Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Newton(a minor), Re Application for Judicial Review [2001] NIQB 1 (17 January 2001)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/1.html
Cite as: [2001] NIQB 1
[New search] [Printable RTF version] [Help]
Neutral Citation no. [2001] NIQB 1
Ref:
COGE3314
Judgment: approved by the Court for handing down
Delivered:
17.01.2001
(subject to editorial corrections)
COGHLIN J
The applicant in these proceedings, Joseph Newton, was born on 27 July 1989 and is currently a pupil at St John's Primary School, Bligh's Lane, Londonderry. The applicant was referred by his primary school to the Educational Psychology Service and, on 8 February 2000, he was seen by Ms Paula Heggarty, an educational psychologist. In a report dated 7 March 2000 Ms Heggarty expressed her conclusion that the applicant was a young boy whose ability lay within the "superior range" but that his literacy attainments were significantly delayed in relation to his ability. As a result of her interview with the applicant, Ms Heggarty concluded that, in addition, there were positive indicators highlighting a specific learning difficulty, namely, dyslexia. The applicant was due to and did sit the "Transfer Procedure tests" widely known within this jurisdiction as the "Qualifying Examination" in November 2000. On 19 June 2000 the applicant's mother wrote to Mr McGuinness, the Minister of Education in the Legislative Assembly, seeking an assurance that, as a result of his learning difficulties, special arrangements would be made for the applicant when sitting the Transfer Procedure tests. The applicant's mother specifically referred to the possibility of the applicant being granted an extension of time when sitting the Transfer Procedure tests upon the same basis that similar arrangements were made for candidates sitting GCSE or A-Level examinations. On 24 June 2000 Mr McLaughlin, writing on behalf of the Minister of Education, replied to the applicant's mother stating that the Department of Education was unable to make any special arrangements for candidates taking the Transfer Procedure tests and drawing to her attention the "special circumstances" procedure available to such candidates. It is this decision to refuse such special arrangements in relation to the Transfer Procedure tests that the applicant seeks to judicially review in these proceedings.
The applicant was represented by Mr Barry Macdonald QC and Mr Nash while Mr Weatherup QC and Mr Maguire appeared on behalf of the Department. I am indebted to both sets of counsel for the clear and concise manner in which they drafted their respective skeleton arguments and presented their oral submissions to the court.
In seeking relief on behalf of the applicant Mr Macdonald QC concentrated his submissions upon three principal grounds:
(1) That the decision by the Department of Education (the "Department") to refuse to afford the applicant extra time when sitting the Transfer Procedure tests to take account of his dyslexia was a violation of Article 14 and Article 2 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") in that the decision discriminated against the applicant within the ambit of his right to education. Mr Macdonald QC pointed out that Article 14 of the Convention prohibited 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 and, in the applicant's case, he submitted that the respondent Department had discriminated against the applicant on the basis of his status as a person suffering from a learning disability.
(2) Secondly, Mr Macdonald QC submitted that, in terms of domestic law, the decision to refuse the applicant "extra time", when routinely affording such a facility to pupils sitting GCSE and A-Level examinations, was so inconsistent and unjustified as to be irrational or perverse within the meaning of the principle set out in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.
(3) Finally, Mr Macdonald QC sought a declaration from the court, in accordance with the provisions of Section 4 of the Human Rights Act 1988, that Section 19(5) of the Disability Discrimination Act 1995 in disapplying the provisions of Sections 20 and 21 of that Act to education was incompatible with the applicant's rights guaranteed by Article 14 and Article 2 of Protocol 1 of the Convention.
The Nature of the Plaintiff's Disability
As I have already noted above, Ms Heggarty, the educational psychologist to whom the applicant was referred by his primary school, concluded that the applicant's ability lay within the superior range but that his literacy attainments were significantly delayed in relation to his ability and that there were positive indicators of dyslexia. The Department consulted the principal educational psychologist at the Belfast Education & Library Board, Mr Martin Clarke, who was furnished with a copy of the report provided by Ms Heggarty and who agreed that the applicant is a "very intelligent child" but whose literacy skills lie towards the lower end of the average range. Mr Clarke agreed that there was a risk that he might not be able to demonstrate his true levels of knowledge, skills and understanding in a written, timed test.
