A Uniform Approach To Education

Does the right to an education under the Human Rights Act 1998 open up a new route to compensation?

The recent case of A (Appellant) v Essex County Council (2010) examined the value of the "right to education" under the Human Rights Act 1998. To what extent must a local authority provide all children with an effective education, and can it take into account their special needs and the demands on resources?

Background facts

"A", now in his early twenties, is severely autistic, suffers from epilepsy and has severe learning difficulties. As a child, he attended a community special day school maintained by Essex CC known in the litigation as LS School. In May 2001, when he was aged 12, A's teachers expressed concern about his behaviour and the school's ability to deal with him. A would self harm, was doubly incontinent, would suffer regular epileptic fits, had no concept of danger and required constant supervision.

By January 2002, A's behaviour had deteriorated to the point where LS School could no longer cope with him, and his parents were asked not to take him into school for health and safety reasons. The intention of all the professionals concerned, including LS School, was for A to receive an urgent medical assessment at the National Centre for Young People with Epilepsy at St Piers.

Unfortunately, the assessment could not take place until September 2002. In the meantime, LS School sent work and activities for A to do with his parents at home and provided him with some weekly speech and language therapy sessions. It was acknowledged that A's educational needs were not being met during this time, but neither Essex CC nor LS School were able to provide a home tutor who was qualified or able to meet A's needs.

The September assessment recommended that A should be placed in a 24 hour residential school for children with challenging behaviour. Between October and December 2002, Essex CC wrote to 26 schools seeking a placement for A, but without success.

At a meeting in 2003, professionals acknowledged that his home environment was having a negative impact on A's behaviour because he remained under-stimulated and bored and needed to be supported appropriately. In January 2003, A started to receive respite sessions three mornings a week at the Limbourne Centre, where he was also offered tuition. However, the Limbourne Centre also had difficulties with A and felt they were minding him, rather than teaching him.

In February 2003, Kisimul School...