The Supreme Court delivered its judgment in the case of A v Essex County Council [2010] UKSC 33 on 14 July 2010. The case concerned the scope and content of the right to education under Article 2 of Protocol 1 of the European Convention on Human Rights ('the Convention'), as incorporated in the Human Rights Act 1998.

The appellant, a severely disabled man, had been removed from school when the school decided it couldn't adequately meet his needs, and spent 18 months at home until the Council conducted a medical assessment and thereafter found him a suitable school place. The applicant’s case was that the local authority whose responsibility it was to provide for his schooling had breached his rights under the Convention by leaving him at home and not providing him with any meaningful education over those 18 months.

The High Court had dismissed his application on the grounds that it had little chance of success and was time-barred; the Court of Appeal that it enjoyed little prospect of success. The appellant thus had to first demonstrate that the claim had a realistic prospect of success and secondly that the High Court had been wrong to refuse to extend the time under which the claimant could bring the action, pursuant to s. 7 of the Human Rights Act 1998.

Article 2 of the Convention provides that “[n]o person shall be denied the right to education”. The Court’s starting point when examining the extent of the right contained in Article 2 was Lord Bingham’s question in A v Head Teacher and Governors of Lord Grey School [2006] UKHL 14: “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 Court found that there is no community-wide minimum standard of education, but that any such standard must have regard to the system in place in that country. The appropriate question then was whether the school had denied A effective access to such school facilities as the country provides. Key to the Courts consideration of the issue was that A’s disability was such that it was extremely difficult to accommodate such students in the system; the reason why A was, for 18 months, denied the special schooling that his needs required was that there was not immediately available the resources required to carry out the medical assessment that he needed nor, thereafter, a place in a suitable school. Article 2 grants “fair and non-discriminatory access” to those facilities that are available, and if these are limited, that right of access must have regard to that limitation. In those circumstances that delay did not constitute a denial of his right under Article 2. The Court further held that legitimate efforts had been made by the defendant to improve the mental condition of the appellant, and was not limited to the provision of two boxes of activities.

Considering the suggestion that A’s problems may have been mitigated by the extension of educational assistance, Lord Phillips stated that there might be a case for saying that A had been deprived of such educational provision as could have been made available during the 18 month period and that that deprivation violated Article 2. Such a case would however be fact specific and would not raise those issues of principle pursued on A’s behalf. He further held that it was not desirable to permit A an extension of time to pursue that alternative case, which even if successful would be unlikely to result in significant damages.

Although a case under Article 14 (protection against discrimination) of the Convention was not pursued by the applicant, Lady Hale, citing with approval Oršuš and Others v Croatia (2009) 49 EHRR 26 where it was held that while Article 14 allows States to treat groups differently in order to address “factual inequalities” between them, a failure to do so may amount to discrimination, said that this might have been so in the present case.

The Supreme Court, (Lady Hale and Lord Kerr dissenting on whether there was an arguable case, Lady Hale dissenting on the refusal to extend time), thus dismissed the appeal by the claimant, allowing an application for summary judgment and dismissal of the action and refusing to extend time.