Pupil unlawfully excluded from school - substitute education offered during period of exclusion - convention right to education breached when exclusion became nullity

Ali v Head and Governors of Lord Grey School: CA (Dame Elizabeth Butler-Sloss President of the Family Division, Lords Justice Clarke and Sedley): 29 March 2004

The claimant, having been excluded from school on suspicion of involvement with an arson incident in March 2001, had in effect been without schooling from that date to January 2002.

He sought damages for breach of his right to education under, among other things, article 2 of protocol 1 of the European Convention on Human Rights.

Mr Justice Stanley Burnton [2003] Gazette, 11 September, despite having found the exclusion unlawful, concluded that there had been no breach of the convention right since the claimant had been given self-assessing work so that alternative education had been available, and that, in any event, by section 19 of the Education Act 1996 the duty to provide education was imposed on the state in the form of the local education authority and not on any particular institution.

The claimant appealed.

Cherie Booth QC and Carolyn Hamilton (instructed by the Children's Legal Centre, Colchester) for the claimant; Jonathan Moffett (instructed by the Borough Solicitor, Bracknell Forest District Council, Bracknell) for the school.

Held, allowing the appeal in part, that there was no breach of the right to education where a pupil was offered substitute education during the period of an exclusion imposed in proper circumstances though in improper form, since the essence of the right was not invaded; that since the second phase of the exclusion had been a legal nullity the offer to provide substitute work at home was not sufficient to prevent the claimant's right under article 2 being contravened during that phase; and that the duty imposed on the local education authority under section 19 of the 1996 Act did not relieve the school either of its legal obligations or of the consequences of its failure to discharge them.