Sivills, R (on the application of) v General Social Care Council [2007] EWHC 2576 (Admin)

CO/10144/2006 and CO/4341/2006[2007] EWHC 2576 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 8th October 2007
Strand
London WC2
B E F O R E:
MR JUSTICE JACKSON
THE QUEEN ON THE APPLICATION OF JANET SIVILLS
Claimant
-v-
GENERAL SOCIAL CARE COUNCIL
Defendant
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Ms Natalie Lieven QC (instructed by Messrs Bates Wells & Braithwaite, London EC4M 0YH) appeared on behalf of the Claimant
Ms Monica Carss-Frisk QC (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
JUDGMENT
Between
Sivills, R (on the application of)ClaimantGeneral Social Care CouncilDefendant
[1]These are two sets of proceedings concerning the registration of a social worker. The first proceedings comprise an appeal against a decision of the Care Standards Tribunal. The second proceedings comprise a claim for judicial review of a decision reached by that Tribunal. Mrs Janet Sivills is appellant in the first proceedings and claimant in the second proceedings. I shall refer to her as "Mrs Sivills".[2]The General Social Care Council is respondent in the first proceedings and defendant in the second proceedings. I shall refer to that body as "the GSCC". Mrs Sivills is currently employed by the Children and Family Court Advisory Support Service. This body is generally referred to as "CAFCASS", and I shall adopt that abbreviation.[3]The statute under which the GSCC has been established is the Care Standards Act 2000, to which I shall refer as "the 2000 Act". The predecessor body which existed before the 2000 Act came into force was the Central Council for Education and Training in Social Work.[4]Section 56 of the 2000 Act requires the GSCC to maintain a register of social workers and social care workers. Section 57(1) of the 2000 Act provides:
" An application for registration under this Part shall be made to the Council in accordance with rules made by it."
[5]Section 58 of the 2000 Act provides:
"(1) If the Council is satisfied that the applicant— (a) is of good character; (b) is physically and mentally fit to perform the whole or part of the work of persons registered in any part of the register to which his application relates; and (c) satisfies the following conditions, it shall grant the application, either unconditionally or subject to such conditions as it thinks fit; and in any other case it shall refuse it. (2) The first condition is that— (a) in the case of an applicant for registration as a social worker— (i) he has successfully completed a course approved by the Council under section 63 for persons wishing to become social workers; (ii) he satisfies the requirements of section 64; or (iii) he satisfies any requirements as to training which the Council may by rules impose in relation to social workers; (b) in the case of an applicant for registration as a social care worker of any other description, he satisfies any requirements as to training which the Council may by rules impose in relation to social care workers of that description. (3) The second condition is that the applicant satisfies any requirements as to conduct and competence which the Council may by rules impose."
[6]Section 60 of the 2000 Act enables the GSCC to make rules about registration.[7]Section 63 of the 2000 Act enables the GSCC to approve courses in relevant social work for persons who are or wish to become social workers. Section 63(3) sets out in some detail what the rules may provide in respect of courses for social workers, and section 63(4) empowers the GSCC to make rules concerning examinations and so forth in connection with those courses. Section 63(7) provides that the GSCC shall from time to time publish a list of the courses which are approved under this section.[8]Section 64(1) of the 2000 Act provides:
"(1) An applicant for registration as a social worker in the register maintained by the English Council satisfies the requirements of this section if— (a) being a national of any EEA State— (i) he has professional qualifications, obtained in an EEA State other than the United Kingdom, which the Secretary of State has by order designated as having Community equivalence for the purposes of such registration; and (ii) he satisfies any other requirements which the Council may by rules impose; or (b) he has, elsewhere than in England, undergone training in relevant social work and either— (i) that training is recognised by the Council as being to a standard sufficient for such registration; or (ii) it is not so recognised, but the applicant has undergone in England or elsewhere such additional training as the Council may require."
[9]Section 68 of the 2000 Act enables applicants for registration to appeal to the Care Standards Tribunal against a decision of the GSCC concerning registration.[10]Pursuant to the provisions of the 2000 Act the GSCC made the General Social Care Council (Registration) Rules 2005, to which I shall refer as "the 2005 Rules". Rule 4 of the 2005 Rules sets out the procedure for registration. Rule 4(10) of the 2005 Rules provides:
"The Council shall grant an application for registration if — (a) it is satisfied as to the applicant's good character and conduct; and (b) it is satisfied as to the applicant's physical and mental fitness to perform the whole or part of the work of a social worker or social care worker; and (c) where the applicant is a social worker, it is satisfied that (i) the applicant's competence is such as to make that applicant suitable to perform the work of a social worker; and (ii) the applicant has — (aa) successfully completed a course approved by the Council under section 63 of the Act, (bb) successfully completed a course or possesses a certificate or similar documentation, as set out in SCHEDULE 1 to these Rules, or (cc) the applicant has successfully completed a course for persons wishing to become social workers approved by a Care Council under section 10 of the Health and Personal Social Services Act (Northern Ireland) 2001, section 54(1) of the Regulation of Care (Scotland) Act 2001 or section 63 of the Care Standards Act 2000; or (iii) the applicant has outside the United Kingdom, undergone training in relevant social work, which is either (aa) recognised by the Council as being of a standard sufficient for registration, or (bb) is not so recognised, but the applicant has undergone such additional training as may be required by the Council ..."
[11]Schedule 1 to the 2005 Rules provides:
"The following social work degree courses were courses approved by the Council for the purposes of Section 63 of the Act at the date of the making of these Rules: All social work degree courses currently approved under the General Social Care Council Approval of Courses for the Social Work Degree Rules 2002. The following university qualifications obtained prior to 1971 shall be regarded by the Council as evidence of training for the purposes of Section 58(2)(a)(iii) of the Act: ..."
There then follows a list of university qualifications and university courses which spans some four pages.[12]I then continue to read from Schedule 1:
"Holders of the following certificates, letters or other evidence of training shall also be regarded by the Council as having completed training for the purposes of Section 58(2)(a)(iii) of the Act: Certificate in Child Care issued by the Home Office Central Training Council from 1947 to 1971. Home Office Letter of Recognition in Child Care issued by the Home Office Central Training Council in Child Care from 1947 to 1971. Certificate in Social Work issued by the Council for Training in Social Work from 1962 to 1971. Probation Certificate issued by the Recruitment and Training Committee of the Advisory Council for Probation and After Care until 1971. Certificate or other evidence of completion of a course recognised until 1971 by the Recruitment and Training Committee of the Advisory Council for Probation and After Care. Certificate issued by the Institute of Medical Social Workers (previously the Institute of Almoners). Certificate or other evidence of completion of a course recognised by the Institute of Medical Social Workers (previously the Institute of Almoners). Certificate or other evidence of completion of a course recognised by the Association of Psychiatric Social Workers. Certificate of Qualification in Social Work issued by the Central Council for Education and Training in Social work from 1971 to 2002. Letter of Comparability to the Certificate of Qualification in Social Work issued by the Central Council for Education and Training in Social Work until 1990. Certificate in Social Service issued by the Central Council for Education and Training in Social Work from 1975 to 1995. Diploma in Social Work issued by either the Central Council for Education and Training in Social Work or the Council from 1991 onwards."
[13]It is clear from the evidence filed by the GSCC that the GSCC has considered all relevant courses and qualifications which are or were available in the United Kingdom. The GSCC has included in Schedule 1 those which it assessed as appropriate. The GSCC has excluded from Schedule 1 those which it regarded as inappropriate.[14]Since the present case raises human rights issues, I shall use familiar abbreviations in the course of this judgment. I shall refer to the European Convention on Human Rights as "ECHR". I shall refer to the European Court of Human Rights as "the Strasbourg Court".[15]Article 14 of ECHR provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without 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."
I shall refer to this provision as "Article 14".[16]Article 2 of the First Protocol to ECHR provides:
"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."
I shall refer to this provision as "Article 2".[17]After these introductory remarks, it is now time to turn to the facts.

