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• 14 Feb 2022

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  No. ECHR Article 2 Protocol 1: 

  “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.”

  A breach by a public body of A2P1 can give rise to a claim in damages pursuant to the Human Rights Act 1998 section 8.

  The right is to effective access, without discrimination, to whatever educational facilities the state provided. A child with SEN was not denied that right unless the child was denied access to whatever educational facilities the state provided for such pupils. Where a child was out of school, but steps were being taken by the LA to provide him with high quality education (albeit the LA could have acted more expeditiously) that was not a breach; but a failure to provide interim educational assistance could have been a breach. In any event damages would be low or non-existent: A v Essex CC [2010] UKSC 33.

  However, where an LA with responsibility for providing education, if it knew a pupil was not receiving it and engaged in a completely ineffectual attempt to provide it, would be in breach of A2P1. HRA damages were payable for any loss shown to be directly attributable to Islington’s unlawful conduct. This was a “salutary reminder to all local education authorities [sic] and their staff that in performing their day-to-day functions they are discharging the United Kingdom’s obligations under the Convention”: E v LB Islington [2017] EWHC 1440 (Admin)#156.

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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