This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority. The case was Drexler v. Leicestershire County Council  EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.
The pupil in this case (named in the official report as she was an adult) is Kirstine Drexler, a severely disabled young person. She attended a special school 13 miles from her home. Prior to the Council’s change in policy, transport to school was provided by way of a mini-bus (a journey of between 30 to 45 minutes) along with other children. Due to the family’s financial position (as a “non-low income family) they required to make a contribution of £660 a year.
On 9 March 2018, the Council took a decision to amend their school transport policy and their special educational needs policy. The changes were due to take effect as of the 2019-20 academic year, although subsequently delayed (due to this legal challenge) until the beginning of the 2020-21 academic year.
The impact of the changes was such that, instead of transport being provided by way of a mini-bus, the position for pupils with special educational needs, aged between 16 and 18 years old (such as Kirstine Drexler) became that, in place of transport, (save in exceptional cases) cash payments would be provided, known as a Personal Transport Budget (or “PTB”). In this family’s case, the overall level would be reduced by the sum of the previous contribution (£660).
Section 8 of the Education Act 1996 defines a person aged 5 to 15 as being of “compulsory school age”.
Section 509AA of the Education Act 1996 provides that there is a discretionary power (but no duty) to provide transport to school for pupils aged 16 to 18.
It is worth noting at this stage that the equivalent statutory provisions in Scotland (Section 51 of the Education (Scotland) Act 1980) does not differentiate between the legal position of children (under 16 years old) and young persons (aged 16+). However, it does explicitly allow the fulfillment of a statutory transport duty by “paying the whole or any part, as the authority think fit, of their reasonable travelling expenses”.
Article 14 of the European Convention on Human Rights is the anti-discrimination clause. In this case, the claimed discrimination was on the grounds on age. The appellant’s challenge was on the basis of Article 8 (right to respect for private and family life) and Article 2 of the First Protocol (right to education), when read with the Article 14 equality provision.
Ultimately, the Court of Appeal rejected the appeal, on the following basis.
- There was a difference in treatment, based on the pupil’s age. However, age is not a “suspect ground” of discrimination. Therefore, the court would not interfere with a policy seeking to achieve a legitimate aim (in this case, the saving of public money) if the policy was “manifestly without reasonable foundation” – which was not the case in this instance. The concept of “suspect grounds” of discrimination was a new one to me. These are grounds of discrimination which will “call for more stringent scrutiny than other grounds” and in relation to which “very weighty reasons” will usually be required to justify what would otherwise be discrimination on those grounds. The terminology of “suspect” grounds is apparrently derived from case law considering the Fourteenth Amendment to the US Constitution (the “equal protection” clause). My immediate reaction to this was to wonder whether disability would be regarded as a “suspect” ground. Having read the excellent article “Vulnerability under Article 14 of the European Convention on Human Rights“, published in 2017 in the Oslo Law Review, I am reassured to learn that it is. That article is well worth reading in its entirety, by the way.
- The nature of the decision, i.e. one in which the Council had “difficult choices” to make in “straitened financial circumstances” on “priorities for pubic expenditure”. The Court of Appeal pointed out that a decision in favour of the appellant would likely mean cuts elsewhere in the budget affecting people who were not before the Court – a so-called “polycentric” issue. Furthermore, as an elected local authority, the Council has a “democratic legitimacy” which the Courts do not. Therefore, the Courts will not lightly interfere with decisions of this sort.
- While there are circumstances in which a discretionary power becomes, in effect, a duty because of the need to exercise that discretion in a human rights compliant way, in this case the Council was entitled to act in line with the legislation which conferred fewer rights for school transport on those aged 16 and over than it did on those of compulsory school age.
- The Council’s policy contained the possibility of an exception being made in cases of real need. This had happened on seven occasions already, even prior to the policy being implemented. In this case, a request had been made for an exception, but that request had been refused. The policy also allowed for a system of appeals.
This ground is of less relevance for our purposes, since it deals specifically with the English legislation, which differs significantly on these points from Scots law.
The Court of Appeal found that the the criticisms made by the High Court of the SEN policy in relation to the mileage rate and a lack of clarity on circumstances in which a Personal Transport Budget might be higher or lower than the amounts indicated by the “Ready Reckoner” – such that the judge commented they “ought to give the Council pause for thought” – were not sufficient to mean that the policy overall could not be objectively justified.
While the challenge was unsuccessful, it has highlighted for me some important considerations. A case concerning age discrimination and nuanced decisions on public funding in an area where the Council has a discretionary power, rather than a duty, was always going to struggle.
The Court declined to rule on the point raised by the Council that the facts of the case (concerning transport to school) did not fall within the ambit of the right to education (or family life). However, where the Human Rights Act 1998 is relevant, a more stringent approach would be taken in relation to cases of discrimination in relation to “suspect” grounds, including disability.