Part 2: The facts

[18]Mrs Sivills is a lady approaching the age of 60 who has made her career in various forms of social work. Mrs Sivills has spent periods of time as a probation officer, a youth leader, a court welfare officer and so forth. She is currently employed by CAFCASS as a family court adviser in the High Court team in London.[19]Before embarking on her career, Mrs Sivills attended Bristol University where she obtained a law degree. In 1972 Mr Sivills applied to the London School of Economics to do a one-year postgraduate social work training course. I shall refer to this as "the LSE course". Mrs Sivills was invited for interview at the LSE, but did not pursue the matter. This was because the Probation Service were offering Mrs Sivills what was known as "direct entry". Mrs Sivills accepted that offer. She was given immediate employment on condition that she undertook a national training course for graduates arranged by the Probation Service. This entailed attending two residential courses at Birmingham University, each lasting a month. It also entailed attending training meetings at a probation office and a residential placement in a borstal. I shall refer to this course compendiously as "the Birmingham course".[20]The Birmingham course covered the following subjects:(a) introduction to casework;(b) human growth and development;(c) child development (with special reference to Piaget);(d) sociology theory;(e) social work values and ethics;(f) communication skills (especially focusing on written reports);(g) Mental Health Act 1959;(h) the effects of institutionalisation;(i) psychoanalytical theory with special reference to marital interaction;(j) interviewing/counselling skills;(k) criminology;(l) groupwork theory and practice;(m) Children and Young Persons Act 1969.[21]At the end of the Birmingham course, Mrs Sivills was confirmed as a probation officer. Soon afterwards she was upgraded to grade B.[22]During the 1970s, the 1980s, the 1990s and this decade, Mrs Sivills has attended a variety of training courses relevant to the work which she was doing. Mrs Sivills commenced her present employment with CAFCASS in April 2001. Because Mrs Sivills is now dealing with public law cases concerning children, it has become highly desirable that she should become a registered social worker. Accordingly, in 2005 Mrs Sivills applied to the GSCC for registration as a social worker on the social care register. Her application was supported by her employers and was accompanied by glowing references. Nevertheless, both Mrs Sivills and CAFCASS were concerned that the application might be rejected. The reason for this fear was that none of the courses which Mrs Sivills had undertaken and none of the qualifications which she had obtained featured in Schedule 1 to the 2005 Rules.[23]Mr Anthony Douglas, the Chief Executive of CAFCASS, sent two letters to the GSCC in support of Mrs Sivills' application. The first letter was dated 21st June 2005 and dealt with shortcomings in the 2005 Rules as he perceived them. In the first part of that letter, Mr Douglas wrote as follows:
"I write to express our concerns in relation to those small numbers of Family Court Advisors who undertook an extensive probation route into social work and qualified in the years 1973 to 1975, and who are now unable to register under the specified social work category. I would like to highlight the extensive range of training and development these staff members went through in order to qualify."
Mr Douglas then sets out in his letter what the training of these people involved. Mr Douglas goes on to say that their training was thorough and covered all aspects of the social work rule.[24]Mr Douglas went on to argue in that letter that the training which those individuals had received was rigorous, and that in his view such training ought to qualify persons to become registered as social workers. Mr Douglas maintained that the Schedule to the 2005 Rules (or their predecessors) was unsatisfactory in that regard.[25]Mr Douglas' second letter was dated 21st July 2005 and it dealt with the qualities of Mrs Sivills. Mr Douglas described the excellence of her work and her general suitability to be registered as a social worker.[26]On 11th August 2005 the Registration Committee of the GSCC met to consider Mrs Sivills' application. The Committee decided to refuse Mrs Sivills' application. The Committee also decided that Mrs Sivills should not be allowed to give oral evidence in support of her application. The reasons given by the Committee for its decision read as follows:
"a) The Care Standards Act 2000 and the General Social Care Council (Registration) Rules 2005 ('the Rules') specify the qualifications required for registration and in your case specifically Schedule 1 of the Rules. The Committee has no discretion to register you if you do not have a qualification which is listed in Schedule 1. b) You referred to the case of C R Blanchard -v- General Social Care Council (Care Standards Tribunal 10 March 2005) and the Committee considered this. The Committee noted from that case that while an Applicant may have a dispute with the qualifications listed in Schedule 1, neither the Care Standards Tribunal (nor by implication the Committee) has the power to revise Schedule 1. c) The Committee noted the duration and quality of your experience. Nevertheless, as you acknowledged in your written submissions you do not possess a qualification listed in Schedule 1 and the Committee were therefore unable to grant registration. d) In relation to your application to [make] oral submissions, the Committee considered the case of D H -v- General Social Care Council (Care Standards Tribunal 14 June 2005). The Committee noted from that case, that 'the presumption should be in favour of allowing oral submissions, save when there is good reason not to'. Given that the Committee's powers are limited as set out above, the Committee regretfully concluded that nothing you could say in oral submissions would alter the Committee's powers. The Committee concluded that this was a good reason not to grant your application to make oral submissions."
[27]By a notice of appeal dated 12th September 2005, Mrs Sivills gave notice of appeal to the Care Standards Tribunal against the decision of the Registration Committee. In her grounds of appeal Mrs Sivills maintained that the various qualifications which she had obtained satisfied the requirements of the 2005 Rules.[28]The Care Standards Tribunal convened on 6th April 2006 to hear Mrs Sivills' appeal. Both Mrs Sivills and the GSCC were represented by counsel and the matter was fully argued. The Tribunal rejected the interpretation of the 2005 Rules which was put forward on behalf of Mrs Sivills. The Tribunal concluded that the courses undertaken and qualifications obtained by Mrs Sivills did not fall within Schedule 1 to the 2005 Rules. Accordingly, the Tribunal dismissed Mrs Sivills' appeal.[29]Towards the end of its decision, the Tribunal commented as follows in paragraph 43:
"The Tribunal found it surprising that a person with the qualifications and experience of the Applicant falls outside the definition of a 'social worker'. The Tribunal also felt some concern that those with qualifications from overseas that are not listed in Schedule 1 are given the opportunity to persuade the Council that they have equivalent qualifications but those with domestic qualifications that are not listed in Schedule 1 are not given the same opportunity. However, the Tribunal was satisfied that the relevant Rules exclude the Applicant and do not give her the opportunity to argue for discretionary inclusion."
[30]Mrs Sivills was aggrieved by the decision of the Care Standards Tribunal. Accordingly, she commenced the present proceedings.

