“[E] is top priority for an in-year application under Islington’s Fair Access Policy (transition and uncertainty, alongside beginning her recovery from domestic abuse). [E] is not currently in education. As a result, she is at risk of experiencing poor outcomes. School offers children who have experienced domestic abuse a safe place to learn, grow, make friends and participate in school life. [E] left behind [her] school, [her] friends, [her] home and [her community]. [E] enjoyed school and excelled in literacy…[E] requires a supportive and nurturing environment to achieve her potential, and gain a sense of belonging during a period of uncertainty.”
“The family have moved between boroughs three times since they became homeless in May 2015. On Thursday28 April 2016 [C] was required without notice to move between authorities, for the fourth time in a year. This will mean that [E], the oldest child and the only child of school age will have been to four different schools in the course of a year. However, she has not been at school at all since the end of April. This is because after some significant delay when the family were required without notice to move to Fulham, [E] was found a school place in Hammersmith and Fulham. She obviously cannot travel from Islington to Fulham every day. Regrettably, she requires a new school place. Her mother has not received any assistance from the authority, although it was the authority that arranged the move that would obviously disrupt schooling. [E] of course has a statutory right to education, as well as a human right contained in [article 2 of the First Protocol]. You should either provide her with a school place immediately, or arrange for alternative provision in accordance with section 19 of the Education Act [1996].”
“It is only if a denial of a Convention right is established that one examines domestic law in order to discover which public authority, if any, is liable under [section] 6. This is an inquiry which can sometimes give rise to difficult questions of causation and can make it necessary to ask which public authority bore the primary duty to act in accordance with the Convention.”
“No person shall be denied the right to education”
“As noted above, the Convention and its Protocols do not tolerate a denial of the right to education. The Government confirmed that Russian law did not allow the exercise of that right by children to be made conditional on the registration of their parents’ residence. It follows that the applicant’s children were denied the right to education provided for by domestic law. Their exclusion from school was therefore incompatible with the requirements of Art, 2 of Protocol No. 1.”
“The Strasbourg jurisprudence…makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No. 60856/00) (unreported)7 February 2006 ). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?”
“The question, therefore, is whether between those dates the school denied the respondent effective access to such educational facilities as this country provides. In my opinion, the facts compel the conclusion that it did not. It invited the respondent’s parents to collect work, which they did not. It referred the respondent to the LEA’s access panel, which referred him to the pupil referral unit, an educational provider; the pupil referral unit’s offer of tuition was declined. The school arranged a meeting to discuss the respondent’s re-admission, which the respondent’s family chose not to attend. The head teacher’s reaction to this non-attendance was criticised in the courts below as over-hasty. Perhaps so. But I am not altogether surprised that she treated this unjustified non-attendance as a repudiation by the family of the pupil-school relationship. She again gave the parents contact details at the pupil referral unit. The LEA’s attempts during the autumn to secure the respondent’s readmission to the school or admission to another school were thwarted by the family’s uncertainty [about] what they wanted. As soon as they made up their minds a place (although not at the school) was promptly found. The retention of the respondent’s name on the roll of the school in July, and its removal in October, although much relied on in argument, were events unknown to the respondent and his family at the time, and had no causal effect or legal consequence. It is a matter for regret when any pupil, not least an able pupil like the respondent, loses months of schooling. But that is not a result which can, in this case, be laid at the door of the school.”
“15. As I see it, the critical point in all the speeches is that under article 2 of [the First Protocol to] the Convention, a person is not entitled to some minimum level of education judged by some objective standard and without regard to the system in the particular state. The question is that posed by Lord Bingham, namely whether the pupil was denied effective access to such educational facilities as the country provides. As Lord Hoffmann stressed, that is not the same question as the question whether the relevant authority was in breach of a duty imposed by domestic law, as for example, by failing, in breach of section 324 of the 1996 Act, to comply with educational provisions set out in a statement of special educational needs (“SSEN”). 16. The question is then whether the pupil has been denied effective access to the system in place. That question will only be answered in the affirmative where his right to education has been so reduced as to ‘impair its very essence and deprive it of its effectiveness’.”
