therapy she needed or to fund the extensive work required to improve her behaviour.

In November 1999 S, with parental consent, was transferred to a fully resourced special needs unit with small classes and a high adult/pupil ratio. On 10^th April 2000 the defendant produced an amended SSEN, part 3 of which stated that opportunities must be provided for individual and small group work with a high adult/pupil ratio. An early review of the SSEN was convened in July 2000. Staff at the unit advised that S remained a behaviourally disturbed pupil who could and would frequently lapse into her old anti-social behaviours. At the meeting for the annual review of the SSEN in August 2000 S’s mother was assured that there was no reason why S should be unable to cope in an ordinary secondary school.

On 4^th May 2001 the defendant produced an amended SSEN which stated that S was to transfer to BH School from September 2001 with funding for 12 hours per week of additional classroom assistant support to supplement the school’s existing resources. S was transferred to BH School in September 2001. However, this placement rapidly broke down. It is alleged that this was due to S’s unsuitability to mainstream education and/or because of the refusal or failure of the defendant properly to support the placement. It is further alleged that the 12 hours’ extra support covered only half of S’s timetable activities; she needed extra classroom assistance support; she was extremely weak academically, had poor social skills and there were incidents where she intimidated other children.

On 27^th November 2001 S was temporarily excluded for 5 days and was excluded again on 10^th January 2002 for intimidating behaviour for a further fixed term of 40 days with an offer to provide work during this period.

S was due back at BH School on 14^th March 2002 but was not returned to school by her mother on the ground that the placement was inappropriate. In March 2002 the defendant sought home tuition for S from three tutoring agencies but none was willing or able to provide tutoring at home for S having regard to her level of disturbance. Unsuccessful attempts were also made to recruit a home tutor from within BH School and from C Education Centre. On 31^st May 2002 S was permanently excluded by the head teacher.

Between September 2002 and 27^th February 2003 S was placed by the defendant at C PRU to receive 25 hours’ tuition per week. This placement was pending a place becoming available at B Special School. It is alleged on behalf of S that this unit was unable to cope with her challenging behaviour and that on average she attended 2 days a week and received no more than 14 hours’ tuition per week from October 2002.

On 27^th February 2003 S began attending B Special School. It is alleged that this school was unable to provide S with the provision specified in her SSEN. Between 7^th April and 2^nd May 2003 she was excluded for a fixed term of 10 days for inciting dangerous and disorderly behaviour, which was followed by a further exclusion for 2 days between 22^nd and 23^rd May 2003 for damaging school property and abusing staff. In early June 2003 the defendant produced a further amended SSEN. This was followed by a yet further proposed SSEN on 26^th September 2003 which continued to name B Special School. S was excluded again for fixed terms between 9^th and 22^nd October 2003 and 23^rd October to 13^th November 2003, and again from 14^th November to 27^th November 2003. She was permanently excluded on 14^th November 2003 having attended B Special School for a total of 35 school days during which time she had been involved in 44 incidents of dangerous and inappropriate behaviour.

S then remained out of school between 15^th February 2004 and 7^th June 2004 until she was placed at C High School, an independent residential school in Liverpool on 8^th June 2004. In the meantime, the defendant’s LEA had made funding available for an out-of-county residential placement and after the Christmas vacation approaches were made to five schools, one of which (C School) offered S a place but this was rejected by her mother.

The defendant found a home tutor to commence on 23^rd February 2004 but S did not live at home from that date and so was unavailable to take up the home tuition. On 2^nd March 2004 S was offered a placement at FP School, an independent weekly residential special school. She started there on 3^rd March 2004 but ran away after one day.

By letter dated 4^th March 2004, the solicitor instructed on S’s behalf wrote to the defendant stating that she had advised S’s mother to consider having S made a Ward of Court and that future education provision would have to await the outcome of this action.

On 4^th June 2004 the defendant produced an amended SSEN which named C High School, a specialist independent school for children with additional needs. S started at C High School on 8^th June 2004. In January 2005 she was sent home because she had become pregnant. She was sent home to discuss the situation with her mother and because the school was concerned about the health and safety implications of her having a child whilst residing at the school. Later, the school carried out a risk assessment and informed the defendant that they remained concerned about having a pregnant girl in the school. S was out of school until 18^th April 2005. The school readmitted her on 19^th April 2005 with S living at a mother and baby unit near the school.

In mid-March 2006 S left C High School with no formal qualifications.

It is alleged that in breach of her A2P1 rights S was denied an effective and meaningful education in the periods: (a) September 2001-10^th January 2002; (b) 10^th January 2002-September 2002; (c) September 2002-26^th February 2003; (d) 27^th February 2003-14^th November 2003; (e) 15^th November 2003-8^th June 2004; and (f) January 2005-18^th April 2005.

B has profound and complex needs. Following a statutory assessment in 1996 he was made the subject of an SSEN on 17^th March 1997 when he was 5½ years old. Between March 1997 and May 2001 he was registered as a pupil at T Primary School, a mainstream school. He was withdrawn from that school by his mother because he was unhappy there but his place remained available until his SSEN was amended in October 2001.

In September 2001 B began attending at C Junior School which was named as the appropriate school in an amended SSEN dated 11^th October 2001. That amended SSEN stated that B should receive teaching in a small specialist class within a mainstream school with staff experienced in working with children with moderate learning difficulties, with opportunities to join lessons in mainstream classes where appropriate and to mix socially with children with a range of different abilities. The amended SSEN also noted that B probably had semantic pragmatic language disorder and that he had difficulties with language-based tasks which would benefit from further investigation. He was assessed for his speech and language skills on 19^th October 2001. It was reported that he needed a specialist placement where the staff had understanding of social communication disorders and the class sizes were small.

In a further amended SSEN issued on 14^th December 2001 it was stated that B had Tourette Syndrome with associated ADHD and had global learning difficulties and semantic pragmatic language disorder. Part 3 of the statement specified, together with other support, a speech and language therapy programme to include 1:1 therapy for 30 minutes a week and liaison by the therapist with the teaching staff to develop programmes to use in class and access to social skills. The statement further specified that the LEA should provide funding for 25 hours full time classroom assistance, which he received. There was a further amended statement issued on 12^th February 2002 to the same effect. The review in April 2003 had the benefit of reports from a clinical psychologist and a consultant paediatrician both of whom suggested that B should attend a residential school with the necessary facilities and experience to address his complex difficulties. The amended SSEN of 6^th May 2003 did not reflect these suggestions but, in anticipation of a move to secondary school, named O High School area support centre, a mainstream day school, as the appropriate educational establishment. B’s mother challenged the naming of O High School in the amended SSEN.

