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• 01 Nov 2024

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  Usually not. However, Article 2 of Protocol No 1 (Guidance here: Guide to Article 2 of Protocol No. 1 - Right to education) to the European Conventions on Human Rights (ECHR) provides that a person is entitled to education. When read together with Article 14 ECHR it provides a person a right not to be discriminated against in terms of their access to education. 

  A claim for a breach of these rights may be brought under s 7 of the Human Rights Act 1998, and, if the claim is successful, a court may order the payment of damages if it is necessary to afford “just satisfaction” (s 8(3) Human Rights Act 1998). 

  Such a breach may arise where the LA knows a CYP is not receiving education and fails to engage in any effectual attempts to provide it, as was the case in: E v LB Islington [2017] EWHC 1440 (Admin), para 156.

  Conversely where a child is out of school, but steps are being taken by the LA to provide education (even if the LA could have acted more expeditiously) this is unlikely to be a breach: A v Essex CC [2010] UKSC 33. Provision of interim education provision is also a relevant factor to consider. 

  In CB v LB Merton [2002] EWHC 877 (Admin) para 20 parents sought to argue that their and their child’s Article 8 ECHR right to a private and family life had been infringed on the basis that a residential placement had been named in the EHCP against their wishes. The court did not agree that Article 8 was engaged on the basis that naming this in the EHCP merely set out what provision the LA was offering. If the LA sought to compel attendance, this would have the potential of engaging article 8, but then the court would need to consider the compulsion was proportionate. 

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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