In the course of his submissions Mr Weatherup QC drew my attention to Section 1(1) of the Disability Discrimination Act 1995 which defines a person as having a disability if he has "a physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out normal day-to-day activities". Mr Weatherup QC also referred me to the guidance issued by the Department of Economic Development in Northern Ireland, in accordance with Section 3 of the Disability Discrimination Act 1995, on matters to be taken into account in determining questions relating to the definition of disability. Mr Weatherup QC drew my attention to Part II, page 4 of the guidance which defines a "substantial" effect as one which is more than "minor" or "trivial". He also noted that, at paragraph A8 the guidance referred to people who develop "coping" strategies for conditions such as dyslexia and that the relevant condition which was said to be covered by the statutory definition at page 11 paragraph C12 of the guidance was that of "severe dyslexia". Mr Weatherup QC framed his argument in relation to this aspect of the case in fairly simple terms by accepting that the applicant's disability was not "trivial", without conceding that it was "substantial", and arguing that, in such circumstances, it was "not obvious" that the applicant was disabled within the meaning of the 1995 Act.
Judicial review does not generally provide a very satisfactory procedure for the determination of disputed issues of fact but, for the purposes of this application, taking into account the submissions and the expert reports exhibited, I am satisfied that the applicant's learning disability does amount to a mental impairment which is more than "trivial" and, therefore, "substantial" which is likely to last at least 12 months and which adversely affects his ability to carry out the normal day-to-day activities of concentration, learning and understanding.
The Statutory Provisions and Relevant Guidance
Article 14 of the Education (Northern Ireland) Order 1997 applies to applications for the admission of a child to a grammar school and sub-Article (2) permits the Board of Governors of such a school to apply criteria to select children for admission where applications exceed the admissions number. Article 16 of the same Order requires Boards of Governors to draw up criteria to be applied when selecting children for admission to a school and sub-Article (9) enables regulations to be made specifying the content of such criteria. Regulation 4 of the Secondary Schools (Admissions Criteria) Regulations (Northern Ireland) 1997 details a number of matters which must be included in admission criteria. Sub-paragraph (d) of Regulation 4 provides as follows:
"Where a grammar school includes in its criteria the Transfer Procedure test grade achieved by children, a provision that, subject to Regulation 6 and to the consideration by the Board of Governors of medical or other problems which may have affected a child's performance in a Transfer Procedure test and which are supported by documentary evidence of a medical or other appropriate nature, -
a child who achieved the Transfer Procedure test Grade A shall be admitted in preference to a child with any other grade;
a child who achieved the Transfer Procedure test Grade B1 shall be admitted in preference to a child who achieved a Transfer Procedure test Grade B2, C1, C2 or D;
a child who achieved the Transfer Procedure test Grade B2 shall be admitted in preference to a child who achieved a Transfer Procedure test Grade C1, C2 or D;
a child who achieved the Transfer Procedure test Grade C1 shall be admitted in preference to a child who achieved a Transfer Procedure test Grade C2 or D;
a child who achieved the Transfer Procedure test Grade C2shall be admitted in preference to a child who achieved a Transfer Procedure test Grade D."
Article 15 of the Education (Northern Ireland) Order 1997 requires every Board to make arrangements for enabling the parents of a child to appeal against any decision made under Article 14 by a Board of Governors of a grant-aided school refusing the child admission to the school on the ground that the criteria drawn up under Article 16 were not applied or were not correctly applied. Article 15(8) of the 1997 Order provides that the Department shall by Regulations provide for the constitution and procedure of appeal tribunals. Decisions of appeal tribunals are subject to judicial review.