In a letter dated 23^rd May 2003 to the defendant’s special needs officer, the Headteacher of O High School stated that a placement at the school would not be in B’s best interests.

On 2^nd September 2003, B’s GP recommended that he not attend school until an appropriate therapeutic placement was offered due to the stress he was suffering at the thought of having to attend O High School. On 4^th September 2003 B’s solicitor asked the LEA to provide 24 hours’ home tuition immediately. On 15^th September 2003 B’s solicitor wrote to the senior education officer asking her to arrange for the school medical services to assess B urgently and expressing concern that only 5 hours a week tuition could be offered.

On or about 9^th October 2003 a doctor (not B’s GP) examined B and found him medically fit to attend O High School.

On 20^th October 2003 a SENDIST hearing took place. The SENDIST chair advised the LEA that it should be looking at other options for B apart from O High School. In the meantime B’s GP became increasingly concerned about B’s threats of self-harming and suicide.

A further hearing took place before SENDIST on 5^th December 2003 when the appeal was adjourned with a direction that the parties seek alternative placements. On 16^th December 2003, the SENDIST decision was issued rejecting both O High School and B’s mother’s choice (BM School) and directing the parties to identify a new suitable school.

B was then offered tuition in the YMCA Unit in which children with severe behavioural difficulties were placed but he did not take this offer up on the ground that the teaching staff had no experience of teaching children with complex needs like B’s. The LEA provided 10½ hours of home tuition from 19^th January 2004, increasing to 14½ hours from 4^th February and 20½ hours from 26^th February 2004.

Throughout January 2004 the defendant’s principal educational psychologist and B’s mother sought to identify an appropriate school for B. The defendant had already approached one school in December 2003 and approached two others in January, including PM School where B was interviewed in mid-February.

A provisional amended SSEN was issued on the 7^th of April 2004, with which B’s mother agreed, naming PM School in part 4 of the statement. B was admitted to this school on the 27^th April 2004 where he has since settled well.

B claims that he was denied an effective and meaningful education in the period of 2^nd September 2003-26^th April 2004.

The issue for decision is whether the claims have a real prospect of success.

A2P1 provides

Right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The leading Strasbourg authority on the content of A2P1 is the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 in which French-speaking Belgian parents claimed that certain provisions of the Belgian linguistic legislation infringed their A2P1 rights. Dismissing the claim, the ECtHR said:

2.

The Court will address itself first to Article 2 of the Protocol because the Contracting States made express provision with reference to the right to education in this Article.

3.

By the terms of the first sentence of this Article, 'no person shall be denied the right to education'.

In spite of its negative formulation, this provision uses the term 'right' and speaks of a 'right to education'. Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of 'rights and freedoms'. There is therefore no doubt that Article 2 does enshrine a right.

It remains however to determine the content of this right and the scope of the obligation which is thereby placed upon States.

The negative formulation indicates, as is confirmed by the preparatory work, that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol. As a 'right' does exist, it is secured, by virtue of Article 1 of the Convention, to everyone within the jurisdiction of a Contracting State.

To determine the scope of the 'right to education', within the meaning of the first sentence of Article 2 of the Protocol, the Court must bear in mind the aim of this provision. It notes in this context that all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore, any question of requiring each State to establish such a system, but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time.

The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation. In particular, the first sentence of Article 2 does not specify the language in which education must be conducted in order that the right to education should be respected. It does not contain precise provisions similar to those which appear in Articles 5(2) and 6(3)(a) and (e). However, the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be.

4.

The first sentence of Article 2 of the Protocol consequently guarantees, in the first place, a right of access to educational institutions existing at a given time, but such access constitutes only a part of the right to education. For the 'right to education' to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed. The Court will deal with this matter in greater detail when it examines the last of the six specific questions listed in the submissions of those who appeared before it.

5.

The right to education guaranteed by the first sentence of Article 2 of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.

The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights was to provide effective protection of fundamental human rights, and this, without doubt, not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the community and the respect due to fundamental human rights while attaching particular importance to the latter.

7.

……The first sentence of Article 2 contains in itself no linguistic requirement. It guarantees the right of access to educational establishments existing at a given time and the right to obtain, in conformity with the rules in force in each State and in one form or another, the official recognition of studies which have been completed, this last right not being relevant to the point which is being dealt with here…..

In SP v UK (Application No 28915/95); [1997] EHRLR 287, the complainant suffered from dyslexia and claimed that his A2P1 rights had been denied on the grounds that: (i) the teaching staff of the schools he had attended had failed to address his special educational needs; (ii) his LEA had initially refused to make an SSEN in his case; and (iii) the English High Court had refused to overturn the LEA’s decision. In declaring the complainant’s application inadmissible the First Chamber of the European Human Rights Commission cited the Belgian Linguistics Case and said that A2P1

is a right which: “by its very nature calls for regulation by the State regulation which may vary in time and place according to the needs and resources of the community and of individuals”... Such regulation is permitted as long as the substance of the right to education is preserved. …The Commission recognises that there must be a wide measure of discretion left to the authorities as to how to make the best use possible of the resources available to them in the interest of disabled children generally.

Simpson v UK (Application 14688/89); (1989) 64 DR 188 was another dyslexia case. Here an LEA had issued an SSEN under which it paid for the dyslexic complainant to attend a private school but a second LEA for the area to which the complainant moved issued a new statement proposing that he be educated in a mainstream school. Adopting the reasoning employed in SP, the Commission declined to accept the complaint.

 In Sahin v Turkey [2006] ELR 73 the ECtHR said:

[154] In spite of its importance, this right is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access ‘by its very nature calls for regulation by the State’ (Belgian Linguistics Case, p 32, para 5; see also, mutatis mutandis, Golder v United Kingdom (1979-80) 1 EHRR 524, pp 18-19, para 38; and Fayed v United Kingdom (1994) 18 EHRR 393, pp 49-50, para 65). Admittedly, the regulation of educational institutions may vary in time and in place, inter alia, according to the needs and resources of the community and the distinctive features of different levels of education …..

