FOURTH SECTION

Application no. 4867/11 A.W. against the United Kingdom lodged on 14 January 2011

STATEMENT OF FACTS

The applicant, A.W., is a British national who was born in 1989 and lives in Colchester . He is represented before the Court by Ms Ceinwen Rowles of the Coram Children ’ s Legal Centre, a non-governmental organisation based in Colchester .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a vulnerable and profoundly disabled young man, now aged 21. He is autistic and has severe learning disabilities, a severe communication disorder and challenging behavioural difficulties (including aggressive and self-injurious behaviour). He suffers from epilepsy and frequently has ten to fifteen epileptic fits a day despite medication. He is doubly incontinent, has no concept of danger, and requires constant supervision. He was at all material times dependent upon adults to meet his needs.

1. Removal from school in January 2002

From the age of four the applicant had been the subject of a statement of special educational needs (“SSEN”) maintained by Essex County Council (“the Council”). The school specified within the SSEN was Lexden Springs School (“the school”), a state-maintained community special day school for children with severe learning disabilities. The applicant had attended the school since the age of five.

In or around May 2001 the applicant ’ s behaviour began to deteriorate and concerns were expressed by the school about its ability to manage it. On 17 January 2002 the applicant ’ s parents were invited to a meeting with representatives from the school and the council. They were advised that the school could not cope with him and that his continued presence posed a risk to the health and safety of other pupils. His parents were therefore asked not to bring him to school until an urgent medical assessment in a hospital setting was carried out. The parents agreed and the position was confirmed in a letter to them from the Head Teacher dated 18 January 2002. In that letter the Head Teacher expressly stated that he would be in contact with the parents to arrange home support while the applicant was not at school.

2. 17 January 2002 to 28 July 2003

It was agreed at the time of the applicant ’ s removal from school that his community consultant paediatrician would refer him for a residential assessment of his needs. This was confirmed in a letter of 18 January 2002.

On 13 February 2002 a large number of professionals met to discuss the applicant ’ s position. The note of the meeting indicated that the school was sending work for him and that it would arrange for him to continue to access speech and language therapy sessions.

An initial medical assessment took place on 28 February 2002. However, no date could be fixed at that time for the full assessment and the records indicated that a complete assessment could “take a matter of months to resolve.”

On 4 March 2002 the Head Teacher of the school wrote to the applicant ’ s parents, inviting them to bring him into school for speech therapy sessions. The sessions started on or about 20 March 2002 and continued on a weekly basis.

On 29 April 2002 joint funding for the five-day residential assessment was agreed. However, the assessment centre could not offer a five-day assessment window until September 2002.

Around May 2002 the applicant ’ s parents were provided with two boxes of sensory toys to use with him. According to the minutes of a meeting held on 1 May 2002, it was thought that the boxes of toys were “not acceptable education”. It was also acknowledged that the applicant ’ s educational needs “were not being met”. However, the Education Department of the Council stated that there was no home tutor qualified to meet his needs. The school undertook to discuss with teachers and classroom assistants the possibility of providing either home tuition or some tuition at school.

By this stage the applicant ’ s behaviour was becoming increasingly challenging and his parents were struggling to cope. In a report dated 18 June 2002 the community nurse specialist with the Children with Disability Team stated that

“a large part of [the applicant ’ s] challenging behaviour is due to the following 2 factors: ( i ) lack of sensory stimulation, boredom and lack of meaningful occupation; (ii) inability to clearly communicate his needs and be clearly understood by those around him”

The nurse referred the applicant to an occupational therapist and to his doctor, who prescribed him anti-psychotic drugs.

From 25 June 2002 to 24 July 2002 the applicant attended some planned sessions at the school which amounted to a total of eight hours of classroom time. He also attended some planned sessions in September and October 2002.

The residential medical assessment took place between 8 September and 13 September 2002. The assessment observed that the applicant ’ s educational skills and abilities were under-stimulated and that with a high level of support he could begin to re-engage with his environment in a more positive way. It was reported that the applicant ’ s self-harming behaviour arose out of this under-stimulation. The assessment recommended a residential programme which could offer the benefit of a twenty-four hour curriculum with consistent behavioural strategies at a specialist placement with expertise in managing very challenging behaviours in order to meet his complex needs.

In early October 2002 inter-departmental funding was confirmed for a residential placement. Between October 2002 and April 2003, the Council ’ s Education Department wrote to twenty-six schools seeking a long-term placement for the applicant. At or around this time there was recognition that a realistic time-frame for securing a residential school placement would be at least another three to nine months.

In January 2003 the applicant began to receive respite sessions three mornings a week at the Limbourne Centre, where he was also offered tuition. He continued to attend sessions at the school as before.