“45. Was A deprived of an effective education during the relevant period? I recognise that if that question is asked by reference only to what he was provided with between January 2002 and July 2003, it could be answered in the affirmative. However, as Lord Bingham observed, the correct approach is the pragmatic one adopted by the European Court. It was recognised on all sides that what A required was a satisfactory long term solution for his various problems. It was also recognised at an early stage that, in the absence of a considerable improvement in his condition and behaviour, A could not go back to LS. I agree with the judge and the Court of Appeal that any other view was unarguable. … 50. The fact that it was not said [on the claimant’s behalf] that there was an infringement of A’s article 2 right to a long term education immediately shows that the correct approach is to consider the problem in the context of the system available and to recognise that solutions take time and money to put in place, sometimes a considerable amount of both time and money, as here. In my opinion the same approach should be adopted to the interim measures. All the professionals were working towards the long term solution, hoping that it would be achieved sooner rather than later. Some interim measures were put in place in the period from January 2002 to July 2003. It is said with apparent force that A was deprived of any meaningful education in that period and, indeed, that A’s condition and behaviour deteriorated during that period. Moreover, the account of the facts set out above shows that, at any rate on A’s case, there were grounds for criticism of the local authority in not providing more than they did. 51. The question is not, however, whether the local authority were at fault, but whether the limitations on A’s education impaired the very essence of his right to education and deprived his right of effectiveness or, as Lord Bingham put it, whether he was deprived of effective access to education. The answer to that question (or those questions) must have regard to the fact that the problems were correctly seen to be short term problems pending a multi-disciplinary 5-day examination of A in order to achieve a long term solution. 52. Even taking A’s case at its highest, considerable efforts were made by LS and others to assist A in various ways. They were not limited to the somewhat ineffectual provision of two boxes of educational toys, which were described as “not acceptable education”
“75. When these passages are read in their context they do not support the proposition that article 2 of the First Protocol imposes on contracting states a positive obligation to provide education that caters for the special needs of the small, if significant, portion of the population which is unable to profit from mainstream education. On the contrary the authorities assume, correctly, that all contracting states have a system of education and limit the positive obligation imposed by article 2 to regulating education in such a way as to give access without discrimination to that system.”
“While education is provided by the state for children, as a matter of course, in all member states, it is not possible for them to give an unlimited guarantee to provide education, as that might be construed to apply to illiterate adults for whom no facilities exist, or to types or standards of education which the state cannot furnish for one reason or another.”
“79 …Contracting states that provide facilities for the education of adult illiterates are obliged by article 2 to ensure that adult illiterates have access to those facilities. Those states that do not have such facilities are not required by article 2 to establish them.”
“I consider that a denial of education under the article can arise in a variety of ways. Obviously, a calculated refusal to allow a pupil access to any form of even basic education will be in violation of the right. But a failure to take steps to provide education when the state authority responsible for providing it is aware of the absence of the pupil from any form of education could in certain circumstances give rise to a breach of the right. If, for instance, a local education authority knows that a child has been asked by a school not to attend that school; and if the authority is responsible for the provision of education to that child; and if it takes no action to supply any alternative to what has been previously provided by the school, it is at least arguable that it is in breach of its duty under article 2 of the First Protocol. I would go further. I believe it also to be at least arguable that an authority with the responsibility for providing education, if it knows that a pupil is not receiving it and engages in a completely ineffectual attempt to provide it, is in breach of the provision.”
“[T]he attainment of pupils who make in-year moves is markedly lower than their peers, and lower still among pupils who make multiple in-year moves. Only 27% of pupils who move schools three times or more during their secondary school career achieved 5 A* to C grade GCSEs compared to the national average of 60%.”
“14. For the last 60 years the responsibility for ensuring the secondary education of children in this country has rested on what Lord Wilberforce called “a fourfold foundation”: Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 , 1046; and see p. 1063. While the legislation and much else has changed, that fourfold foundation has so far survived. 15. The first of the four elements identified in theEducation Act 1996 , which governs this case, is the parents of a child of compulsory school age. By section 7 the parents are under a duty to cause every such child to receive efficient and suitable full-time education “either by regular attendance at school or otherwise”
“As you will be aware the Home Authority has responsibility for securing educational provision for any child resident in its borough. I have recently received notification that [insert child’s name] formally resident in the London Borough of Islington, moved to [insert borough] on [insert date]. As far as I am aware, [insert child’s name] is neither on the roll of a school/PRU nor receiving full-time education. I am therefore writing to you to notify you that as [insert child’s name] is no longer resident in Islington, I am officially handing over responsibility to [insert borough] for securing [his/her] education provision. I would appreciate confirmation that you have registered [insert child’s name] as missing from education and are taking steps to secure [his/her] education provision as a matter of urgency.”