[156] The right to education does not, in principle, exclude recourse to disciplinary measures, including suspension or expulsion from an educational institution in order to ensure compliance with its internal rules. The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils (see, among other authorities, Campbell and Cosans, p14, para 33; see also, with respect to the expulsion of a cadet from a military academy, Yanasik, and the expulsion of a student for fraud, Sulak v Turkey (19960 84 DR 98).

The scope and effect of A2P1 was recently considered by the House of Lords A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363. There, the claimant had been excluded by the defendant school on the ground that he had been charged with two fellow pupils with arson in one of the school’s classrooms. During the first period of exclusion, 9^th March 2001 to 6^th June 2001, he was sent work and allowed to sit his SATs and the school referred him to the LEA for the provision of education otherwise than at school. After the SATs, the school asked the claimant’s parents to make contact to collect further work for him to do, but they failed to do so, and when the school was informed that the charge had been dropped it invited the claimant’s parents to attend a meeting to discuss the way forward, making it clear that it was envisaged that the three pupils would re-decorate the fire-damaged room. Prior to this, the claimant’s parents had been told by the LEA that its access panel had recommended that the claimant be provided part time tuition (Footnote: ¹) at a PRU. Following the failure of the claimant and his parents to attend the proposed meeting the head teacher wrote to the parents stating that she was removing their son from the school roll and would be confirming to the access panel that other provision should now be made for his education. Later, the family tried to seek the reinstatement of the claimant at the school but there was now no place for him and on 21^st January 2002 he began to attend another school.

The claimant claimed damages against the defendants contending that they had breached his rights under A2P1. It was conceded that the claimant’s exclusion from the school had been unlawful under domestic law. The Court of Appeal overturned Stanley Burnton J’s rejection of the claim, holding that in respect of the period 7^th June 2001 to 20^th January 2002 the defendants had acted in denial of his A2P1 rights.

The House of Lords, by a majority of 4 to 1, held that there had been no breach of the claimant’s A2P1 rights. Lord Bingham, having referred to the Belgian Linguistics Case, said:

12.

The court's judgment in the Belgian Linguistics (No. 2) case has been cited and relied on in a number of later decisions such as Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, Sahin v Turkey (Application No 44774/98, Grand Chamber, 10 November 2005, unreported) and Timishev v Russia (Application Nos 55762/00 and 55974/00, 13 December 2005, unreported). In later decisions the reasoning in that case has been followed but elaborated. It has been held that article 2 is dominated by its first sentence (Kjeldsen, above, para 52; Campbell and Cosans, above, para 40) but the article must be read as a whole (Kjeldsen, above, para 52), and given the indispensable and fundamental role of education in a democratic society a restrictive interpretation of the first sentence would not be consistent with the aim or purpose of that provision (Sahin, above, para 137; Timishev, above, para 64). But the right to education is not absolute (Sahin, above, para 154): it is subject to regulation by the state, but that regulation must not impair the essence of the right or deprive it of effectiveness (Campbell and Cosans, above, para 41; Sahin, above, para 154). It is not contrary to article 2 for pupils to be suspended or expelled, provided that national regulations do not prevent them enrolling in another establishment to pursue their studies (Yanasik v Turkey (1993) 74 DR 14), but even this qualification is not absolute (Sulak v Turkey (1996) 84 - A DR 98). The imposition of disciplinary penalties is an integral part of the process whereby a school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils (Sahin, above, para 156).

13.

In Coster v United Kingdom (2001) 33 EHRR 479, para 136, Her Majesty's Government submitted that article 2 did not confer a right to be educated at a particular school. The court did not expressly accept or reject this submission. Such an interpretation was, however, adopted by the Court of Appeal in S, T and P v London Borough of Brent [2002] EWCA Civ 693, [2002] ELR 556, para 9.

24.

The Strasbourg jurisprudence, summarised above in paras 11-13, makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey, Application No 60856/00 (unreported), 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002

Lord Bingham held that the defendants had not denied the claimant effective access to such educational facilities as the state provides between 7^th June 2001 to 20^th January 2002 because: (i) the school had invited the parents to collect work, which they did not; (ii) it had referred the claimant to the LEA’s access panel but he refused the PRU’s offer of tuition; and (iii) it had arranged a meeting to discuss the claimant’s readmission which the claimant’s family chose not to attend.

Lord Hoffmann said:

55.

…. The principle, as stated by the European Court in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 281, is that art 2 of the First Protocol does not confer a right to an education which the domestic system does not provide:

"all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore any question of requiring each State to establish such a system but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time."

56.

This does not however guarantee access to any particular educational institution the domestic system does provide: see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a right to remain in any particular institution. Everyone is no doubt entitled to be educated to a minimum standard (R (Holub) v Secretary of State for the Home Department [2001] 1 WLR 1359, 1367) but the right under article 2 extends no further.

57.

Except in cases in which the applicant has been wholly excluded from some sector of the domestic educational system, the European Court's jurisprudence on article 2 of the First Protocol has never shown any interest in the procedures by which the applicant was denied entry to or expelled from a particular educational establishment. Such procedures may be relevant to rights under other articles, such as article 6 or 14, but article 2 of the First Protocol is concerned only with results: was the applicant denied the basic minimum of education available under the domestic system? For this purpose it is necessary to look at the domestic system as a whole. Thus in Yasanik v Turkey (1993) 74 DR 14, where the applicant had been expelled from a military academy, the Commission said that there was no denial of the right to education because the Turkish education system also included civilian establishments in which he could enrol.

58.

I think that by parity of reasoning, the availability of teaching at the Pupil Referral Unit meant that the respondent had not been denied the right to education. As the necessary minimum of education was available, the Strasbourg court would not in my opinion concern itself with whether the fact that the respondent was obliged to attend the Pupil Referral Unit rather than the Lord Grey School was in accordance with domestic law or not….

61.

In the present case, where the respondent was not excluded from school education, he would in my opinion have had no claim at Strasbourg. And if no claim can be made in Strasbourg, it follows that there cannot have been an infringement of a Convention right giving rise to a claim under section 6 of the Human Rights Act 1998: see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] 3 WLR 837. 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 section 6 of the 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. It is only if a denial of a Convention right is established that one examines domestic law in order to discover which public authority, if any, is liable under article 6…

Lords Bingham and Hoffmann agreed with each other’s reasons for dismissing the appeal. Lord Nicholls and Lord Scott (Footnote: ²) agreed that the appeal should be allowed for the reasons given by Lord Bingham and Lord Hoffmann. Baroness Hale held that the defendants had breached the claimant’s A2P1 rights in the period 7^th June 2001 to 21^st January 2002 but allowed the appeal on the basis that the claimant was not entitled to damages because damages were not necessary to afford him just satisfaction.