Part II of the Education (Northern Ireland) Order 1996 deals with the "special educational needs" of children with relevant learning difficulties. Article 15 of the 1996 Order sets out the circumstances under which a Board may arrange for the assessment of a child's special educational needs with a view to determining any special educational provision that may be required. It was in accordance with this scheme that the applicant's primary school arranged for him to be interviewed by Ms Heggarty but, in his case, no formal Statement of special education needs was made in accordance with the provisions of Article 16 of the 1996 Order.
The approach which Boards of Governors of grammar schools should take when considering applications for admission which raise "medical or other problems" within the meaning of Regulation 4(d) of the 1997 Regulations, the so-called "special circumstances" cases, has been the subject of detailed guidance directed to parents, primary and grammar schools as well as the relevant Boards of education.
In the case of the applicant the relevant Board is the Western Education & Library Board and the 2000 Edition of its guide for parents on "secondary education and changing schools at 11", at page 4 paragraph 5, refers to "claims that medical or other problems affected the child's performance in the Transfer Procedure tests". In this paragraph the guide points out that, when considering applications for places, the Board of Governors at a grammar school must (my underlining) firstly take into account any claims that medical or other problems may have affected a child's performance in the Transfer Procedure tests. If parents believe that such a claim is appropriate in the case of their child they should complete the relevant section of the Transfer Report Form and provide all necessary information in support of their claim. The guide advises parents that details of such a claim should appear on the Transfer Report Form to which should be attached any appropriate documentary evidence such as medical or social reports and a report from the primary school. The guide strongly recommends that parents should obtain the necessary information in support of their claim either at the time of the tests or well before the results of the tests are issued. The guide also informs parents that Boards of Governors of the grammar schools on receipt of the Transfer Report Form, together with any submission made by parents, educational information provided by the primary school and any other necessary information then decide whether or not the child should be re-graded. Page 25 of the guide confirms that the grammar school to which the applicant seeks admission, Lumen Christie College, conforms with this approach and records that:
"Applicants claiming that medical or other problems affected the performance of their child in the test(s) or who are claiming that their child should be treated under the Special Provisions Scheme as set out in Section 6 of the Board's booklet `Secondary Education and Changing Schools at 11' 2000 Edition will have their claims considered before the application of the Admissions Criteria. The Board of Governors will, on the basis of all the documents and evidence available to them at the time of making their decision, decide the grade to be used in the application of the Admissions Criteria to such applicants. Those who are deemed by the Board of Governors to be of equivalent ability to those awarded Grade A, or B1 or B2, or C1 or C2, or D will be treated on equal terms as those awarded such grades in the Transfer Procedure tests."
The Department also provides a guide and advice to parents on the transfer procedure which deal with the consideration of special circumstances applications.
On 7 March 1996 the Department wrote to Education & Library Board, the Council for Catholic Maintained Schools, the Principals of all Grammar Schools and schools with grammar streams providing advice on the consideration of special circumstances in the transfer procedure. This letter noted that the main points were:
"• Special circumstances cases must be considered before all other applications:
• Special circumstances relate to medical or other problems which may have affected a child's performance in a test:
• Special circumstances claims must be supported by documentary evidence of a medical or other appropriate nature:
• Each case should be examined on its merits to determine whether or not the child would have achieved a higher grade in the transfer tests if the special circumstances had not applied:
• If the school concludes that a child would have achieved a higher grade then the child should be considered along with the other applicants having that higher grade would in the normal application of the school's admissions criteria."
Further information was provided by way of Circular No. 2000/6 issued on 6 September 2000.