On 9 February 2003 the Kisimul School offered a place to the applicant. However, due to construction work at the school the placement would not become available until 28 July 2003.

At a meeting on 12 February 2003 concerns were raised that the applicant was still not receiving education sufficient to meet his needs. He was at that time receiving around one hour of tuition per week.

At a meeting on 23 May 2003 it was reported that the sessions at the school were not positive. The applicant ’ s behaviour had deteriorated further since January 2003 and he continued to self-harm.

On 28 July 2003 the applicant started full-time schooling at Kisimul School . He progressed well and his overall health and behaviour both improved. His self-harming reduced and he received education suitable to meet his particular needs.

The applicant left Kisimul School in summer 2008 at the age of 19. He currently lives in residential accommodation in Halstead, Essex.

3. Issue of domestic proceedings

The applicant ’ s solicitor was first instructed on 14 April 2002 but no further action was taken. On 10 January 2003 the applicant ’ s solicitor threatened to bring judicial review proceedings on the ground that his client was not receiving education in accordance with the SSEN. However, no application was made as there was no possibility of the applicant returning to the school at that time.

On 30 May 2003, when it became clear that the applicant would not be able to start at Kisimul School for a few months, his solicitors sent a formal pre-action letter to the Council. However, the Legal Services Commission (“LSC”) refused funding for this proposed judicial review action on the basis that an appropriate school place would become available at the end of July 2003.

On 6 February 2004 the applicant ’ s solicitors sent a further letter before claim to the Council in contemplation of an action for damages for alleged breaches of his rights under Article 2 of Proto col No. 1 and Articles 3, 8 and 14 of the Convention. On 26 February 2004 they applied for funding which was initially refused because the LSC was concerned that costs would be disproportionate to any damages recovered. Funding was finally granted on 29 March 2005 for a test case to be taken.

4. Proceedings in the High Court

On 5 May 2005 the applicant, together with three other children with special educational needs, issued claims against the Council in the High Court, seeking declarations and damages for breaches of their rights under Article 2 of Protocol No. 1 and of Articles 3, 8 and 14 of the Convention on the basis that they were denied effective education for a significant period of time. In particular, the applicant argued that he was denied even the minimum education to which he was entitled between January 2002 and July 2003 and, as a consequence, the council had acted incompatibly with Article 2 of Protocol No. 1.

The council sought an order that the fou r claims be dismissed under CPR 24 on the basis that they had no real prospect of success.

On 25 July 2007 the High Court granted the order and struck out the claims. Relying on the decision of the House of Lords in Ali v. Head Teacher and Governors of Lord Grey School [2006] UKHL 14, the court reiterated that Article 2 of Protocol No. 1 did not confer a right on a person with special educational needs to an education in any particular school or of any particular type. On the contrary, it only guaranteed access to a basic minimum of education and in the applicant ’ s case it could not be argued that there had been a denial of the basic minimum guaranteed to him under the Convention. The court also noted that the claims had been brought outside the time-limit imposed under section 7 of the Human Rights Act 1998 and indicated that in any case it would not have granted the necessary extension of time because no judicial review application had been lodged during the eighteen-month period when the applicant was out of school; the LSC had initially refused to award funding as any award of damages was likely to be modest and therefore the provision of public funding would be disproportionate; and the issues of the appropriateness of damages and the impact of alleged shortcomings of judicial review in SSEN cases would be better dealt with in another case by another party.

5. Proceedings in the Court of Appeal

The applicant was granted permission to appeal but his appeal was dismissed by the Court of Appeal on 22 April 2008.

The court reiterated that Article 2 of Protocol No. 1 only conferred a right of access to such a system of education as each Contracting State provided. Consequently, it agreed with the High Court that there could have been no breach of Article 2 of Protocol No. 1 as the system had not abandoned the applicant; rather, it simply took considerable time to adjust to meet and cope with his complex needs.

The court also agreed that there had been no violation of the applicant ’ s rights under Articles 3, 8 or 14.

Although the court did not specifically consider the question of extension of time, Sedley LJ remarked that had the claim been a viable one “it might have been necessary to take a hard look at this aspect of the case”.

6 . Proceedings in the Supreme Court

On 8 May 2010 the applicant was granted leave to appeal in respect of the complaints under Article 2 of Protocol No.1 only.

On 14 July 2010 the Supreme Court dismissed the applicant ’ s appeal in a judgment reported as A v. Essex County Council [2010] UKSC 33.