Mr Warnock for the defendants submitted that the A2P1 right to education guarantees no more than fair access to the education system in the state in question. Whilst this may include a right to an “effective education”, this means no more than, in the words of Lord Hoffmann “a right to be educated to a minimum standard”, a threshold that is easily reached. The A2P1 right is not absolute but is subject to regulation. There is no Convention right to attend a particular school or type of school (such as a special school); nor is there a right to an education of a particular kind or quality (such as a particular type or level of special educational needs support). Further, the Convention does not guarantee compliance with domestic law, whether in relation to exclusions or the provision of education in accordance with SSENs. There exists in the UK a sophisticated education system that includes provision for children with special educational needs and a system of appeals to allow challenges against decisions or inaction on the part of local authorities. That system of appeals is susceptible to judicial review. The right guaranteed by A2P1 is a right to fair and non-discriminatory access to this education system. Unless there is a systemic failure of the system, or the system is operated in bad faith, an allegation that the education offered to a child was not suitable given his or her special educational needs will never lead to a finding of a breach of A2P1.

Mr Bowen for the claimants maintained that the domestic system of appeals to SENDIST was not delivering justice on account of: (i) the system’s byzantine complexity; (ii) the time it takes for appeals to be determined; and (iii) the over-readiness of judges in the Administrative Court to refuse to grant permission for judicial review on the ground that the SENDIST processes must be allowed to operate. What was needed he submitted was a rights-based approach and A2P1 conferred the necessary right because under that Article there was a right to an “effective” education, which meant, in the case of children with special needs, a right to an education that met those needs, particularly as set out in the child’s SSEN. He cited R (Holub & Another) v Secretary of State for the Home Department [2001] 1 WLR 1359 where the Court of Appeal said of A2P1:

25.

...The general right to education comprises four separate rights (none of which is absolute):

(i)

right of access to such educational establishments as exist;

(ii)

a right to effective (but not the most effective possible) education;

(iii)

a right to official recognition of academic qualifications ......

As regards the right to an effective education, for the right to education to be meaningful the quality of the education must reach a minimum standard.

But we do not think that the right is more extensive than this. If Mr Luba's submission that there is a right to an "appropriate" education means something more than an effective education in the sense described above we do not accept it. There is nothing in the authorities or the literature to which we have been referred which supports such a submission. The Convention does not confer a right to education in any particular country and so does not invite comparison between educational systems.

He also placed reliance on the following passages in the Belgian Linguistics Case already quoted:

The first sentence of Article 2 of the Protocol consequently guarantees, in the first place, a right of access to educational institutions existing at a given time, but such access constitutes only a part of the right to education. For the “right to education” to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which e has completed.” (Para 4) (Emphasis supplied).

The right to education guaranteed by the first sentence of Article 2of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention. (Para 5) (Emphasis supplied).

Mr Bowen further relied on the last sentence of that part of Lord Bingham’s speech in Lord Grey dealing with the domestic legislative background where he said: “It is plainly intended that every child of compulsory school age should receive appropriate education in one way or another, and that responsibility rests in the last resort on the LEA.”[Emphasis added]. Mr Bowen also cited R v London Borough of Hillingdon Ex parte Governing Body of Queensmead School [1997] ELR 331 where Andrew Collins J said that once needs have been specified in an SSEN, an LEA had a non-delegable duty to meet the needs, although the provision made may be the minimum necessary to meet them.

Mr Bowen additionally contended that a period of short exclusion from school would not inevitably mean that there was no failure to provide an effective education. If the breach was serious and the damage foreseeable, an action for damages for breach of A2P1 ought to lie.

Mr Bowen sought to distinguish the Lord Grey decision in the House of Lords on the basis that that case was concerned only about access to the education system and was not concerned with whether the right to an effective minimum education meant for a child with special educational needs a right to an education which meets those needs. He also boldly relied on the speech of Baroness Hale, contending that this was not a dissentient opinion because Baroness Hale agreed that the appeal should be allowed.

Mr Bowen further contended that, if the claimants’ A2P1 rights were breached, there was a real prospect of the claimants establishing that damages were necessary to afford just satisfaction because they had suffered a clear moral wrong and a loss that was measurable in money. Accordingly, their claims to damages, as well as to a declaration, had a real prospect of success.

In my opinion, Mr Bowen’s submissions as to the content of the A2P1 right are flatly contradicted by the decisions in SP, Simpson and Sahin. His attempt to distinguish the first two cases on the ground that they were concerned with parental choice was wholly unconvincing: those cases were squarely concerned with whether A2P1 gave a right to an education tailored to specified educational needs. Mr Bowen’s submissions were also irreconcilable with what Lord Bingham and Lord Hoffmann said on the content of A2P1 in Lord Grey.

In my judgement, it is clear from Lord Grey that a person of compulsory school age who has special educational needs has no right under A2P1 to be provided with an education of any particular type or in any particular school. Instead, the right is a non-absolute right not to be denied access to the education system operating in the UK, including the SENDIST processes for the resolution of disputes over SSENs. Thus, in cases where a person complains that his special educational needs are not being met at a time when he is in a school placement provided by the state, or such a placement is available for him, his complaint will not found a successful claim under HRA for breach of A2P1. Further, exclusion from school will only be a breach of A2P1 if on the facts the exclusion was for such a long period and there was such a lack of alternative education at another school or in the form of work to be done at home that it can fairly be said that that person has not received the bare minimum of an education.

I give my conclusions on the individual A2P1 claims below.

This provides:

Prohibition of torture: No one shall be subjected to torture or inhuman or degrading treatment or punishment.

It is claimed on behalf of A that as a direct result of: (a) his allegedly unlawful exclusion from L S School; (b) the failure thereafter to provide him with a suitable education; and (c) the alleged failure lawfully to assess A and thereafter provide him and his family with social welfare services, A was subjected to treatment that was prohibited by Article 3.

In R (Q) v Home Secretary [2003] 3 WLR 365 the Court of Appeal held that the degree of degradation that must be demonstrated to engage Article 3 falls significantly below the definition of destitution for the purposes of the Asylum Support Regulations 2000 and section 95 of the Immigration and Asylum Act 1999. The Court adopted the following guidance given by the Strasbourg Court in Pretty v UK 35 EHRR 1, 33:

52.