The Joint Council for General Qualifications provides Regulations and Guidance agreed jointly by the awarding bodies for various qualifications including, in particular, GCSE and A Levels. The awarding bodies recognise that some candidates may have coped with the learning demands of a course but the standard arrangements for assessment of their attainment may present a barrier. Such a barrier may exist, in particular, for candidates suffering from a permanent or long-term learning difficulty. In the case of such candidates special arrangements may be approved before an examination or assessment and these may include the granting of "additional time". The Regulations provide that an additional allowance of up to 25% of the total examination time should meet most needs but that, in exceptional cases, an allowance of more than 25% may be permitted with the prior approval of the awarding body. The current Regulations and Guidance relating to candidates with particular requirements specify that it is necessary to provide the following information in relation to candidates in respect of whom special arrangements have been requested owing to learning disabilities:
"• A description of the severity of the disability;
• Evidence of the extent to which the candidate was disadvantaged because of the disability;
• What special arrangements have been made to enable the candidate to overcome his or her disability in school/college work and assessment;
• Historical evidence of the disability. The candidates needs should have been recognised over a period of time and the arrangements proposed for the examination should reflect past and present need. If no previous arrangements have been made, you should consider very carefully whether arrangements are justified, and refer cases of doubt to the awarding body;
• Evidence derived from psychology assessment. Such evidence must include the information requested on the Psychology Assessment Report/Specialist Teacher's Assessment Report. Any assessment used as evidence must have been conducted by a psychologist or an appropriately qualified teacher and a report prepared within the 2 years prior to the examination."
In the introduction to the Regulations and Guidance relating to Candidates with Particular Requirements proposing to sit for examinations leading to GCE, VCE, GCSE and GNVQ published in respect of the period 1 September 2001 the Joint Council include among the range of special arrangements "Time Allowance". Paragraph 11 of the introduction provides that:
"Additional time may be allowed in timed components in most subjects, including English, Irish and Welsh. Additional time will not normally be permitted in examination components where performance of a task in a limited time is an assessment objective, or where a candidate's ability to demonstrate attainment in a subject is not affected by his or her special assessment need."
In her original letter to the Minister of Education of 19 June 2000 (dated 11 June 2000) the applicant's mother sought "extra time" for the applicant when sitting the 11-Plus examination by analogy with the extra time afforded to children taking examinations at GCSE, A-Level and university. "Extra time" was the only special circumstance advanced on behalf of the applicant during the course of the proceedings.
The Alleged Breach of the Applicant's Human Rights Under Article 2 of Protocol 1 and Article 14 of the Convention
The view that there should be a fundamental right relating to education was shared by those who framed the First Protocol to the Convention and such a right had already been recognised in the Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights. Furthermore, the preamble to the First Protocol referred to the signatories:
"… being resolved to take steps to ensure the collective enforcement of certain rights and freedoms other than those already included in Section 1 of the Convention …"
However, in practice, Article 2 proved unusually difficult to draft and, ultimately, the negative formulation was adopted which did not define the right to education that is not to be denied to any person apart from the reference to the duty of states, when providing education, to respect the religious and philosophical convictions of parents. Even so, a significant number of states attached reservations to their ratification of the First Protocol with the United Kingdom specifying that:
"The principle affirmed in the second sentence of Article 2 is accepted … only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure."
The text of this reservation has been recorded at Part II of Schedule 3 to the Human Rights Act 1998 and it is a "designated reservation" within the meaning of Section 15(1)(a) of that Act.
There is limited guidance in the Strasbourg case law on the affect of this provision and, for the purpose of these proceedings, perhaps the most significant decision is the Belgian Linguistic Case (No. 2) [1979-80] 1 EHRR 252. Despite the negative formulation of the provision, the court expressed the view that Article 2 did enshrine a "right" to education which was apparent from the language of the provision and the language of the preamble. The court noted that, at the time when the provision was drawn up, all the Member States already had a general and official educational system and that the aim of the Article was to guarantee to individuals the right, in principle, to avail themselves of the means of instruction existing at a given time. In addition, the court considered that Article 2 also guaranteed a right to be educated in the national language or one of the national languages and the right to obtain official recognition of completed studies. The court emphasised that these particular rights were not exhaustive of the more general "right to education" guaranteed by the first sentence of Article 2 but it also acknowledged that the right of access to education:
"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." (Page 281 of the judgment).
The court also pointed out that such regulation must not injure the substance of the right to education nor conflict with other Convention rights.