Part 3: The present proceedings

[31]By an appellant's notice issued on 25th May 2006, Mrs Sivills appealed to the Administrative Court against the decision of the Care Standards Tribunal. She put forward three grounds of appeal. The first ground was that the Tribunal had erred in its construction of Rule 4(10)(c)(ii)(bb) of the 2005 Rules. On its true construction, that Rule permitted the registration of persons with qualifications which were similar or equivalent to those set out in Schedule 1. The second ground alleged that if the Tribunal was correct in its reading of the Rule, then this gave rise to a breach of Article 14 of ECHR. I need not summarise the third ground of appeal because that is no longer pursued.[32]The GSCC was named as respondent to the appeal. The GSCC applied to strike out the second ground of appeal on the basis that that ground had not been put to the Tribunal. This application was successful. Thus Mrs Sivills' appeal against the Tribunal's decision is proceeding on the first ground only, namely the interpretation issue.[33]In order to pursue the grounds of challenge which had been struck out from the appellant's notice, Mrs Sivills issued judicial review proceedings against the GSCC. In these proceedings Mrs Sivills contended in her claim form that Rule 4(10)(c) of the 2005 Rules was contrary to Article 14 of ECHR when that Article is read in conjunction with Article 2 of the First Protocol.[34]Mitting J granted permission for the judicial review proceedings to go forward. Both the appeal and the judicial review claim were listed for hearing on Friday 5th October. That hearing duly took place and lasted all day. I said that I would consider counsel's submissions over the weekend and give judgment on Monday morning, 8th October. This I now do.[35]I shall first address the appeal on the construction point. I shall then address the human rights claim.

Part 4: The appeal on the construction point

[36]Ms Natalie Lieven QC for Mrs Sivills draws attention to the phrase "or similar documentation" in Rule 4(10)(c)(ii)(bb). She submits that this enables the GSCC to accept qualifications which are similar to those set out in Schedule 1.[37]Ms Lieven also draws attention to the phrase "shall be regarded by the Council as evidence of training" in the third paragraph of Schedule 1 to the 2005 Rules. She submits that this indicates that Schedule 1 is not exhaustive. Ms Lieven further submits that the following phrase, which occurs later in Schedule 1, gives the same indication:
"Holders of the following certificates, letters or other evidence of training shall also be regarded by the Council ..."
[38]Ms Lieven goes on to argue that her construction of Rule 4(10)(c)(ii)(bb) and Schedule 1 fits with the broad language of section 58(2) of the 2000 Act. That subsection gives the GSCC a discretion as to what training requirements to impose.[39]Ms Monica Carss-Frisk QC, who appears for the GSCC, accepts that section 58(2)(a)(iii) of the 2000 Act is a broad rule-making power. Nevertheless, submits Ms Carss-Frisk, the rules as drafted do not give the Registration Committee any discretion to accept courses or qualifications which are similar to those listed in Schedule 1. The Registration Committee can only accept courses or qualifications which are actually listed in Schedule 1.[40]I have read and reread the Rules which are under debate between counsel. It must be admitted that they are somewhat convoluted. Nevertheless, on a careful reading the meaning of those Rules is clear. The first two paragraphs of Schedule 1 identify the degree courses which fall within section 58(2)(a)(i) of the 2000 Act. These two paragraphs marry up with Rule 4(10)(c)(ii)(aa). The next section of Schedule 1 marries up with Rule 4(10)(c)(ii)(bb). It is a list of university qualifications which would satisfy the requirements of section 58(2)(a)(iii) of the 2000 Act. Amongst these qualifications is the diploma in social work which Mrs Sivills would have obtained if she had done the LSE course in 1972 to 1973. The last part of Schedule 1 is a list of certificates, letters and other documentary evidence which are issued at the end of 12 identified training programmes. The GSCC takes the view that any one of these programmes would suffice for the training of a registered social worker. The phrase "or similar documentation" in Rule 4(10)(c)(ii)(bb) is a reference to the fact that many of the courses identified in Schedule 1 do not lead to a certificate. Instead, candidates who satisfactorily complete those courses receive some form of document which is similar in function to a certificate, for example a letter of comparability.[41]Let me now look at the language used in Schedule 1. The phrase "evidence of training" in the third paragraph of Schedule 1 denotes that the listed university qualifications satisfy the training requirements identified in section 58(2)(a)(iii) of the 2000 Act. That phrase does not denote or imply that any other university qualifications might satisfy those training requirements.[42]I move on now to the last part of Schedule 1. The phrase "or other evidence of training" is used as a catch-all phrase to encompass the wide variety of documentation given to persons who complete the 12 training programmes listed on the last page of Schedule 1. The phrase "or other evidence of training" does not denote or imply that evidence of completing some other training course (different from those identified in Schedule 1) might satisfy the requirements set out in section 58(2)(a)(iii) of the 2000 Act.[43]Let me now draw the threads together. For the reasons set out above, I reject the interpretation of Rule 4(10)(c)(ii)(bb) and of Schedule 1 which is urged on behalf of Mrs Sivills. Properly construed, the 2000 Rules contain a comprehensive list of university qualifications and training courses in the United Kingdom which satisfy the training requirements identified in section 58(2)(a)(iii) of the 2000 Act. Any United Kingdom applicant who has obtained one of those university qualifications or completed one of those training courses satisfies the training requirements of the Act. Any United Kingdom applicant who has not obtained one of those qualifications or completed one of those training courses does not satisfy the training requirements of the Act.[44]Let me now return to the facts of the present case. Mrs Sivills, despite her impressive CV and her excellent service over the years, had not at the time of the Tribunal's decision obtained one of the university qualifications listed in Schedule 1, nor had Mrs Sivills undertaken one of the training programmes listed at the end of Schedule 1. Accordingly, the Registration Committee had no choice but to dismiss Mrs Sivills' application for registration. Similarly, the Care Standards Tribunal had no choice but to dismiss Mrs Sivills' appeal. It follows from the foregoing that the Care Standards Tribunal made no error in its construction of the 2005 Act. Mrs Sivills' appeal on the construction point is dismissed.