As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.

In Anufrijeva v Southwark London Borough Council [2004] QB 1124 (referred to in more detail below) the Court of Appeal held that it was only in very limited circumstances that it might be found that a state had infringed Article 3 as a result of failing to provide welfare support. The court said: “There is a stage at which the dictates of humanity require the state to intervene to prevent any person within its territory suffering dire consequences as a result of deprivation of sustenance”.

At its highest, A’s case is that life for him and his family whilst he was out of school was very stressful, he was under-stimulated and his parents had the very tiring and exasperating and emotionally draining job of constantly having to protect him from harming himself. In my judgement it is plain that these consequences of the alleged failings of the defendant, hard as they were on A and his family, did not come close to reaching the level of degradation or hardship necessary to engage Article 3. Accordingly, I find that A’s claim for breach of Article 3 has no real prospect of success.

So far as is relevant, this Article provides:

Right to respect for family life. 1. Everyone has the right to respect for his private and family life, his home and correspondence.

Each claimant pleads that as a direct result of the alleged unlawful exclusions from school and the alleged failures to provide him or her with an effective education the relevant defendant caused a serious and unjustifiable interference with his or her rights to a private and family life.

In Anufrijeva the Court of Appeal heard three appeals from decisions dismissing claims for damages under HRA for breach of Article 8 arising out of alleged maladministration. In the first case the claimant family claimed that the defendant’s failure to provide them with accommodation that met Mrs Anufrijeva’s needs under section 21 of the National Assistance Act 1948 amounted to an interference with the family’s rights under Article 8. In the second case it was alleged that maladministration in the handling of the claimant’s asylum application had interfered with his right to private life under Article 8. And in the third case the claimant (who had been granted asylum) claimed that his Article 8 rights had been breached as a result of the delay in granting permission to his family to join him in this country.

The Court of Appeal held that: (i) whilst Article 8 is capable of imposing on a state a positive obligation to provide support, it was hard to conceive of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with support where his predicament is not sufficiently severe to engage Article 3 (para 43); (ii) such positive obligations that Article 8 might impose were not absolute and before inaction could amount to a breach of the Article, there had to be an element of culpability – at the very least there had to be knowledge that the claimant’s private and family life were at risk; (para 43); breach of positive obligations imposed under domestic law may suffice to provide the necessary element of culpability provided that the impact on family or private life is sufficiently serious and was foreseeable (para 43); culpable delay in the processes necessary to give effect to an Article 8 right will not amount to a breach of the Article unless substantial prejudice has been caused to the claimant; (para 46); and regard has to be had to resources when considering obligations under Article 8: the demands on resources would be significantly increased if states were to be faced with claims for breaches of Article 8 simply on the grounds of administrative delays.

I assess below each claimant’s claims for breach of Article 8 in the light of the foregoing.

This provides

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The House of Lords in R (Carson) v Work and Pensions Secretary [2006] 1 AC 173 expressed reservations about the approach to Article 14 cases advocated by the Court of Appeal in Wandsworth LBC v Michalak [2003] 1 WLR 617. Lord Nicholls said:

For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometime the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.

Lord Hoffmann said that there was a single question: is there enough of a relevant difference between X and Y to justify different treatment? And Lord Rodger said that often the critical question will be whether the person complaining of discrimination is really in an analogous situation to that of the person who is treated more favourably.

The contention advanced on behalf of all of the claimants is that the relevant defendant discriminated against him or her on the basis of “other status” in that the claimant was a child with special educational needs who had been unlawfully excluded from school and as such was treated differently from children without such needs or from children who were lawfully excluded from school.

In my opinion, all of the Article 14 claims are bound to fail because it is manifest that the claimants are not in an analogous situation to that of the comparators. On the contrary, each claimant’s case is predicated on the basis that he or she had special educational needs which required a different education from that provided in the mainstream. There is also no evidence that the position of any of the claimants was affected by whether or not he or she was unlawfully (as distinct from lawfully) excluded.

A v Essex County Council

In the light of my conclusion that A2P1 does not confer a right on a person with special educational needs to an education in any particular school or of any particular type, the claim that A did not receive an effective education whilst at L S School is bound to fail.

As for A’s withdrawal from L S School, this is not arguably a breach of A2P1 since it occurred for good reasons, namely, the inability of the school to cope any longer with A who threatened the safety of other pupils and the staff and because he needed to be assessed so that an appropriate placement could be found for him.

Does the claim that the defendant breached A’s A2P1 rights during the 19 months (less school holidays) by not providing him with an education during this period have a real prospect of success? In my judgement it does not. A was out of school during this period because of the danger he posed to fellow pupils and staff and because he was waiting to be assessed and then waiting for a suitable placement to be found. The delay in having A assessed was due to the fact that the assessment required specialist professionals and facilities of which only a few were available, so that there was a waiting list. It is suggested in a witness statement provided by A’s solicitor that the assessment was delayed because of a delay in agreeing funding but there is no reliable evidence that this was the case. The delay in placing A after the assessment was due to the difficulty the defendant had in finding a suitable placement. As recorded above, they wrote to 26 schools over the period 16^th October 2002-17^th December 2002. On 9^th February 2003 K School offered a place which was accepted but it was only available from 28^th July 2003.

As recorded above, during the period A was out of school awaiting an assessment and then a suitable placement, he was provided with two boxes of educational activities – touch books and bubbles—to do at home, he had language and speech therapy two mornings a week from early March 2002, he attended activity sessions at L S School during May and June 2002, he attended teaching sessions at the school from the end of June to 24 July 2002 and in late January 2003 he began attending L House for respite care three days a week for two hours a day. There is no doubt that during this period A was under-stimulated and his development achievements regressed but since his placement at K School, he has caught up. There is also no doubt that the burden on his parents and other members of his family when he was out of school must have been very considerable. However, in my opinion, it cannot be successfully argued that he was denied the basic minimum of education guaranteed to him under A2P1.

As stated above, the Court of Appeal said in Anufrijeva that it was hard to conceive of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with support where his predicament is not sufficiently severe to engage Article 3 (para 43). I have already held that A’s situation was not such as to engage Article 3. I am also of the view that the necessary degree of culpability on the part of the defendant is lacking. A had to be removed from school pending an appropriate assessment and then finding a suitable placement. The steps taken by the defendant to provide education and support for A whilst he was out of school are recorded above.