As I have already noted, in this case, Mr Macdonald QC submitted that, in failing to afford the applicant "extra time", the respondent subjected him to a significant disadvantage when sitting the Transfer Procedure tests thereby discriminating against him in relation to his right of access to education contrary to Article 14 and Article 2 of Protocol 1 of the Convention. Mr Macdonald QC argued that by subjecting the applicant, who suffered from a learning disability, to the same time restriction when sitting the examination as those candidates who did not suffer from such a disability the respondent was guilty of the type of indirect discrimination widely recognised both by the domestic courts and by the European Court of Justice. In support of his argument that such a form of discrimination has been accepted in the jurisprudence of the Strasbourg court Mr Macdonald QC relied upon the decisions in Marckx v Belgium [1980] 2 EHRR 330 and V.A.L.B. v Switzerland [1986] 49 DR 126. Mr Weatherup QC was not prepared to concede that "indirect discrimination" had been accepted as a valid concept in the Strasbourg jurisprudence, either generally or as a consequence of the decisions cited by Mr Macdonald QC. Mr Weatherup QC submitted that, to date, the court at Strasbourg had not attempted to come to terms with such a concept and he relied upon passages from "Law of the European Convention on Human Rights" by Messrs Harris, O'Boyle & Warbrick pages 478-479 and "Human Rights Law and Practice" by Lord Lester and David Pannick QC at page 229. The learned authors of "The Law of Human Rights", Richard Clayton and Hugh Tomlinson, at paragraph 17.90 state that:
"The question of whether Article 14 prohibits indirect discrimination has not been addressed by the court. However, it is strongly arguable that rules which are neutral on their face should be susceptible to challenge under the Convention if their impact is discriminatory. It should be noted, however, that in a number of cases involving allegations of `religious discrimination' the Commission has held that there is no discrimination if a law of general application has a disproportionate impact on a particular group. It is not clear whether the `indirect discrimination' points were specifically addressed in these cases which, it is submitted, are unlikely to be followed."
However, while this may be an issue of some interest, I do not think that it is necessary to resolve it in the course of these proceedings. Mr Macdonald QC, on behalf of the applicant, submitted that, in this case, the relevant "treatment", refusal to afford the applicant "extra time", could constitute either direct or indirect discrimination although, in his view, the latter was a more "comfortable fit". In any event, it seems to me that the principles to be considered by the court in relation to the Article 14 claim are reasonably clear.
In the Belgian Linguistic Case the court rejected as "absurd" the argument that every difference of treatment in the exercise of Convention rights amounted to discrimination. It recognised the existence of a wide variety of national, legislative and administrative regimes based on differential treatment which could well be seen to be for good reason. In attempting to formulate a distinction between permissible differentiation and unlawful discrimination the court said, at p284:
"It is important … to look for the criteria which enable a determination to be made as to whether or not the given difference in treatment, concerning of course the exercise of one of the rights of freedoms set forth, contravenes Article 14. On this question the court, following the principles which may be extracted from the legal practice of a large number of democratic states, holds that the principle of equality of treatment is violated if the distinction has no reasonable and objective justification. The existence of such justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised."
At page 293 of the judgment the court specifically observed that:
"Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention."
It seems to me that the judgment in the Belgian Linguistics' case together with the subsequent jurisprudence of the Strasbourg court suggest that the following matters need to be taken into account when considering whether there has been a violation of Article 14:
(1) Whether the applicant has been subjected to an adverse or unfavourable difference of treatment in comparison to other persons in an analogous or relevantly similar situation and, if so;
(2) Whether that difference of treatment falls within the ambit of another Convention right and, if so;
(3) Whether the relevant public authority has established a rational aim behind the differentiation and, if so;
(4) Whether the difference in treatment is proportional to the aim pursued in so far as it fulfils the need to strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.
The first of these considerations depends upon the resolution of essentially factual issues and, as I have already noted, judicial review does not offer the best forum for the determination of such issues. Furthermore, it is important to bear in mind that these proceedings are not concerned with the merits or structure, including the time constraints, of the Transfer Procedure tests or Qualifying Examination.