“Housing authorities will need to liaise and work collaboratively with the relevant service providers to ensure that appropriate arrangements are put in place and monitored. When households are placed in temporary accommodation, it is recommended that housing authorities offer to liaise with the relevant health, education and social services departments in the areas in which the households are temporarily housed. Liaison will be particularly important in cases where households have to be accommodated in the district of another housing authority.”
“[E]’s primary submission, which is advanced against the background of the framework of legal obligations set out above…is that [Islington] can and should properly be held responsible for the fact that [E] was absent from education as a result of the move to Hammersmith and Fulham. Considering the matter from the standpoint of basic causation, and on the assumption for present purposes that there is a breach of [article 2 of the First Protocol] during [the period E was housed in Hammersmith and Fulham], it is evident that [Islington] and not Hammersmith and Fulham, has principal causative responsibility for [E’s] absence from school during this period. This arose from its decision to transfer the family to another borough without any meaningful liaison with Hammersmith and Fulham as to the continuation of [E’s] education, or any “follow up” to ensure that [E] was receiving full-time education.”
“When it makes an award under Article 41, the Court may decide to take guidance from domestic standards. It is, however, never bound by them.”
“10. [C]’s principal needs arise from the fact that she has a hearing impairment. In Sierra Leone, she learned American Sign Language (‘ASL’) which is slightly different from British Sign Language (‘BSL’), so it will take her some time to complete the transition from ASL to BSL. She came to the UK from Sierra Leone in 2006. 11. [C] can say a few simple words and she communicates with her three children by means of contact, gestures and sounds. She uses sign language with [E]. Her children can understand her sounds in a way that an outsider could not. 12. [C] makes good and frequent use of her smart phone which she uses to send and receive text messages, often, I believe, with people in the deaf community. 13. [C] does receive help in four ways. Each of these four forms of help comes from an agency or service that is independent of Islington and which I have assumed for the purpose of my Care Act assessment will continue to provide her with necessary services. Clearly, if such a service ceased to be available then I would reconsider whether [C]’s assessment should be updated. 14. Deafhope, which is a nationally funded service, has workers who often see [C], particularly Sarah Eltar, who originally put [C] in touch with me. These workers are themselves deaf and are able to sign with [C] and hence to translate documents for her and assist her in other ways. For example, Ms. Eltar has supported [C] to register with a GP and, as her outreach worker, she provides her with emotional support and had attended some court hearings [in connection with C’s matrimonial litigation]. 15. Deafhope has a family support worker, Moona Mohammed, who has been assisting [C] with some low level parenting issues around boundaries that she has had with [E]. Ms. Mohammed is also deaf and is able to sign with [C]. This service was prompted by a request in July from my colleague in Children Services, Lucy Woolliscoft-Faulkner. 16. [C] is in touch with the Deaf Welfare Rights Advice Service (‘DWRA’), an Islington funded service that is based in 222 Upper Street. This service can support [C] with a wide range of issues including: Booking a BSL interpreter, for NHS, GP, council and other appointments; Housing repairs and other housing queries; Form filling and letter translation; Help and support with HMRC (child tax credit/working tax credit); Debt and access to work advice; Referral to other services that support deaf people. 17. [C] often has times when she does not have to care for her children. [E], aged 8, is at school, and since July [F], aged 3, has been at nursery. Since September she has been attending nursery for 30 hours per week and [J], aged 1, has been attending the same nursery for 15 hours per week (9:45 to 12:45 during weekdays).”
“The impact of [C]’s needs on her well-being was considered throughout my assessment, as required by section 1(2) of the Act. The provision of specialist sensory equipment, information on how to access BSL Interpreters, [and] access to the DWRA service, are measures that will minimise the impact of [C]’s needs on her well-being. [C] also receives additional support from Deafhope and [has] been receiving support from children services and the housing department.”
“[C]’s sensory impairment has a major impact on her, as without the provision of BSL interpreters, specialist sensory equipment and advice and information on how to access deaf services, she will be at significant risk of social isolation and limited independence. However, these services are available and [C] has been accessing them without difficulty.”
“While the document states, under ‘Work, Education, Training and Volunteering’ that [C] ‘would like to pursue a further education course once her family situation becomes stable’, there is no assessment of what exactly she wishes to achieve, and how care and support might contribute to that outcome beyond a bare statement that she will receive ‘information and advice’.”