Part 5: The human rights claim

[45]The human rights claim, which Mrs Sivills makes in the judicial review proceedings, may be summarised as follows:(1) Mrs Sivills' claim to be registered as a social worker falls within the ambit of Article 2 (right to education). Such registration is a benefit which Mrs Sivills is entitled to gain from her education.(2) Under the 2005 Rules, there is discrimination on grounds of nationality or other status between Mrs Sivills and persons who have gained their social work training outside the United Kingdom. This is because, under Rule 4(10)(c)(iii)(aa), persons from outside the United Kingdom are entitled to present evidence of their training to the GSCC, and seek to persuade the GSCC that such training is of a standard sufficient for registration. Under the 2005 Rules Mrs Sivills has no such right.(3) That discrimination is unjustified, therefore it constitutes a breach of Article 14.[46]Before I address these three propositions, let me first review the authorities which counsel have cited. In Belgian Linguistics (No 2) (1968) 1 EHRR 252, a number of French-speaking parents complained that Belgian legislation concerning the language of education in schools infringed their rights under Article 2 of the First Protocol and under Article 14 of ECHR. The details of that case are not material for present purposes. I should, however, cite two passages from the judgment of the Strasbourg Court. In relation to Article 2 of the First Protocol, the court said this at pages 280 to 281:
"3. By the terms of the first sentence of this Article, 'no person shall be denied the right to education'. In spite of its negative formulation, this provision uses the term 'right' and speaks of a 'right to education'. Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of 'rights and freedoms'. There is therefore no doubt that Article 2 does enshrine a right. It remains however to determine the content of this right and the scope of the obligation which is thereby placed upon States. The negative formulation indicates, as is confirmed by the preparatory work, that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol. As a 'right' does exist, it is secured, by virtue of Article 1 of the Convention, to everyone within the jurisdiction of a Contracting State. To determine the scope of the 'right to education', within the meaning of the first sentence of Article 2 of the Protocol, the Court must bear in mind the aim of this provision. It notes in this context that all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore, any question of requiring each State to establish such a system, but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time. ... 4. The first sentence of Article 2 of the Protocol consequently guarantees, in the first place, a right of access to educational institutions at a given time, but such access constitutes only a part of the right to education. For the 'right to education' to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed. The Court will deal with this matter in greater detail when it examines the last of the six specific questions listed in the submissions of those who appeared before it."
[47]In paragraphs 10 and 11 on page 284 of the judgment, the court addressed the correct approach to Article 14 and explained that absurd results would be reached if too wide an interpretation were given to that Article, particularly as it appears in the French version. I take account in particular of those paragraphs which have been relied upon, but in the interests of conciseness I shall not read them out.[48]Both counsel have placed reliance upon the passages to which I have referred in the Belgian Linguistics case in support of their respective submissions.[49]In Petrovic v Austria (2001) 33 EHRR 14, the applicant took parental leave to look after his newborn child whilst his wife continued working. The local government office in Vienna refused his claim for parental leave allowance and that decision was upheld on subsequent appeals. The Strasbourg Court held that there had been no violation of Article 14 taken in conjunction with Article 8. The reasoning of the court is important. The court held that Article 14 was engaged, but that in the circumstances the different treatment of men and women was justified. This difference in treatment fell within the margin of appreciation allowed to Contracting States.[50]In relation to the engagement of Article 14, the court noted at paragraph 28 that Article 14 came into play when whenever the subject matter of the disadvantage constituted one of the modalities of the exercise of a right guaranteed, or when the measures complained of were linked to the exercise of a right guaranteed.[51]The decision of the Strasbourg Court in Petrovic was considered by the Court of Appeal in R (Douglas) v North Tyneside Metropolitan Borough Council [2003] EWCA Civ 1847, [2004] 1 WLR 2363. In this case a student was refused a student loan because of his age. The Court of Appeal held that this did not give rise to a breach of Article 14 of ECHR. The loan arrangements made under section 22 of the Teaching and Higher Education Act 1998 and associated regulations were not sufficiently linked to the provision of education within Article 2 of the First Protocol. Accordingly, the refusal of a loan on grounds of age did not fall within the ambit of Article 14. Scott Baker LJ gave the leading judgment, with which Jonathan Parker and Thorpe LJJ agreed.[52]The core of Scott Baker LJ's judgment is at paragraphs 52 to 60, which need to be read in full. For the sake of conciseness I shall just quote paragraphs 57 to 59:
