School transport as a human right
There is an extensive body of English and Welsh law that requires local authorities to provide school / college transport for disabled young people.[1] What is often forgotten, however, is that the duty is also enshrined in the Human Rights Act 1998: Article 2 of Protocol 1[2] provides that ‘No person shall be denied the right to education’.
The recent High Court case of R (ZB & DB) Croydon LBC and South West London ICB [3] concerned the failure of the local authority to provide adequate school transport (and accompanying escort arrangements) for two disabled children. The children’s parent argued that this amounted to a violation of their rights under the 1998 Act and the judge agreed.
In reaching his decision the judge referred to earlier cases where the courts had held that:
- ‘although the Article 2 of Protocol 1 right is intended to guarantee fair and non-discriminatory access to’ education, it is a ‘weak right’, and whether or not it is actually violated will depend on ‘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?’[4] and
- ‘the denial of education under [Article 2 of Protocol 1] can arise in a variety of ways’ including ‘a failure to take steps to provide education when the [responsible authority] is aware of the absence of the pupil from any form of education’. That it is ‘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.’[5]
In the Croydon case the judge held that the council’s efforts to ensure that the children were able to attend their school ‘can fairly be described as “completely ineffectual”’ and that its main excuse appeared to be that it had ‘been doing its best … in trying circumstances’ – which the judge rejected, stating ‘I do not accept that Croydon’s efforts to ensure that the children could attend school represented “its best”; if they did, then its best was not good enough’. He added that it was ‘little short of heart-breaking to contemplate the plight of the children during this period, when they were housebound’ (para 31). Each child was awarded compensation of £10,000 (calculated as £600 per month for the 16.5 months of lost education).
Disabled children have the same right to education as non-disabled children – a right further entrenched by Article 24 UN Convention on the Rights of Persons with Disabilities.[6]
The right to education (and the inherent duty on states to provide school transport) is recognised in the domestic law of many European nations. In Italy for example, the right is protected by Article 38 of its Constitution. A 2016 Constitutional case[7] concerning this Article considered the legitimacy of a Law adopted by the Abruzzo Region that provided a cap on the budget available to provide transport for disabled pupils.
The Constitutional Court considered Abruzzo’s argument that this was necessary as it was also legally obliged to – in effect – balance its overall budget. In rejecting this the Court held[8] that the core obligation in the Constitution was absolute – namely to ensure that there was an effective (ie real and concrete) right to education for disabled pupils. It followed that the Region’s duty to ‘balance its budget’ was secondary: that it is the guarantee of absolute rights that affects the budget and not vice versa.
Although the UK lacks a written constitution, the judgment in the Croydon case makes plain – that local authorities are subject to the same duty: to ensure that disabled children have access to adequate school transport (including where necessary suitable escorts).
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[1] See for example, Cerebra School Transport in England: A guide for parents; Cerebra https://cerebra.org.uk/wp-content/uploads/2021/07/school-transport-wales-july21-web.pdf; and Luke Clements Transport: school / further education.
[2] Incorporated in the First Schedule to the Act.
[3] [2023] EWHC 489 (Admin) 7 March 2023
[4] A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363, para 24.
[5] A v Essex County Council (National Autistic Society intervening) [2011] 1 AC 280, 161
[6] See also General Comment No. 4 on Article 24 – the right to inclusive education (2016).
[7] Corte costituzionale n. 275/2016 of 16.12.2016.
[8] Considerato in diritto para 11.
Posted 2 April 2023