This judgment is connected to a set of proceedings relating to housing ([2022] EWHC 2008 (Admin)), education and social care provision by several public bodies across two local authority areas.
Please note that the summary below relates to [2023] EWHC 489 (Admin) (07 March 2023), a claim by two children, ZB and DB, brought by their mother acting as their litigation friend and seeking several orders and declarations connected to arrangements for ZB’s and DB’s education. While the claim for judicial review sought orders on five separate matters, several of them connected to the children’s education, health and care plans (see paragraph 5 of the judgment for details), the High Court ruled on one of them only, dismissing the remaining ones, primarily due to ongoing proceedings before the First-Tier Tribunal. This summary is therefore limited to the claim for breach of the children’s right to education under the European Convention on Human Rights (ECHR).
Siblings awarded financial remedy after local authority found in breach of the right to education under the European Convention on Human Rights
Background
DB, a boy aged 14, and his sister ZB, aged 12, live with their mother, a single parent, and their two-year-old brother. Both DB and ZB “have significant and profound disabilities. Both have neurological conditions, global developmental delay, learning disabilities, four limb motor disorder, epilepsy, variable heart block, the heart condition long QT syndrome and low muscle tone. They are both registered blind, use non-verbal communication, are incontinent, fed by tube and use wheelchairs. Each of them has respiratory vulnerabilities and sleep disturbance patterns”. The judgment further notes the children’s mother “has been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, depression and anxiety, obsessive compulsive disorder and asthma”.
An occupational therapist concluded that both children have “high moving and handling needs, large equipment requirements, need hoisting for all transfers and are fully dependent on carers to meet all of their needs” and made a series of recommendations for accommodation.
In November 2020, the family moved into accommodation provided by the old local authority within the area of the new local authority. This followed a homelessness application by the family and was intended to be interim accommodation, but the family remained there for much longer. This accommodation, which was the subject of separate court proceedings, was deemed inappropriate for many reasons, including damp, mould, “largely inaccessible” bathroom and there being only one bedroom on the ground floor, meaning one of the children, DB, was “largely restricted” to his bedroom, with very limited ability to see his sister and socialise with the rest of the family. As part of court proceedings concerning this accommodation, the High Court found the living conditions had a serious and damaging impact on the children’s health and development, prevented them from accessing short breaks, and badly affected the children’s education and social development.
Access to education
After the family moved to the new local authority, the new local authority was informed about their move and immediately accepted responsibility for both children. The children’s education, health and care (EHC) plans were transferred to their new local authority. According to both EHC plans, the children were enrolled in ‘LLS’ – a community special school for children with visual and sensory impairments. By that point both children had not attended school for a substantial period of time. The new local authority maintained that DB and ZB would continue to attend LLS once transport arrangements to and from school were made. The children’s mother indicated in her transport application the need for a medically trained escort, but the local authority’s passenger transport service responded by saying they had no trained staff and that the children’s mother would have to travel with the children during their journeys to and from school. Following correspondence from the family’s solicitors, the local authority offered to provide a nurse but only for one of the children and for a period of four weeks only. The council insisted that it would not be making any alternative educational provision for the children because they were enrolled at LLS.
Following further correspondence from the family’s legal team, a request was made for both children to attend a non-maintained special school, TCT, which offered residential accommodation in addition to education. This was refused by the local authority because of the cost, with the local authority stating the children could attend LLS as day students. Transport arrangements were not resolved by that point and other matters were unaddressed, including DB’s inability to move from his upstairs bedroom and difficulties in ZB’s wheelchair moving along the driveway to reach a vehicle.
By April 2022, DB and ZB had been out of education for 18 months and were only receiving one to two virtual lessons per week and a weekly music session. In response to further pre-judicial review steps by the family’s lawyers, the local authority offered to refer the children to its home tuition service as an interim solution, pending resolution of the school attendance issue.
In November 2022, both children joined TCT school and started receiving non-classroom-based education on site.
The issues before the High Court
On behalf of DB and ZB, their mother sought declaration and damages in connection with the new local authority’s breach of the children’s right to education under the European Convention on Human Rights (ECHR).
(Similar declaration and damages were sought in relation to article 8 ECHR, right to respect to private and family life. The court dismissed it because the claimant did not show that the new local authority, not the old one, bore primary responsibility for ECHR breaches, as is required in cases where more than one public authority is said to have contributed to breaches of Convention rights. See paragraphs 35-36 for details.)
The legal framework
Education, health and care plans (EHC) plans – responsibility and transfer Section 24 of the Children and Families Act 2014 states: (1) A local authority in England is responsible for a child or young person if he or she is in the authority's area and has been— (a) identified by the authority as someone who has or may have special educational needs, or (b) brought to the authority's attention by any person as someone who has or may have special educational needs. […] Regulation 15 of The Special Educational Needs and Disability Regulations 2014 requires that, where a child or young person in respect of whom an EHC plan is maintained moves from one local authority (“the old authority”) to another local authority (“the new authority”), the old authority must transfer the EHC plan to the new authority on the day of the move or, where it has not become aware of the move at least 15 working days prior to that move, within 15 working days beginning with the day on which it did become aware (regulation 15(2)). From the date of the transfer of the EHC plan, it is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority (regulation 15(3)). The new authority must, within 6 weeks of the date of the transfer, inform the child's parent or the young person that the EHC plan has been transferred and let them know whether an EHC needs assessment is proposed and when the next review is proposed (regulation 15(4)).