A majority of three Justices of the Supreme Court (Lords Clarke, Phillips and Brown) held that it was not arguable that Article 2 of Protocol No. 1 gave the applicant an absolute right to education that met his special needs during the eighteen months that he was out of the formal education system. Moreover, they held that the reason why the applicant had not been provided with education suitable to his needs while he was not attending school was because the necessary resources had not been immediately available. As any right of access to education had to have regard to restrictions on the availability of facilities, there had been no denial of access to education within the meaning of Article 2 of Protocol No. 1.

Nevertheless, a different majority of three Supreme Court Justices (Lords Phillips and Kerr and Lady Hale) found that if such an application had been brought in time, the applicant might have been able to establish a breach of Article 2 of Protocol No. 1 at a full trial on the ground that there had been a failure to provide available educational facilities that would have mitigated the ill-effects experienced by him.

However a majority of four Supreme Court Justices (Lords Phillips, Brown, Kerr and Clarke) agreed that it would not be right to extend the one ‑ year time-limit to enable him to bring his alternative claim. The primary rationale for their refusal was that this claim would resolve no issue of principle and would be unlikely to result in a significant award of damages.

Lady Hale, in a lone dissent on this point, recalled the courts ’ previous practice of granting extensions of time where funding difficulties had delayed the making of the initial application and observed that there would have been no prejudice to the respondent if time had been extended.

B. Relevant domestic law and practice

1. Statutory framework in England and Wales for compulsory education

Section 10 of the Education Act 1996 (“the 1996 Act”) places on the Secretary of State the general duty of promoting education for the people of England and Wales . This obligation has been largely discharged by Local Education Authorities (“LEA”).

Pursuant to sections 13 to 18 of the 1996 Act, the LEA has a general responsibility for education and is required to secure that efficient primary and secondary education is available to meet the needs of the population of their area. Section 19(1) of the 1996 Act further provides that each LEA shall make arrangements for the provision of “suitable education” at school for those children of compulsory school age who, by reason of exclusion, may not otherwise receive suitable education.

Section 19(6) of the 1996 Act defines “suitable education” as “efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.”

The House of Lords in the case of In re T (a Minor) [1998] AC 714 decided that in determining what constituted “suitable education” for the purposes of the LEA ’ s duty it was unlawful for the LEA to take into account financial considerations.

2. Statutory framework in England and Wales in relation to special educational needs

Section 312 of the 1996 Act defines the circumstances in which a child will be recognised to have special educational needs as where he has a learning difficulty which calls for “special educational provision” to be made. Special education provision is defined by section 312(3) as “provision additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the [LEA]”.

Under section 323 of the 1996 Act, where a LEA is of the opinion that a child for which it is responsible requires a determination of his needs, the authority must initiate an assessment of the child ’ s educational needs. If as a result of the assessment the LEA decides that it is necessary to make special educational provision section 324 of the 1996 Act requires that the authority make and maintain a SSEN.

The case of R v London Borough of Hillingdon, ex parte Governing Body of Queensmead School [1997] ELR 331 demonstrates that in assessing what provision is required to meet a child ’ s special educational needs the overriding factor is the need: “[f] inancial constraints can be considered in deciding how those needs are to be met, provided always that they are met.”

3. Judicial consideration of Article 2 of the First Protocol to the Convention

The leading domestic judicial decision is that of the House of Lords in Ali v. Headteacher and Governors of Lord Grey School [2006] UKHL 14. Lord Bingham giving one of the two leading judgments stated:

“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 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?”

Lord Hoffmann put his interpretation of the provision in slightly different terms:

“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. ... 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. ...

... .

... 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.”

4. The limitation period for bringing claims under the Human Rights Act 1998

Section 7(5) of the Human Rights Act 1998 provides that any proceedings brought against a public authority within the meaning of section 7(1)(a) of the Act must be brought before the end of the period of one year beginning with the date on which the act complained of took place. Under subsection (b) of that section courts are endowed with a power to extend the period where “equitable having regard to all the circumstances”.

COMPLAINT

The applicant complains that his removal from Lexden Springs School was in breach of his right to education under Article 2 of Protocol No. 1 to the Convention. He further complains under Article 14 read together with Article 2 of Protocol No. 1 that he was treated differently from students without disabilities.

The applicant also complains that the emotional and physical harm he suffered during the eighteen months he was not attending Lexden Springs School amounted to a breach of his rights under Article 8 of the Convention.

Finally, the applicant complains under Article 13 of the Convention that the limitation period for bringing a complaint under the Human Rights Act 1998 denied him access to an effective remedy for his Convention complaints.

QUESTION TO THE PARTIES

Was the applicant ’ s removal from full-time schooling in breach of his right to education under Article 2 of Protocol No. 1 to the Convention, read alone or together with Article 13?