For these reasons, A’s Article 8 claim has no real prospect of success.

The fixed term exclusions about which J complains were a permissible regulation of her education and during these periods she was offered work to do by the school. The claim that these exclusions breached J’s A2P1 rights is accordingly hopeless, as are the claims based on the alleged inadequacies of the placements at the PRU and AA Base, there being no right under A2P1 to an education of a particular type or at a particular school. Further, following J’s withdrawal from AA Base, there was no breach of her A2P1 rights since she was not excluded from the education system. On the contrary, she could have attended the R School but her mother declined the placement, she was afforded the opportunity of taster sessions at U S S School which proved unsuccessful, and a placement at T House was found on 28^th November 2003 which took effect initially on a part-time basis on 19^th January 2004, with J attending S J’s PRU for a number of days a week in the interim.

There is no allegation that Article 3 was engaged. A2P1 was not breached and no particulars are given of what beyond the provision of an effective education the defendant failed to do. It follows that the Article 8 claim is hopeless and is bound to fail.

The claims that B H School and B Special School were not appropriate for S must fail since these are complaints about the type and quality of the education the defendant provided at these schools.

The claims based on the fixed term and permanent exclusions from B H School and B Special School are also bound to fail since the defendant was entitled to regulate S’s education in this manner and she was offered work to do whilst she was excluded.

Further, the placement at C PRU between September 2002 and 27^th February 2003 plainly satisfied any requirement to provide a minimum level of education -- even on S’s case she received 14 hours’ tuition per week. ( In Lord Grey, the offer of part-time education covering only a limited range of subjects was held not to be a breach of the claimant’s A2P1’s rights).

Finally, S was not denied access to the education system in the period 27^th November 2003 to 18^th April 2005. By 30^th November 2003 the defendant had agreed to pay for an out-of-county, residential placement and by 19^th January 2004 such a placement (at C School) had been identified, but was refused. The defendant then arranged for a home tutor from 23^rd February 2004 but S was unavailable to receive the tuition and on 2^nd March 2004 she was offered a placement at F P School from which she ran away on 4^th March. By 17^th May 2004, the defendant had re-secured the offer of a place at C School to commence on 8^th June 2004 and this place was taken up. It has also to be noted that in March 2004, S’s solicitor wrote to the defendant stating that S’s future educational provision would have to await the outcome of the possibility of her mother applying to have her made a ward of court.

The claim that the defendant was in breach of S’s A2P1 rights in respect of the period when she was sent home from C School on account of her pregnancy in the period January 2005-18^th April 2005 is plainly bad. S was not excluded from the education system by the defendant during this period. She was at home because she and her mother needed carefully to consider the implications of her pregnancy and the school had an entirely reasonable concern that her presence as a boarder whilst pregnant posed health and safety questions.

For the same reasons that J’s Article 8 claim is doomed to fail, so is S’s equivalent claim.

Throughout the period during which B claims he was denied an effective and meaningful education (2^nd September 2003 to 26^th April 2004) there was a school available for B to attend, namely O High School, which was named in the amended SSEN of 6^th May 2003 and at which a responsible doctor (although not B’s GP) was of the opinion that B was medically fit to attend. SENDIST decided in December 2003 that O High School was not an appropriate school but this does not mean that the defendant had acted in breach of B’s A2P1 rights. On the contrary, B unquestionably had access to the education system available in the UK, including the SENDIST appeal processes. There is no right under A2P1 to a perfect system. Accordingly, the defendant’s honest decision to name O High School in the SSEN is not a breach of B’s Convention rights. Further, there was no obligation to provide B with education of a particular type or level or at a particular school and the offer of tuition in the YMCA Unit and the provision of 10 ½ hours home tuition per week from 19^th January 2004 rising to 14 ½ hours (from 4^th February) and then 20 ½ hours (from 26^th February 2004) pending her placement at P M School in any event satisfied any obligation to provide education to a minimum level.

This claim is bound to fail for the same reasons that the Article 8 claims made by J and S are bound to fail.

Given my decisions on the Part 24 applications it is strictly unnecessary to deal with the applications to extend time but in the circumstances I think I ought to do so. I proceed on the basis that the claims in all four actions have a real prospect of success.

Section 7 (5) of the HRA provides:

Proceedings under subsection (1) (a) must be brought before the end of

(a)

the period of one year beginning with the date on which the act complained of took place; or

(b)

such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but is subject to any rule imposing a stricter time in relation to the procedure in question.

All four claims were issued on 5^th May 2005 and all the claims made therein were out of time save for those parts of S’s claim that relate to the periods 5^th May 2004-7^th June 2004 and January 2005-18^th April 2005.

The wording of section 7 (5) is very similar to that used in the equivalent provisions in the Sex Discrimination Act 1975 (s.76(6)(b)), the Race Relations Act 1977 (s.68(6)(b)) and the Disability Discrimination Act 1995 (Schedule 3, para 3(3)), which provide for an extension to the limitation period where “in all the circumstances of the case”, the court considers it would be “just and equitable” to do so.

Section 7 (5) confers a wide discretion on the court but in my judgment it always has to be remembered that there is a significant public interest in public law claims against public bodies being brought expeditiously.

I respectfully agree with Sir Michael Turner’s holding in Cameron v Network Rail Infrastructure Ltd [2007] 1 WLR 163 that the burden of establishing that it is equitable to extend time under section 7 (5) is on the party seeking the extension, but that said, there must be few cases which will be decided on burden of proof grounds.

In London Borough of Southwark v Afolabi [2003] EWCA Civ 15, Gibson LJ said in respect of a race discrimination complaint brought out of time that there was no requirement for an Employment Tribunal to go through the list of matters set out in section 33 (3) of the Limitation Act 1980 but in many cases it could be useful to consider such a check list. For the avoidance of doubt, I make it clear that I have had regard to the s. 33 (3) list, particularly items (a), (b), (d) and (e).

It has been held that time taken in obtaining legal aid is a relevant factor (Sacker v West Yorks Coroner [2003] 2 All E R 278) and can be an excuse for delay in bringing an application for judicial review (R v Stratford-upon- Avon DC ex parte Jackson [1985] 1 WLR 1319). Where a claimant’s failure to proceed within the limitation period is due to an error on the part of his solicitors, it has been held in the context of the Limitation Act 1980 that the claimant must bear responsibility, as against the defendant, for the resulting delays and the claimant’s resulting insurance rights must be taken into account when balancing the prejudice on each side; see Horton v Sadler and Another [2007] A C 307, especially the speech of Lord Carswell at 329G-330C.