“During my assessment, [C] did not provide any information regarding what she aims to achieve in pursuing further education. When asked, she emphasised that her priority at that moment was her housing situation and education for her children. She states that she will consider that once her family situation is settled. [C] is aware that she will receive advice and information as well as support from the DWRA service, regarding further education and other opportunities for deaf people.”
“I discussed [C]’s use of the internet and her ability to do internet shopping and she confirmed that she was in the process of having telephone and internet access made available at her home. In my email of 26 July I recorded that ‘[C] has internet connection now at home and she uses a[n] electronic tablet.”
“My assessment of [C] is that she is able to be independent in maintaining her personal relationships and engage in social activities. [C] is able to contact family and friends, as she uses text, as well as video messages on her smart phone to do so. She is also in receipt of information regarding Deaf Clubs in and around the borough of Islington and has access to the DWRA service, who can provide her with additional support if required. At the time of my assessment, [C] chose not to, as she said she was focussed on her housing and schooling issues for her family. It was because of this choice, rather than any need for services, that I recorded that she was ‘not able to pursue any activities at the moment, due to her circumstances’.”
“Need is a relative concept which trained and experienced social workers are much better equipped to assess than are lawyers and courts, provided that they act rationally.”
“I [do not] accept that it is for the court, [rather than] the local authority, to decide whether the applicant is in need of care and attention which is not otherwise available to him. It is for the authority to make that decision, subject to the possibility of challenge by way of judicial review on any of the usual grounds.”
“In construing assessments and care plans reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning.”
“My Lords, I am troubled at the prolific use of judicial review for purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of the fact. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers, or otherwise acted perversely, I think great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate case, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power (e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg v Secretary of State for the Environment, ex parte Nottinghamshire County Council[1986] 1 AC 240 , 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum, ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”
“[A] benevolent approach should be adopted [by the court] to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misjudged reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”
“Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same, notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes the decision is the only one which could rationally have been reached. In all such cases the error should not (save, perhaps in wholly exceptional circumstances) justify the decision being quashed.”
“The definition of a ‘young carer’ in subsection 3 of the Act is potentially very broad but I have interpreted it as requiring that the child provides a degree of care arising from the mother’s care needs. The conclusion I reached in my assessment was that [E] helps her mother in a way that goes ‘beyond what is appropriate for her age’ but I did not consider this to be care, within the Act because firstly, neither mother nor child considers it to be care and secondly, its need arises not primarily from her mother’s deafness, but from her parenting style. In other words the additional responsibilities that [E] adopts are not caring responsibilities but responsibilities that arise in a parent-child context, shaped by [C]’s parenting style.”
“[S]ocial workers should always keep an open mind about changed circumstances. Hence, when I assessed that [C] and her children would benefit from family support work, I discussed this with [C] only to find out that a specialist family support worker (Moona Mohammed, a family support worker with Deafhope) was already due to be allocated to the family. [C] has indicated that she is very happy with the service provided by Deafhope and prefers working with deaf workers to hearing workers, therefore an additional referral service was not necessary. I cannot agree that this means that my assessment was unlawful, it means merely that I identified a need that could be fulfilled without the provision of local authority services, which was discussed with [C] and which is significantly less stigmatising for parents and families, who are often very aware of the assumptions and implications made when children’s social workers are involved.”
“The broad response to this criticism is that (a) because their mother cannot speak to them they are likely to have an element of delayed speech, but (b) once they start at nursery school this problem is likely to be overcome. Indeed, this already appears to be the case for [F], who I and other professionals have observed to have made huge developments in this area over the last few months. Furthermore, the provision of speech and language therapy is a medical service provided by the NHS, and although Islington can have a role in signposting, referrals need to be made by health professionals. A referral has been made for [F] by the health visiting team, and it is expected that the same will take place for [J] once he is older and his speech delay more discernible.”
“[I]t is important to consider the approach actually advocated by the Court of Appeal in [Anufrijeva]. At no stage did the Court of Appeal suggest that the courts should exercise their costs discretion in order to deprive successful parties of their entitlement (in principle) to all or part of their legal costs on the grounds of disproportionality to any damages award. Rather, what the Court of Appeal recommended was a form of active case management to ensure that costs are kept proportionate…That is precisely the approach that E has put forward in her written submissions of 27 June, proactively suggesting alternative dispute resolution to avoid the generation of unnecessary further costs in connection with the damages aspect of the claim. Anufrijeva therefore provides no support whatsoever for the approach to costs that [Islington] now advocates.”
“If the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. It is a fortunate litigant who wins on every point.”