Removal From School Not a Breach of Human Rights

An autistic boy was not deprived of his right to an education, under the Human Rights Act 1998 (HRA), despite being kept out of school for some 18 months, according to a recent decision by the Supreme Court. According to the Court, the right to education, as established under the European Convention of Human Rights (ECHR), is a qualified, not an absolute, right. The HRA established the provisions of the ECHR into domestic law on the same basis.

The case concerned a boy who was aged 12 and 13 at the time in question. He was autistic, had serious learning difficulties and a severe communication disorder. His behaviour was challenging and he also suffered from epilepsy, resulting in 10 to 15 short seizures in a day, despite medication. He was doubly incontinent, had no concept of danger and required constant supervision. He was dependent upon adults for his every need.

In January 2002, the boy’s behaviour resulted in him being removed from school. From then until January 2003, he underwent a series of assessments and received some home support. His behaviour deteriorated further and his parents struggled to cope. During this time, various interdisciplinary panels recommended a residential placement. In January 2003, this was agreed with the boy’s parents and in February 2003, a suitable school offered him a place at an annual cost of £223,589. Essex County Council agreed to fund the placement but, in the event, the boy was unable to take up his place at that time because of building works at the school. He eventually started at the school in July of that year and he then progressed well. He remained a pupil there until 2008, at a total cost of over £1.2 million. It was accepted in court that the various delays between January 2002 and July 2003 had resulted in the boy not receiving a proper education.

The appeal centred on the parents’ claim that during this period their son had not received the minimum level of education required under the ECHR. However, the Court took the view that the Council was right to seek a long-term solution to the problem and, in the event, this proved to be ‘strikingly successful’. In such circumstances, a solution would take some considerable time to effect as it firstly had to be identified and then put in place. Once the preferred solution had been determined, however, the Council was quick to agree the cost and it was unfortunate that it had then taken a further six months for the school to make a place available.

The Court held that although the Council might be open to criticism for the level of education provided to the boy during the 18 months when he was not at school, this did not amount to a denial of his right to an education. As it was, the Council went to considerable trouble and expense to achieve an ultimately successful solution. For these reasons the appeal was dismissed.