The question of proportionality is important in the exercise of any discretion to extend time limits, see Adams v Bracknell Forest Borough Council [2005] 1 AC 76 at paras 54-55. In Anufrijeva, the Court of Appeal observed that a claim for damages under HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, is likely to cost substantially more to try than the amount of any damages likely to be awarded, and there will often be no certainty that an entitlement to damages will be established at all. Accordingly, the courts should look critically at any attempt to recover damages under HRA for maladministration by any procedure other than judicial review, and before permission is given for such an application the claimant should explain why it would not be more appropriate to use any available internal complaint procedure or by making a claim to the Ombudsman. And if there is a legitimate claim for other relief, consideration should be given to deferring permission for the damages claim, adjourning or staying that claim until use has been made of alternative dispute resolution.

The Court of Appeal also said:

53.

Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. This is reflected in the fact that, when it is necessary to resort to the courts to uphold and protect human rights, the remedies that are most frequently sought are the orders which are the descendents of the historic prerogative orders or declaratory judgments. The orders enable the court to order a public body to refrain from or to take action, or to quash an offending administrative decision of a public body. Declaratory judgments usually resolve disputes as to what is the correct answer in law to a dispute. This means that it is often procedurally convenient for actions concerning human rights to be heard on an application for judicial review in the Administrative Court. That court does not normally concern itself with issues of disputed fact or with issues as to damages. However, it is well placed to take action expeditiously when this is appropriate

I turn to deal with each of the four claims.

A’s solicitors, the Children’s Legal Centre (“CLC”), were first instructed on 14^th April 2002. On 31^st July 2002, CLC were informed by the defendant that it did not propose to make amendments to A’s SSEN. On 14^th November 2002, CLC wrote to the defendant complaining that, contrary to his SSEN, A was only receiving short periods of speech and language therapy. On 10^th January 2003, CLC wrote to the defendant seeking confirmation within 14 days that it would fund 2:1 support, failing which instructions would be taken from A’s parents about the possibility of an application for judicial review. On 30^th May 2003, CLC: (i) sent a formal letter before action to the defendant in contemplation of an application for judicial review complaining about the lack of educational provision for A and demanding that an appropriate residential placement be provided immediately and that there be an urgent re-assessment of A’s special educational needs; and (ii) applied to the Legal Services Commission (“the LSC”) for funding, which application was supported a month later with a pro bono Advice from Counsel. The LSC refused the application on the ground that an appropriate school place was going to be available from the end of July 2003.

On 6^th February 2004 CLC sent a letter before action to the defendant in contemplation of an action for damages for breach of A’s A2P1 rights and on 26^th February 2004 applied to the LSC for funding for this claim. Applications for funding of the claims to be made by J, S and B were made at about the same time. On 30^th March 2003, A’s funding application was refused: the LSC was concerned that the costs would be disproportionate to any damages recovered and given the difficulty in quantifying the loss, the case did not meet the LSC’s cost/benefit test. CLC appealed. On 13^th October 2004 the LSC’s Public Interest Advisory Panel gave the cases of A, J, S, B and one other a rating of “high” public interest because the Panel felt that judicial review proceedings were not being fully effective in providing a remedy for children with special educational needs. On 29^th March 2005, the LSC finally agreed to fund A’s case on the basis that it would be a test case. The cases of J, S and B would be funded to cover the issue of proceedings and a stay if necessary on the basis that those cases would be held in abeyance until the conclusion of A’s case.

The position on the date proceedings were issued was as follows: (i) four years had elapsed since the alleged breach of A’s A2P1 rights had started; (ii) over three years had elapsed since A was excluded from L S School on 18^th January 2002; and (iii) just over 22 months had elapsed since the alleged breach of A’s rights ended when he began at K School on 27^th July 2003.

In my judgement, it is not equitable to extend the limitation period in this case. My reasons are these. CLC, who are very familiar with the law relating to education, were instructed on 14^th April 2002 but no application for judicial review was made until 30^th May 2003, an application that foundered on the LSC’s refusal to grant funding because a school place was going to be made available from the end of July 2003. No such reason would have existed for refusing funding for a judicial review application made towards the end of 2002 but such an application was not made. Instead, proceedings have been issued a long time after the alleged infringements came to an end and at a stage when there is little point from A’s personal point of view in seeking a declaration that his rights were infringed. As for his damages claim, it is far from certain that a court would conclude that an award of damages is necessary to afford him just satisfaction and any sum awarded is likely to be modest and therefore at a level that is disproportionate to the costs of the proceedings. It was this lack of proportionality that understandably led the LSC to refuse funding until March 2005. I do not think that the public interest identified by the Public Interest Advisory Panel tips the balance in favour of extending time. The question whether A2P1 confers a right to an education in accordance with the relevant SSEN, and if so, the appropriateness of an award of damages and the impact on the alleged shortcomings of judicial review in special educational needs cases, can be as easily (and more appropriately) determined in an upcoming application for judicial review made by another party as in these very late proceedings.

On 11^th November 2003, J’s mother sent a long and detailed letter of complaint to the defendant setting out the history of the matter and expressing extreme concern that J had been left for so long with no education. On 18^th November 2003, J’s mother first consulted CLC. On 17^th December 2003 J’s mother wrote again to the defendant expressing her concern about the length of time it was taking to find a teaching assistant for J and the need to speed up the process of getting J into a suitable educational setting. On the same date, CLC sought disclosure of J’s school records from the defendant and on 24^th March 2004 sent a letter before action to the defendant contending that there had been a failure to provide J with suitable full time education from 1^st May 2002 until 11^th September 2002 and from 19^th December 2002 until 19^th January 2004, contrary to s.19 (6) Education Act 1996 and A2P1. CLC required the defendant to make an immediate offer to pay damages commensurate with J’s loss. Prior to this letter, on 10^th March 2004 CLC applied to the LSC for public funding to bring the claim. This was 2½ years from the date of the first alleged infringement and some 15 months after J was first out of school. Funding was granted on the 4^th April 2005 for proceedings to be begun but on the basis that they would be stayed pending the conclusion of A’s claim.