The right to education under the European Convention on Human Rights The European Convention on Human Rights (ECHR) guarantees a range of rights, freedoms and protections to children and adults alike. Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with ECHR rights. Section 8(1) of the Human Rights Act 1998 gives UK courts the power to award ‘remedy’ or ‘relief’ if it finds an act of a public authority (actual or proposed) unlawful. Article 2 of the First Protocol to the ECHR (A2P1) guarantees the right to education, and the aspect of this article which the High Court focused on was: “No person shall be denied the right to education”.
Relevant case law The House of Lords (the predecessor to the Supreme Court) set out the expectations in relation to guaranteeing the right to education under the ECHR in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14: “[European Court of Human Rights case law] … makes clear how article 2 should be interpreted. The underlying premise of the article was that … 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 … The fundamental importance of education in a modern democratic state was recognised … 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... 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?” (Paragraph 24; emphasis added) In A v Essex County Council (Rev 2) [2010] UKSC 33 (14 July 2010), the Supreme Court explained how a breach of the right to education under the ECHR may arise: “… a denial of education under the article can arise in a variety of ways. Obviously, a calculated refusal to allow a pupil access to any form of even basic education will be in violation of the right. But a failure to take steps to provide education when the state authority responsible for providing it is aware of the absence of the pupil from any form of education could in certain circumstances give rise to a breach of the right. If, for instance, a local education authority knows that a child has been asked by a school not to attend that school; and if the authority is responsible for the provision of education to that child; and if it takes no action to supply any alternative to what has been previously provided by the school, it is at least arguable that it is in breach of its duty under article 2 of the First Protocol. I would go further. I believe it also to be at least arguable that an authority with the responsibility for providing education, if it knows that a pupil is not receiving it and engages in a completely ineffectual attempt to provide it, is in breach of the provision.” (Paragraph 161; emphasis added)
The High Court’s decision
The local authority was found in breach of A2P1 rights ECHR in relation to both children. The High Court stated:
“Making all due allowances for the “weak” character of the A2P1 right …, in my judgment, … [the new local authority] acted in breach of the A2P1 rights of DB and ZB. The children were unable to attend mainstream education and there were only a handful of schools where education could realistically have been provided to them. […] Knowing that the children were not in fact attending [school], nor receiving alternative educational provision (save for a handful of virtual sessions which nobody has contended were adequate “education”), [the new local authority’s] efforts … can fairly be described as completely ineffectual…” (Paragraph 30; emphasis added)
“… more than 16 months after [the children] moved into [the new local authority’s] area, the children were still unable to attend [the school they were enrolled in] for lack of adequate transport and accompanying escort arrangements. […] This would be a lengthy period for any child to be out of education but would have had a particularly significant impact on DB and ZB given their lack of social contact in their day to day lives. It is little short of heart-breaking to contemplate the plight of the children during this period, when they were housebound – and in DB’s case confined to his bedroom – for weeks if not months on end.” (Paragraph 31; emphasis added)
While acknowledging that the “wholly unsuitable accommodation” arranged for the family by the old local authority “rendered it significantly more challenging for the children to attend school”, and therefore the old authority bore some responsibility with regards to missed education, the High Court stressed that this fact did not absolve the new local authority of its duties under A2P1. The new local authority’s assertion that that it had done its best was rejected by the High Court which concluded that this was “not good enough to satisfy the requirements of A2P1”.
Damages for breach of article 2 of Protocol 1 ECHR
The Court determined that the period of the breach started on the date when the local authority assumed responsibility for the children and ended when it formally offered to refer them to its home tuition service, totalling 16.5 months.
The financial remedy sought by the children’s mother was based on that recommended by the Local Government and Social Care Ombudsman in cases where maladministration has resulted in a child missing out on education, i.e., £200-£600 per each month of missed education.
The High Court concluded that the appropriate compensation was £10,000 each for DB and ZB, amounting to £600 per month and representing the upper end of the Ombudsman’s scale “in light of the absence of any significant educational provision during the relevant period and the likely severity of the impact on the children given the very limited social contact which they otherwise had”.
You can read the Ombudsman’s guidance on remedies here. Detailed information about the recommended remedies in situations involving loss of education in the context of special educational needs and disabilities, and alternative provision, is also available on the Ombudsman’s website here.
You can read the full judgment here: ZB & Anor, R (On the Application Of) v NHS South West London ICB [2023] EWHC 489 (Admin) (07 March 2023)