Upon reviewing the affidavit evidence I am not satisfied, on the balance of probabilities, that candidates sitting for the 11-Plus examination are in an analogous or relevantly similar situation to those undergoing examinations leading to GCSE, A-Levels and similar qualifications. As Dr Mark Browne records in his affidavit of 7 November 2000 the Transfer Procedure tests are a direct competition between candidates for a limited number of grammar school places. Invariably there are more applicants than available places and the sole object of the tests are to provide information for grammar schools to assist them in selecting pupils for admission. There are two tests, each of one hour's duration, with a total of 75 marks available for each test. English and Mathematics each carry 26 marks and 23 marks are allocated to Science and Technology. The raw scores are added together but the number of candidates who are able to obtain the relevant grades are strictly limited in percentage terms with 25% being awarded grade A, the next 5% grade B1, the next 5% grade B2, the next 5% grade C1, the next 5% grade C2 and the remainder grade D. Thus, the grades obtained by candidates do not relate to their attainment in absolute terms but are relative to the other candidates taking the test and a given level of attainment may be sufficient to merit one grade in a particular year but not in a different year. By contrast the standard required to obtain each grade at GCSE and other examinations taken after the age of 16 is specified in advance and there is no pre-determined limit to the proportion of candidates who can obtain a particular grade. In commenting upon paragraphs 16 and 18 of Dr Browne's affidavit Mr Fee, an Educational Psychologist who lodged an affidavit on behalf of the applicant, in his letter of 6 November 2000, appreciated the difference between the two forms of examination and expressed some criticism of the "basic weaknesses" of the transfer test. He agreed that, as currently constituted, the Department's insistence on time constraint made it difficult to operate the more flexible arrangements available for GCSE in relation to the transfer test.
The respondent sought the opinion of Mr Martin J Clarke, Principal Educational Psychologist, Belfast Education & Library Board upon the issues raised by Mr Fee. At paragraphs 10 and 11 of his report of 20 November 2000 Mr Clarke referred to the "huge difference" between the two types of examination concerned and emphasised that, in a competitive examination, such as the transfer test, the grade that a child achieves is not solely dependant upon his or her own efforts but upon how he or she performs in relation to the other candidates. This he contrasted with "non-competitive" examinations such as GCSE or A-Level in which the grade obtained is determined by the student's efforts. The nature of the transfer test throws into much sharper relief the rights of the other candidates to access to education as well as those of the applicant. It seems to me that this is a fundamental distinction which could well require a different approach to be adopted with regard to candidates suffering from a learning disability, such as dyslexia.
In addition, even if it had been established that the examination situations were "analogous or relatively similar" I am not satisfied, again on the balance of probabilities, that the applicant has been the subject of adverse or less favourable treatment. The relevant comparison is between affording "extra time" to candidates for GCSE, A-Levels, etc and not affording extra time but instituting the "special circumstances" procedure available for those undergoing the 11-Plus examination. On behalf of the applicant Mr Macdonald QC submitted that allowing "extra time" was a "simple matter", that it was an arrangement which parents would accept was "objective" and that it was supported by expert evidence in the form of a report either from an educational psychologist or from a specially qualified teacher. Mr Macdonald QC condemned the "special circumstances" procedure as being an "ex gratia" exercise of the discretion of the Boards of Governors of the grammar schools. In my view, it is clear from paragraphs 6 to 11 of Mr Clarke's report of 20 November 2000 that the awarding of "extra time" is neither simple nor necessarily objective. While the Boards of Governors of the grammar schools do retain a discretion it is clear from the statutory provisions and regulations which I have outlined above that it is a regulated discretion and one which may be the subject of appeal and, ultimately, judicial review. Much of the substance of the respective reports from Mr Fee and Mr Clarke is concerned with criticism and defence of the respective procedures but it is important to bear in mind the repeated admonition by the Strasbourg court that human rights cases should be considered in relation to the individual applicant and not as a "hypothetical" or "academic" debate. It was common case between the parties to these proceedings that there is no educational selection system which will "guarantee" the appropriate placement of the applicant. However, neither Mr Fee nor Mr Eakin have advanced the opinion that allowing the applicant 25% additional time would represent fairer or more favourable treatment of the applicant as compared to the "special circumstances" procedure. Mr Clarke has referred to the provision of extra time for candidates with dyslexia as being a very "crude and imprecise system". In concluding his opinion of 20 November 2000 Mr Clarke, referring to the "special circumstances" procedure, expressed the following view:
"It is not a perfect procedure but it is more likely to result in fair and just outcomes for all children, both dyslexic and non-dyslexic, than a procedure which is based on the allocation of extra time or extra marks. In the particular case of Joseph, I would not be at all surprised if he gains a grade A in the transfer test. If he does not however, I am very confident that the special circumstances procedure, with the option of appeal, would result in him being treated as an A grade pupil. I would not be similarly confident that a fair outcome for Joseph would be achieved by a system which depends on the provision of extra time or extra marks."