"57. The loan arrangements can be described as a facilitator of education but they are one stage removed from the education itself. The absence of funding arrangements may make it more difficult for a student to avail himself of his article 2 rights but they are not so closely related as to prevent him from doing so. 58. The Secretary of State's case obtains support from O'Connor's case [1999] ELR 209. It is clear from the passages from Auld LJ's judgment that I have cited at paras 38 and 39 above that he, and Swinton Thomas LJ, who delivered a concurring judgment, accepted the argument that article 2 does not require the state to subsidise a student in the exercise of his right to avail himself of education which it provides. 59. The question can in my judgment be reformulated in the present case as follows: does the package of financial measures that together are available for tertiary education affect the right of access to it? Viewed objectively it seems to me to widen the ambit of availability rather than to narrow it. There is no obligation on a state to make any further education available. As the Belgian Linguistic case 1 EHRR 252 and other authorities make clear, article 2 only bites on that, if any, which is provided. In my judgment although the tentacles of article 14 stretch to the field of higher education they do not, as a matter of course stretch to the funding for it. If the funding arrangements had been specifically designed to discriminate against a particular category of person that might have been another matter, for then the arrangements could be said to be necessarily concerned with the right to education. But that is not this case. The funding arrangements here are not within the right."
[53]Hoogendijk v Netherlands (Application 58641/00) was a decision of the Strasbourg Court on admissibility. This case concerned a Dutch scheme for disablement benefits known as "AAW". An income requirement of the AAW scheme had the consequence that more women than men were disqualified from receiving benefits. The Strasbourg Court acknowledged that indirect discrimination might fall within Article 14. At page 21 the court said this:
"... where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be regarded as discriminatory notwithstanding that it is not specifically aimed or directed at that group."
[54]The court went on, however, to hold that there was a reasonable and objective justification for the income requirement contained in the AAW scheme. Accordingly, there was no breach of Article 14.[55]R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, was a decision of the House of Lords concerning pension entitlement and jobseeker's allowance. The claimant in the first case, a British citizen, worked in this country and paid full National Insurance contributions but retired to live in South Africa. He received a lesser pension than his contemporaries living in Britain. The claimant in the second case was entitled to jobseeker's allowance, but was paid at a lower rate by reason of being under the age of 25. The House of Lords held that in both cases there was no breach of ECHR Article 14, taken in conjunction with Article 1 of the First Protocol. In his speech Lord Hoffmann explained that discrimination meant a failure to treat like cases alike. There was no discrimination when the cases were relevantly different. Discrimination arose when the two cases were in an analogous situation (see paragraph 14). Both Lord Hoffmann and Lord Walker went on to explain that some grounds of discrimination are particularly sensitive, with the result that the court is particularly severe in its scrutiny. This are the so-called "suspect" grounds: see Lord Hoffmann at paragraph 15 and Lord Walker at paragraphs 55 to 58. Lord Walker noted that nationality was now one of the suspect grounds. It should also be noted that the relationship between discrimination and justification was discussed by Lord Hoffmann at paragraphs 28 to 33.[56]M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, concerned the assessment of child support contributions payable by a mother to the father with whom the children were living. The consequence of certain regulations was that the mother found herself paying larger contributions because she was living with a same-sex partner. The House of Lords held that there was no breach of Article 14 taken in conjunction with Article 8. In particular, the House of Lords concluded that the requirement to pay larger contributions was not sufficiently linked to the enjoyment of family life. Thus, the matters complained of were not within the ambit of Article 8 so as to trigger the operation of Article 14: see the speech of Lord Bingham at paragraphs 4 to 5; the speech of Lord Nicholls at paragraphs 13 to 16; and the speech of Lord Walker at paragraphs 56 to 61.[57]In Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 282, the Court of Appeal held that regulations permitting the payment of funeral expenses in the United Kingdom but not elsewhere did not give rise to discrimination contrary to ECHR Article 14. Carnwath LJ gave the leading judgment, with which Jacob and Tuckey LJJ agreed. Carnwath LJ noted at paragraph 17 that caution was required in applying the concept of indirect discrimination to the somewhat loosely defined categories used by Article 14. The test to be distilled from the Strasbourg cases was whether the effects on the particular group were disproportionately prejudicial.[58]Finally in this review of authority, I should note the decision of the Grand Chamber in Stec v United Kingdom (2006) 43 EHRR 47. The facts of Stec are not material for present purposes. There is, however, a very helpful summary of the effect of Article 14 which I shall read out:
"51. Article 14 does not prohibit a Member State from treating groups differently in order to correct 'factual inequalities' between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. 52. The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy."
