England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE FIELD
HQ 05X01273

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/04/2008

Lord Justice Sedley :

1. The claim to which this appeal relates was brought on behalf of a severely disabled child, anonymised as A, for damages for breach of his human rights. It was dismissed by way of summary judgment by Field J [2007] EWHC 1652 (QB) on the ground that it had no realistic prospect of success; but, since the claim had been brought out of time, for reasons which he went on to give he would in any event not have granted the necessary enlargement of time. His judgment dealt not only with A's claim but with three others brought on similar grounds. Although he dismissed all of them, it is this one alone which, on cost grounds, it has been decided to bring before this court on the issues of principle which it raises.
2. Pursuant to permission to appeal granted on consideration of the papers by Moore-Bick LJ, Nicholas Bowen therefore had a twofold task on the claimant's behalf: to demonstrate that the claim does have a realistic prospect of success, and to establish that the judge was wrong to hold that in that event time should not be enlarged. At the conclusion of argument on the first limb, however, we indicated that, for reasons which would be given, the appeal failed on the first issue, with the consequence that argument on the enlargement of time would not be needed.
3. A's claim is for damages under the Human Rights Act 1998 for breach by his local education authority, the defendant, of the right to education vouchsafed by art. 2 of the First Protocol ("A2P1") of the European Convention on Human Rights, and also of arts. 3, 8 and 14 of the Convention itself. His essential case is that, for want of even minimally suitable provision for his education, he was shut out of the state system for 18 or 19 months. The consequences are said to have amounted to inhuman or degrading treatment and an unjustified disruption of his private and family life, as well as to discrimination in the enjoyment of the A2P1 right.
4. The articles in question provide as follows:

Article 3

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

Article 8

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

Article 14

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.

First Protocol, Article 2

No person shall be denied the right to education.

The right to education

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

13. 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.

14. 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.

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

16. 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.

17. 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.

18. 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 with "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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

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

81. 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.

99. 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.

100. 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.

101. 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.

102. 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.

8. The application of A2P1 to exclusions occurring in the English education system was considered in Ali v Lord Grey School [2006] 2 AC 363. Since the House of Lords in that case examined in detail the jurisprudence of the European Court of Human Rights, in particular the seminal decision in the Belgian Linguistic (No 2) case (1968) 1 EHRR 252, the reasoning of the House is in large part exhaustive for present purposes. So I will begin there, and then look only as much further afield as is appropriate.
9. The claimant in Lord Grey had been excluded from school while the police investigated a case of arson possibly involving him. In the event he was cleared, but meanwhile he had lost about 10 months' schooling. Lord Bingham's conclusion in favour of the school, in which three other members of the Appellate Committee concurred, turned principally on the fact that it was through the family's non-cooperation that the opportunity for surrogate schooling during the period of exclusion had been lost. Lord Hoffmann's conclusion, in which Lord Bingham and two of the three remaining members of the Committee also concurred, was based on more fundamental issues of principle.
10. All the speeches recognised that A2P1 confers or recognises only a right of access to such system of education as each member state provides. Lord Bingham (§24) spoke of a right under A2P1 of "effective access to such educational facilities as the state provides for such pupils [as the claimant]". Lord Hoffmann (§57) considered that a breach must involve denial of "the basic minimum of education available under the domestic system".  There is a possible tension between these two formulations; but it is not a tension which affects the present case because Mr Bowen's case is that A was subjected, either literally or substantively, to "complete exclusion from the system".
11. For my part, like Field J, I consider that the facts asserted (and in large part uncontroverted) are not capable of amounting to a breach of this Convention right. The thrust of the case, as I have noted earlier in this judgment, is that it was L S School which excluded A and Essex County Council which thereafter failed to make alternative provision for him. It is not that he was wrongly allocated in the first place to a school that was not equipped to cope with him; that would in any case have been a matter for the SEN system. Nobody seeks to blame the child, but the fact was that L S School could not cope with the dangers he presented to others and in part to himself. The request to his parents to keep him at home was forced upon the school, and it then fell to the county council to make better provision for him. It took them longer than it should have done, but the passage of time is intelligibly accounted for and it is not suggested that there was any deliberate backsliding: indeed the provision the council finally, and everyone agrees rightly, made was at quite colossal public expense.
12. I do not consider that it is possible to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it. Mr Bowen predicates his argument to the contrary on the extra-legal (and therefore, he says, unlawful) exclusion of A from the school to which he had been allocated. This might have mattered before the decision of the House of Lords in the Lord Grey case, but the reasoning of the House in that case makes the proposition unarguable. It is sufficient to recall what Lord Hoffmann said at §61:

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

13. I mentioned earlier a possible tension between Lord Hoffmann's concept of a systemic failure and Lord Bingham's postulate (§24) of the denial to a pupil of "effective access to such educational facilities as the state provides for such pupils". In argument, Mr Bowen drew our attention to the Strasbourg decisions in Eren v Turkey (7 February 2006, unreported) and Timishev v Russia (15 December 2005, unreported), both of which countenance the possibility of a breach of A2P1 in circumstances such as those postulated by Lord Bingham, where the system remains intact but the pupil is excluded from it. While the exclusion may, as in Timishev, be unlawful, it may equally, as in the  recent case of DH v Czech Republic [2007] ECHR 57325/00, be done within the law (in that case by relegating Roma children repeatedly to special schools) but still violate A2P1. Mr Warnock, for the respondent authority, was ready to accept in the light of this jurisprudence that a systemic failure may include cases where the system has abandoned the child; but he submitted, and I agree, that there was no way in which that could be said to have happened to A. As the history set out by the judge demonstrates, this was a child with needs so profound that it took the system a considerable time to adjust and cope. No doubt it could and arguably should have moved faster, once it had become clear that L S School should not have been, or at least should not have remained, the school stipulated in the SSEN. But that is a long way from the system either breaking down or abandoning the child.
14. A substantial part of Mr Bowen's argument was directed not to this but to what he asserted was the failure of the Administrative Court to act decisively by the grant of interlocutory mandatory relief in SEN exclusion cases. It required, in his submission, a preparedness on the part of this court to deploy the Convention right to education as a substitute or a backstop. This remarkable argument, implying that law can be adjusted or devised to meet procedural exigencies, needs only to be stated to be rejected. If the Administrative Court is not granting relief where it should be, this court's door is open. But it requires little speculation to see why judges of first instance may well be rightly reluctant to intervene by mandatory order in the specialised and complex system set up by and under Part IV of the Education Act 1996.
15. In my judgment A's claim under art 2 of the First Protocol has been incapable of succeeding since the decision of the House of Lords in Ali v Lord Grey School, and Field J was right so to decide.

The other Convention rights

16. Nor do I accept that any other article of the Convention was arguably violated.
17. The only viable purchase, in the present context, of the non-discrimination provisions of art. 14 is upon A2P1. It is contended that it was because of his disability that A was denied access to the education system. Because a formal breach of the substantive article is not a requisite of art 14, this argument does not necessarily fall with the case under A2P1. It falls, in my judgment, because there is no evidence whatever of inappropriate discrimination. I put it this way because unlawful discrimination can take the form of treating different cases alike. To have treated A like any other child would have been entirely wrong. It was right and necessary to treat him differently from other children and in that sense to discriminate, albeit in his favour and not against him.
18. Mr Bowen's argument was initially that Field J misunderstood his case, which was that A was to be treated as part of a group consisting of excluded SEN children and that the comparison to be made was with excluded non-SEN children. In other words the question was whether, but for his disability, A's exclusion would have taken the form or had the consequences it did. But none of the facts asserted on A's behalf suggests that non-SEN children who are excluded from school are better treated or secure better or swifter reallocations than excluded SEN children do.
19. Whether for this or another reason, Mr Bowen changed his argument before us to a comparison between the treatment of A, who had been excluded de facto and so had no statutory appeal rights, and the treatment of children who have been formally excluded and so can appeal to an independent tribunal. This argument depends not at all on A's special needs. But in so doing it overlooks the fact that, because of his needs, A had been statemented for a school which, it turned out, could not handle him. Nothing is asserted which suggests that A would have been reallocated any sooner or more appropriately had he been formally excluded from L S School. The extreme nature of his needs deprives the comparison of content.
20. As to art 3, Field J concluded:

87. 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.

21. Field J had reminded himself that the ECtHR in Pretty v UK  (2002) 35 EHRR 1, 33, had accepted that the exacerbation of a naturally occurring physical or mental condition could be enough to violate art 3, but also that in R (Q) v Home Secretary [2003] 3 WLR 365 this court set the level of entry into the protection of art 3 below simple destitution. 'Treatment', moreover, ordinarily requires some deliberate act or omission (including the withholding of treatment) which will have the proscribed effect. For all these reasons I too consider that art 3 is not arguably engaged in this case.
22. The same is in my view true of art 8. As to this, Field J said

103. 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.

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

23. Unlike many, perhaps most, art 8 claims, this one does not depend on justification under art 8(2). It depends on finding a point of entry into art 8(1), and like the judge I cannot discern one. To manifest a denial of respect for A's family and private life the defendant county council would have had at the very least to do something, or to omit to do something, which the duty of respect called upon it to do or to refrain from. For the reasons already canvassed in this judgment, there was no such act or omission invading the primary art 8 rights. The applicability of art. 8 has grown since the inception of the Convention, but the contention that the denial by the state of legal rights, including other Convention rights, engages art 8 by disrupting the individual's or the family's wellbeing is an argument too far.
24. It is of course the case, as this court said in Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, §43, that art 8 may require the provision of welfare support where the welfare of children is at stake; and one must not underestimate the strain evidently thrown upon this family by the lack of stimulation or help for A during the 18-month hiatus in his education; but the Convention is not a panacea for every ill, and I am unable to accept that the want of meaningful educational provision at home during the material period, undesirable though it was, can have amounted to a violation of A's right to respect for his private or family life. The contrasts drawn by this court in the material passage show clearly enough why it is so:

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

Conclusion

25. I am therefore not persuaded on any count that Field J erred in concluding that the claim had no real prospect of success. I would dismiss the appeal on this ground without going on to decide whether he was right or wrong in contingently declining to enlarge time.
26. I would, however, venture to say that serious consideration in a case such as this has to be given to the conditions under which those advising and representing the claimant work. Because of the huge difficulties now encountered by private practitioners in providing a publicly-funded service in this complex and specialised field of law, the Children's Legal Centre, with only a handful of qualified practitioners on its staff, works almost alone. If the claim had otherwise been viable, it might have been necessary to take a hard look at this aspect of the case; but in the circumstances it does not arise and we have not heard argument on it.

Lord Justice Hughes:

27. I agree.

Lord Justice Ward:

28. I also agree.