As a result of the views which I have formed that there is no analogy or relevant similarity between the comparisons sought to be made and that no less favourable treatment has been established I do not consider that the applicant has made out any breach of Articles 14 and Article 2 of the First Protocol of the Convention. In such circumstances, it is not necessary to express any further opinion as to justification or the margin of appreciation upon which Mr Weatherup QC sought to rely.
The Submission that a Decision to Refuse Extra Time to the Applicant was Irrational and Therefore Unlawful
Under this heading Mr Macdonald QC sought to establish that the decision by the Department to refuse extra time to the applicant when sitting the 11-Plus examination was unlawful in that it offended against the principles set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 and the subsequent well known line of authority. One of the most recent re-affirmations of the relevant test appears in the judgment of Aldous LJ in R v Radio Authority ex parte Bull & Another [1997] 2 All ER 561 when he said, at page 577:
"The standard to be applied, as explained by Lord Diplock in the Council of Civil Service Unions case, was – is the decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it? Judicial review is not a forum for speculation or opinion as to whether a decision was right or wrong. To be quashed it has to be totally unreasonable; outrageous in its defiance of logic."
In refusing to allow the applicant extra time for the purpose of sitting the Transfer Procedure tests I am satisfied that the respondent took into account and was entitled to take into account not only the nature and extent of his disability but also the fundamental distinction between that examination and those examinations such as GCSE, A-Level, etc recognising that, as a candidate for the former, the applicant could take advantage of the special circumstances procedure. Unlike the provision of extra time, the special circumstances procedure provides an opportunity to take into account the applicant's learning disability without prejudice to the chances of other candidates not so affected. Taking into account the evidence, together with the helpful submissions of counsel, I am quite satisfied that this represented a legitimate, fair and reasonable decision in the circumstances and, accordingly, I reject this submission.
The Incompatibility of Section 19(5) of the Disability Discrimination Act 1995
The applicant sought a declaration of incompatibility in accordance with Article 4 of the Human Rights Act 1998. Section 4(2) of the Human Rights Act 1998 provides that the court may make a declaration of incompatibility if it is satisfied that a provision of primary legislation is incompatible with a Convention right. In his original skeleton argument Mr Macdonald QC submitted that Section 19(5) of the Disability Discrimination Act 1995 was incompatible with Article 14 and Article 2 of the First Protocol to the Convention. However, during the course of his closing submissions, Mr Macdonald QC accepted that the applicant had not been inhibited by any provision of the 1995 Act from relying on any of the provisions of the Human Rights Act 1998 or of the Convention. In the circumstances, I do not propose to make a declaration of incompatibility.
Mr Macdonald QC did submit that Article 19(5) did prevent the applicant from relying on the provisions of Section 20 and 21 of the 1995 Act. While it is not strictly necessary for me to do so, in the circumstances of this particular case I would not have been prepared to accept that the respondent had discriminated against the applicant in accordance with Section 20(1) of the 1995 Act. Nor would I have been persuaded that, in breach of Section 21 of the 1995 Act, the respondent had made it "impossible or unreasonably difficult" for the applicant to fairly compete in the 11-Plus examination. Consequently I would not have been prepared to hold that the effect of Section 19(5) of the 1995 Act was to permit discrimination against the applicant as a disabled person.
In the circumstances, the application must be refused.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND