QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JANET SIVILLS||Claimant|
|GENERAL SOCIAL CARE COUNCIL||Defendant|
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Ms Monica Carss-Frisk QC (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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MR JUSTICE JACKSON: This judgment is in six parts, namely: Part 1, introduction; Part 2, the facts; Part 3, the present proceedings; Part 4, the appeal on the construction point; Part 5, the human rights claim; Part 6, conclusion.
" An application for registration under this Part shall be made to the Council in accordance with rules made by it."
"(1) If the Council is satisfied that the applicant—
(a) is of good character;
(b) is physically and mentally fit to perform the whole or part of the work of persons registered in any part of the register to which his application relates; and
(c) satisfies the following conditions,
it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it.
(2) The first condition is that—
(a) in the case of an applicant for registration as a social worker—
(i) he has successfully completed a course approved by the Council under section 63 for persons wishing to become social workers;
(ii) he satisfies the requirements of section 64; or
(iii) he satisfies any requirements as to training which the Council may by rules impose in relation to social workers;
(b) in the case of an applicant for registration as a social care worker of any other description, he satisfies any requirements as to training which the Council may by rules impose in relation to social care workers of that description.
(3) The second condition is that the applicant satisfies any requirements as to conduct and competence which the Council may by rules impose."
"(1) An applicant for registration as a social worker in the register maintained by the English Council satisfies the requirements of this section if—
(a) being a national of any EEA State—
(i) he has professional qualifications, obtained in an EEA State other than the United Kingdom, which the Secretary of State has by order designated as having Community equivalence for the purposes of such registration; and
(ii) he satisfies any other requirements which the Council may by rules impose; or
(b) he has, elsewhere than in England, undergone training in relevant social work and either—
(i) that training is recognised by the Council as being to a standard sufficient for such registration; or
(ii) it is not so recognised, but the applicant has undergone in England or elsewhere such additional training as the Council may require."
"The Council shall grant an application for registration if —
(a) it is satisfied as to the applicant's good character and conduct; and
(b) it is satisfied as to the applicant's physical and mental fitness to perform the whole or part of the work of a social worker or social care worker; and
(c) where the applicant is a social worker, it is satisfied that
(i) the applicant's competence is such as to make that applicant suitable to perform the work of a social worker; and
(ii) the applicant has —
(aa) successfully completed a course approved by the Council under section 63 of the Act,
(bb) successfully completed a course or possesses a certificate or similar documentation, as set out in SCHEDULE 1 to these Rules, or
(cc) the applicant has successfully completed a course for persons wishing to become social workers approved by a Care Council under section 10 of the Health and Personal Social Services Act (Northern Ireland) 2001, section 54(1) of the Regulation of Care (Scotland) Act 2001 or section 63 of the Care Standards Act 2000; or
(iii) the applicant has outside the United Kingdom, undergone training in relevant social work, which is either
(aa) recognised by the Council as being of a standard sufficient for registration, or
(bb) is not so recognised, but the applicant has undergone such additional training as may be required by the Council ..."
"The following social work degree courses were courses approved by the Council for the purposes of Section 63 of the Act at the date of the making of these Rules:
All social work degree courses currently approved under the General Social Care Council Approval of Courses for the Social Work Degree Rules 2002.
The following university qualifications obtained prior to 1971 shall be regarded by the Council as evidence of training for the purposes of Section 58(2)(a)(iii) of the Act: ..."
There then follows a list of university qualifications and university courses which spans some four pages.
"Holders of the following certificates, letters or other evidence of training shall also be regarded by the Council as having completed training for the purposes of Section 58(2)(a)(iii) of the Act:
Certificate in Child Care issued by the Home Office Central Training Council from 1947 to 1971.
Home Office Letter of Recognition in Child Care issued by the Home Office Central Training Council in Child Care from 1947 to 1971.
Certificate in Social Work issued by the Council for Training in Social Work from 1962 to 1971.
Probation Certificate issued by the Recruitment and Training Committee of the Advisory Council for Probation and After Care until 1971.
Certificate or other evidence of completion of a course recognised until 1971 by the Recruitment and Training Committee of the Advisory Council for Probation and After Care.
Certificate issued by the Institute of Medical Social Workers (previously the Institute of Almoners).
Certificate or other evidence of completion of a course recognised by the Institute of Medical Social Workers (previously the Institute of Almoners).
Certificate or other evidence of completion of a course recognised by the Association of Psychiatric Social Workers.
Certificate of Qualification in Social Work issued by the Central Council for Education and Training in Social work from 1971 to 2002.
Letter of Comparability to the Certificate of Qualification in Social Work issued by the Central Council for Education and Training in Social Work until 1990.
Certificate in Social Service issued by the Central Council for Education and Training in Social Work from 1975 to 1995.
Diploma in Social Work issued by either the Central Council for Education and Training in Social Work or the Council from 1991 onwards."
"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."
I shall refer to this provision as "Article 14".
"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."
I shall refer to this provision as "Article 2".
"I write to express our concerns in relation to those small numbers of Family Court Advisors who undertook an extensive probation route into social work and qualified in the years 1973 to 1975, and who are now unable to register under the specified social work category. I would like to highlight the extensive range of training and development these staff members went through in order to qualify."
Mr Douglas then sets out in his letter what the training of these people involved. Mr Douglas goes on to say that their training was thorough and covered all aspects of the social work rule.
"a) The Care Standards Act 2000 and the General Social Care Council (Registration) Rules 2005 ('the Rules') specify the qualifications required for registration and in your case specifically Schedule 1 of the Rules. The Committee has no discretion to register you if you do not have a qualification which is listed in Schedule 1.
b) You referred to the case of C R Blanchard -v- General Social Care Council (Care Standards Tribunal 10 March 2005) and the Committee considered this. The Committee noted from that case that while an Applicant may have a dispute with the qualifications listed in Schedule 1, neither the Care Standards Tribunal (nor by implication the Committee) has the power to revise Schedule 1.
c) The Committee noted the duration and quality of your experience. Nevertheless, as you acknowledged in your written submissions you do not possess a qualification listed in Schedule 1 and the Committee were therefore unable to grant registration.
d) In relation to your application to [make] oral submissions, the Committee considered the case of D H -v- General Social Care Council (Care Standards Tribunal 14 June 2005). The Committee noted from that case, that 'the presumption should be in favour of allowing oral submissions, save when there is good reason not to'. Given that the Committee's powers are limited as set out above, the Committee regretfully concluded that nothing you could say in oral submissions would alter the Committee's powers. The Committee concluded that this was a good reason not to grant your application to make oral submissions."
"The Tribunal found it surprising that a person with the qualifications and experience of the Applicant falls outside the definition of a 'social worker'. The Tribunal also felt some concern that those with qualifications from overseas that are not listed in Schedule 1 are given the opportunity to persuade the Council that they have equivalent qualifications but those with domestic qualifications that are not listed in Schedule 1 are not given the same opportunity. However, the Tribunal was satisfied that the relevant Rules exclude the Applicant and do not give her the opportunity to argue for discretionary inclusion."
"Holders of the following certificates, letters or other evidence of training shall also be regarded by the Council ..."
(1) Mrs Sivills' claim to be registered as a social worker falls within the ambit of Article 2 (right to education). Such registration is a benefit which Mrs Sivills is entitled to gain from her education.
(2) Under the 2005 Rules, there is discrimination on grounds of nationality or other status between Mrs Sivills and persons who have gained their social work training outside the United Kingdom. This is because, under Rule 4(10)(c)(iii)(aa), persons from outside the United Kingdom are entitled to present evidence of their training to the GSCC, and seek to persuade the GSCC that such training is of a standard sufficient for registration. Under the 2005 Rules Mrs Sivills has no such right.
(3) That discrimination is unjustified, therefore it constitutes a breach of Article 14.
"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. ...
4. The first sentence of Article 2 of the Protocol consequently guarantees, in the first place, a right of access to educational institutions 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."
"57. The loan arrangements can be described as a facilitator of education but they are one stage removed from the education itself. The absence of funding arrangements may make it more difficult for a student to avail himself of his article 2 rights but they are not so closely related as to prevent him from doing so.
58. The Secretary of State's case obtains support from O'Connor's case  ELR 209. It is clear from the passages from Auld LJ's judgment that I have cited at paras 38 and 39 above that he, and Swinton Thomas LJ, who delivered a concurring judgment, accepted the argument that article 2 does not require the state to subsidise a student in the exercise of his right to avail himself of education which it provides.
59. The question can in my judgment be reformulated in the present case as follows: does the package of financial measures that together are available for tertiary education affect the right of access to it? Viewed objectively it seems to me to widen the ambit of availability rather than to narrow it. There is no obligation on a state to make any further education available. As the Belgian Linguistic case 1 EHRR 252 and other authorities make clear, article 2 only bites on that, if any, which is provided. In my judgment although the tentacles of article 14 stretch to the field of higher education they do not, as a matter of course stretch to the funding for it. If the funding arrangements had been specifically designed to discriminate against a particular category of person that might have been another matter, for then the arrangements could be said to be necessarily concerned with the right to education. But that is not this case. The funding arrangements here are not within the right."
"... where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be regarded as discriminatory notwithstanding that it is not specifically aimed or directed at that group."
"51. Article 14 does not prohibit a Member State from treating groups differently in order to correct 'factual inequalities' between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.
52. The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."
(1) Is the subject matter of Mrs Sivills' disadvantage one of the modalities of the right guaranteed by Article 2 (see Petrovic paragraph 28)?
(2) Are the arrangements for registering social workers sufficiently closely related to the right guaranteed by Article 2? Alternatively, are those arrangements one stage removed from the education which is the subject matter of Article 2 (see Douglas at paragraphs 52 to 60)?
(3) Does the non-registration of Mrs Sivills as a social worker in any material way inhibit her enjoyment of the right guaranteed by Article 2 (see M at paragraphs 4 to 5)?
"No person shall be denied the right to education."
Lord Bingham observed in A v Head Teacher and Governors of Lord Grey School  UKHL 14;  2 WLR 690, that this guarantee was a weak one in comparison with most other guarantees within ECHR: see paragraph 24 of Lord Bingham's speech.
"(a) whether or not the judgment or order is final;
(b) whether an appeal lies from the judgment or order and, if so, to which appeal court;
(c) whether the court gives permission to appeal; and
(d) if not, the appropriate appeal court to which any further application for permission may be made."