[59]Aided by this review of authority, I must now tackle the issues in the present case.[60]The first question is whether Mrs Sivills' claim to be registered as a social worker falls within the ambit of Article 2 of the First Protocol. In relation to this issue, Mrs Sivills does not allege that there has been a breach of Article 2, merely that the subject matter of her complaint falls within the ambit of that Article. In support of this contention Ms Lieven relies upon the Belgian Linguistics case, paragraph B(4) on page 281. Ms Lieven submits that the 2005 Rules, as interpreted by the Care Standards Tribunal, prevent Mrs Sivills from drawing profit from her education or from obtaining official recognition of her completed studies. Mrs Sivills' complaint relates to that prevention, even though the prevention does not amount to a breach of Article 2.[61]In considering this issue, it is helpful for me to apply the following three tests derived from the authorities:(1) Is the subject matter of Mrs Sivills' disadvantage one of the modalities of the right guaranteed by Article 2 (see Petrovic paragraph 28)?(2) Are the arrangements for registering social workers sufficiently closely related to the right guaranteed by Article 2? Alternatively, are those arrangements one stage removed from the education which is the subject matter of Article 2 (see Douglas at paragraphs 52 to 60)?(3) Does the non-registration of Mrs Sivills as a social worker in any material way inhibit her enjoyment of the right guaranteed by Article 2 (see M at paragraphs 4 to 5)?[62]I am conscious that much learning has been devoted to the question of ambit, both in Strasbourg and in the United Kingdom courts. Many other tests could no doubt be derived from the jurisprudence. Nevertheless, these three tests seem to me to follow from the authorities and to be apposite in the circumstances of the present case. In applying these tests, I must bear in mind that the right guaranteed by Article 2 is expressed in negative terms, namely:
"No person shall be denied the right to education."
Lord Bingham observed in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14; [2006] 2 WLR 690, that this guarantee was a weak one in comparison with most other guarantees within ECHR: see paragraph 24 of Lord Bingham's speech.[63]I now come, therefore, to the three tests formulated above. As to the first test, I do not consider that the subject matter of Mrs Sivills' disadvantage is one of the modalities of the right guaranteed by Article 2. The modalities of that right comprise such matters as participating in the education provided by the State, obtaining the degree, diploma or certificate which is appropriate to the candidate's achievement on her chosen course and so forth. In the present case Mrs Sivills participated in the Birmingham course. She obtained official recognition at the conclusion of that course. The possibility of future registration as a social worker was not one of the modalities of the right guaranteed by Article 2.[64]I turn now to the second test. For broadly similar reasons, I conclude that the arrangements for registering social workers are not sufficiently closely related to the right guaranteed by Article 2. On the contrary, those arrangements are one stage removed from Mrs Sivills' education.[65]I come next to the third test. In my judgment, the non-registration of Mrs Sivills as a social worker does not in any material way inhibit her enjoyment of the right guaranteed by Article 2.[66]Let me now draw the threads together. For the reasons set out above, I conclude that Mrs Sivills' claim to be registered as a social worker does not fall within the ambit of Article 2. On the contrary, the distance between Mrs Sivills' present complaint and her right guaranteed by Article 2 is such that she cannot invoke Article 14. In the result, therefore, I am afraid that Mrs Sivills' claim for judicial review fails at the first hurdle.[67]In those circumstances, it is not appropriate for me to discuss the subsequent stages of Mrs Sivills' case in any detail. I should, however, briefly outline my conclusions. I can well understand Mrs Sivills' concern that the Registration Committee has a discretion in respect of applicants from abroad but no discretion in respect of United Kingdom applicants. There is, however, a perfectly sensible explanation for that difference in treatment. In the case of domestic applicants, all available university courses and similar courses have been considered by the GSCC. Those which are deemed acceptable are listed in Schedule 1 to the 2005 Regulations. On the other hand, it is quite impossible for the GSCC to assess in advance all the social work courses which are available around the world. Consequently, the measure of discretion which is set out in Rule 4(10)(c)(iii)(aa) is inevitable. This Rule is necessary in order to prevent applicants from outside the United Kingdom from being at a disadvantage. Furthermore, this Rule fits precisely with section 64(1)(b) of the 2000 Act. In terms of past education, there is a material distinction between domestic applicants and applicants from outside the United Kingdom. It is therefore inevitable and proper that the GSCC has adopted a different approach to the registration of these two categories of persons.[68]In my view if the question were to arise, which it does not this case, this would not amount to discrimination. It would not therefore be necessary to consider separately the question of justification.[69]Let me now summarise my conclusion on this aspect of the case. Mrs Sivills fails in her human rights claim. The reason for this failure is that the subject matter of Mrs Sivills' complaint is so far removed from the right guaranteed by Article 2 that her claim does not trigger the operation of Article 14.