When the proceedings were commenced it was 14 months since the end of the alleged infringement of J’s ECHR rights, 3½ years since the first alleged infringement, and 2 years 4 months since J was out of school following her departure from AA Base.

In my judgment, it is not equitable to extend time for any of the claims made by J. The infringements alleged to have occurred before J’s mother consulted CLC occurred a long time before the proceedings were issued; indeed, even when legal aid was sought, this was 2 years 6 months after the first infringement. It is clear from her letters of 11^th November 2003 and 17^th December 2003 that J’s mother is an educated, articulate woman. I have no doubt that she was alive to the possibility of consulting a solicitor throughout the whole period of the alleged infringements. J has been settled in a satisfactory placement since 19^th January 2004. She has little if any real interest in a declaration that the defendant breached her Convention rights before this date and the damages sought are very likely to be significantly less than the cost of bringing the action, always assuming, which is far from certain, that the court will find that damages are necessary to afford J just satisfaction.

When the claim was issued on the 5^th May 2005 it was 3 years 8 months since the beginning and over two years from the end of the first period of alleged infringement of S’s A2P1 rights. The dates of the other periods of alleged infringement are 10^th January 2002 –end of September 2002; September 2002-26^th February 2003; 27^th February 2003-14^th November 2003; 5^th May 2004-7^th June 2004; and 2005-18^th April 2005. The claims in respect of the last two periods are accordingly not out of time.

S’s mother had engaged CLC by 20^th June 2002 on which date CLC wrote to the defendant asking for copies of S’s school records and the details of S’s exclusion from BH School. On 27^th February 2003, CLC sent a letter before action to the defendant in contemplation of a judicial review alleging eight separate failures in respect of S’s education. The letter required the defendant to carry out an immediate statutory re-assessment of S’s special educational needs and to amend part 4 of the SSEN to name B School as the placement. CLC also stated that B H School and the defendant should pay compensation to S for the loss of her education, including the lack of support for her special needs, from September 2001 to the 27^th February 2003. On the 14^th March 2003, a funding certificate was granted for investigative help with a claim by S under HRA and three days later CLC wrote to the defendant stating that having received advice from counsel they were proposing to issue proceedings for breach of S’s right to education. On 1^stMay 2003, the LSC issued an amended funding certificate to cover all steps in the claim down to close of pleadings. On 6^th June 2003 an application for judicial review was issued on behalf of S which set out the complaints about the provision of education for S down to the 2^nd June 2003. The relief sought included a declaration that the defendant had acted contrary to A2P1, a mandatory order that the defendant cease to act in contravention of A2P1, and damages.

At the oral permission hearing on 23^rd July 2003 permission was refused, apparently on the ground that SENDIST should be left to get on with determining the outstanding issues. No attempt was made to appeal the refusal of permission. On 28^th July 2003 CLC lodged a further appeal at SENDIST.

Following S’s permanent exclusion from B School on 14^th November 2003 and her expulsion after one day from F School, on 3^rd March 2004 CLC wrote to the defendant stating that an application had been made for a public funding certificate for S to make a claim for damages for breach of A2P1. A certificate to cover the issue of proceedings and a stay if necessary on the basis that the case would be held in abeyance until the conclusion of A’s case was issued on the 29^th March 2005.

By the claim issued on 5^th May 2005, S is seeking to re-litigate the HRA claims made in her unsuccessful judicial review application heard on 23^rd July 2003. I have no doubt that it would not be equitable to extend time to allow her to do this. Justice also does not require that she should be allowed to bring a claim in respect of the period June 2003-4 May 2004, since: (a) the complaint regarding this period is essentially the same as that made in her judicial review application.--- the inappropriateness of the proposed placement at B Special School; and (b) CLC continued to act for S.

On 27^th March 2003, CLC were instructed on behalf of B. They took over from other solicitors who had previously been instructed. On 28^th May 2003, CLC filed an appeal against the contents of the amended SSEN including the naming of the OH School. On 5^th June 2003, CLC sent to the defendant a letter before action in contemplation of an application for judicial review alleging, inter alia, a failure to provide B with a speech and language therapy programme to address his semantic pragmatic language difficulties as required by his SSENs. Complaint was also made of a failure to identify a placement suitable to B’s needs and a failure to assist B’s parent in identifying alternative school placements. B’s application for judicial review was issued on 4^th July 2003. The application recited the history and in addition to alleging breaches of the Education Act 1996, alleged, citing the Belgian Linguistics Case, that the defendant had contravened B’s A2P1 rights. The remedies sought included a declaration that the defendant had acted in contravention of A2P1 and damages. At an oral hearing on 25^th July 2003 Moses J refused permission for the application (Footnote: ³). No attempt was made to appeal that order.

On 22^nd January 2004 B’s solicitor wrote to the defendant maintaining that the tuition at the YMCA Unit was unsuitable for B’s needs. This was followed by a letter before action dated 12^th February 2004 written in contemplation of an action for damages for breach of B’s A2P1 rights. Included in the complaints was an alleged failure of the defendant to provide the support specified in B’s SSEN dated 6^th May 2003 from 1^st September 2003 to date. On 8^th March 2004 CLC applied to the LSC for funding. The application was granted on the 29^th March 2005 on the same terms as applied to the claims brought by J and S.

Although the proceedings were only a week out of time from the first anniversary of the end of the period of alleged infringement, they were issued some two years after the defendant had amended the SSEN to provide for attendance at O High School.

In this case too I think that time should not be extended. The period in which B claims his Convention rights were breached is 2^nd September 2003-26^th April 2004. His application for judicial review alleging, inter alia, breach of his A2P1 rights was issued on 4^th July 2003 and permission was refused on 25th July 2003. His principal complaints in respect of the period 2^nd September 2003-26^th April 2004 are that (i) the defendant should not have specified O High School as the school he should attend; and (ii) the offer of tuition in the YMCA unit was not an offer of education appropriate to his needs. Complaint (i) overlaps with the complaint made in the failed judicial review application. The judicial review application afforded B the opportunity to have the issues of principle said to arise out of his 2005 claim heard and determined. That opportunity was taken but failed. In my judgement, justice does not require that B should be allowed to re-litigate the same issues out of time. As I have said in respect of the three other claims, the claimant now has no real personal interest in seeking a declaration and his claim for damages is disproportionate, given the modest amount likely to be awarded compared with the costs of the action.

The defendants’ applications for summary judgement under Part 24 succeed and the claimants’ applications for an extension of time are refused.