Part 6: Conclusion

[70]For the reasons set out in Parts 4 and 5 above, Mrs Sivills fails both in her appeal and in her judicial review claim. The decision of the Care Standards Tribunal must be upheld.[71]I am pleased to record that since the date of the Tribunal's decision, Mrs Sivills has completed a social work course at Royal Holloway College. I understand from counsel that this will now enable Mrs Sivills to be registered as a social worker.[72]Finally, I express the hope that the GSCC will give consideration to the points made in Mr Douglas' letter dated 21st June 2005. The GSCC will have a far better understanding than I of the necessary ingredients of a social worker's training. It is the function of the GSCC, not this court, to decide what those ingredients should be. Nevertheless, I hope that, in the light of the points made during these proceedings, the GSCC will consider afresh whether courses such as the Birmingham course undertaken by Mrs Sivills, should be included in Schedule 1. In giving consideration to that question, the GSCC may wish to take into account the comments made by the Care Standards Tribunal in paragraph 43 of its decision. It will be recalled that the Tribunal expressed surprise that a person with the qualifications and experience of Mrs Sivills fell outside the definition of social worker. However, I make those remarks for the consideration of the GSCC in so far as that body may see fit to take those matters into account.[73]Let me now return to the issues before the court. I am grateful to both counsel for the considerable assistance which they have given in relation to those issues. For the reasons stated, Mrs Sivills' appeal and Mrs Sivills' judicial review claim are dismissed.[74]MS CARSS-FRISK: My Lord, might I have a second to confirm my instructions? (Pause)[75]My Lord, I am glad to say we do not seek an order for costs. There is a limited costs order in existence that Mitting J made. That stands, but we do not seek further costs, my Lord.[76]MR JUSTICE JACKSON: I am very pleased to hear that. Thank you Ms Carss-Frisk.[77]MS LIEVEN: My Lord, I do ask very briefly for leave to appeal on the judicial review case, that is the human rights case. I am not going to take up much time because your Lordship is very familiar with the issues. But my Lord so far as the Article 2 of Protocol 1 is concerned, which is the main point in your Lordship's judgment on human rights, your Lordship will have noted this is the first case in the UK on the question of educational qualifications and the degree to which they fall within Article 2. It makes it a very important case not simply for those in Mrs Sivills' position, your Lordship will remember there are other people in her position, but also for potentially other cases where the issue of qualifications arises. So, in my submission, it is an important point generally which would be appropriate for the Court of Appeal to consider.[78]But my Lord, in terms of the test of how arguable is this case in the Court of Appeal, in my submission the question of what falls within the ambit of an Article and these difficult words in Petrovic about modality can really only be considered in relation to each individual Article. The words mean little unless one applies them to a particular Article, and in my submission -- obviously I am not seeking to suggest that your Lordship's decision is plainly wrong, but my Lord it in my submission arguable that the scope of ambit of Article 2 is somewhat wider than your Lordship has suggested. I would perhaps as an example give the obvious disquiet that Carnwath LJ felt in Esfandiari about the rather narrow approach that Scott Baker LJ in Douglas had taken.

MR JUSTICE JACKSON: You are referring to the word "necessarily" being --

[80]MS LIEVEN: "Necessarily", yes.

MR JUSTICE JACKSON: You will note I did not cite the passage with "necessarily" in my judgment.

[82]MS LIEVEN: Absolutely, my Lord, I am not making my application on that narrow basis, it is merely to make the point that there is a great deal of uncertainty about the scope of ambit. In my submission in respect of the issues that arise in this case around education and Article 2, it is a matter which is clearly arguable in the Court of Appeal as well as being of general importance. My Lord, I leave it there because your Lordship is very familiar with the issues. I am not seeking permission on the statutory appeal.[83]MS CARSS-FRISK: My Lord, we would say it is one of those cases where the Court of Appeal ought to decide whether it is fit for appeal. As your Lordship noted, there is a good deal of authority on the scope of the notion of ambit, and not least the recent decision in the House of Lords in the case of M, which really has set it out very clearly, and your Lordship has applied that and the other relevant decisions to the facts of this case. For that reason, we would say it does not raise a novel point of principle that you should decide now is fit to go to the Court of Appeal.[84]MR JUSTICE JACKSON: This is an application for permission to appeal. The application is made on essentially two grounds. First, it is said that it is properly arguable that I have erred in my judgment in relation to the human rights point, and therefore the appeal has a real prospect of success. Secondly, it is said that the issues of law dealt with in this judgment are of considerable importance. The thrust of Ms Lieven's submission on this point is, I think, that the importance of the issue is some other compelling reason why permission to appeal should be granted.[85]It is always difficult for a judge at first instance to assess the chances of the Court of Appeal taking a different view and a measure of humility does not come amiss. Nevertheless, I have reached a firm view on the human rights issue in this litigation and on the view which I take, the appeal does not have a real prospect of success. I am acutely conscious that in any case others may take a different view. But doing the best that I can with the test laid down in the Rules, I do not regard it as appropriate to grant permission to appeal on that count.[86]So far as the importance of the issue is concerned, as Ms Carss-Frisk points out, there have been a number of decisions at a high appellate level dealing with issues which are very close to the issues in this case and which this court has gratefully been able to draw upon. Whether there needs to be a further appellate decision in this area is I think a matter for the Court of Appeal. I am not prepared to say that this matter is of such importance that there is a compelling reason for the appeal to proceed.[87]Therefore, I refuse the application for permission.[88]However, the fact of the application for permission to appeal triggers the duty of this court set out in paragraph 4.3A of the Part 52 Practice Direction. That paragraph requires that when an application for permission to appeal is made,

the judge should state four things:

"(a) whether or not the judgment or order is final; (b) whether an appeal lies from the judgment or order and, if so, to which appeal court; (c) whether the court gives permission to appeal; and (d) if not, the appropriate appeal court to which any further application for permission may be made."
[89]The answers to all four questions are self-evident, but I am required by the Civil Procedure Rules to state them. The answer to question(a) is that the judgment is final; the answer to question(b) is that appeal lies from this judgment to the Court of Appeal; the answer to question(c) is that this court does not give permission to appeal; and the answer to question(d) is that the appropriate appeal court to which any further application for permission may be made is the Court of Appeal.[90]Thank you both very much for your assistance. ______________________________

Cited in 3 later judgments