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July 24th, 2010

On the 15 July this year the headline in The Times law reports “Delay did not deny right to education” caught my eye. But in this instance the delay did! The Times got it wrong.

The case: A v Essex County Council

When I read it, I saw that it was about the rights of an autistic child and they were being argued out in the Supreme Court. It must have been a close run thing because the decision voiced by Lord Phillips was a majority decision, three to two. The decision was against the child.

I felt for the child and for the local authority. The educational needs of the one, and the difficulty meeting those needs of the other. It was a very sad situation. I felt for the Court too.

The child, named A, was autistic with a severe learning disability. He also had a severe communication disorder and challenging behaviour. He suffered from epilepsy; frequently having 10 to 15 short epileptic fits a day, despite medication. He was doubly incontinent, had no concept of danger and required constant supervision.
At the age of 12 he was excluded from his school because it couldn’t cope. It took eighteen months to assess his needs and find residential accommodation for him. The case was all about those eighteen months. Had he been deprived of the education he was entitled to during that time?
As I read the heading I realised that the case was wrongly described. Shame on The Times! It should not have read ‘Delay did not deny right to education.’ It should have read, ‘Delay denied the right to special school’. The ‘right’ to education was only to a mainstream school. It was not disputed that child A could not exercise it, having been excluded.

What about the right to opt out?
These were the words that Lord Phillips used:

‘The authorities … did not support the proposition that article 2 imposed … a positive obligation to provide education that catered for the special needs of the small, if significant portion of the population which was unable to profit from mainstream education…. The right of access to education conferred on A had to have regard to the limited resources actually available to deal with his special needs.’

WOW, as they say. Brothers, sisters, comrades and all you lawyers and academics trumpeting ‘rights’ provided by Parliament or, better still, in the European Convention of Human Rights, it is high time you realised that sometimes rights are worth no more than the pot of gold buried at the end of a rainbow, and just when you most need them.
Let me underline what precisely this means in the context of special educational needs.

Over 100 special schools were closed from 1997 onwards. ‘For a small if significant portion of the population’ this curtailed those resources. So, for some children it actually destroyed the ‘right to education’ enshrined in article 2 of Protocol 1 of the European Convention of Human Rights. In the future, parents wanting their children educated in a special school will find this case argued as a precedent against them.
I do not criticise the judges for seeing the world as it is, not just as they would like it to be. They are not the problem. I do criticise the politicians, lawyers and academics – those who fashion and lead opinion – the social engineers among them. They never seem to take into account how the world actually is when they try to make it how they would like it to be, totally ignoring human frailty. I especially criticise those who ‘delete without reading’ anything that conflicts with their mind set opinions. They are the real termites.
Just what is the value of a right to mainstream education for children with special needs if they are then left in the hands of classroom assistants (‘amiable mums’ as they are affectionately called) instead of trained teachers with time to give them. And if they are bullied?  What about the right to opt out?
I have seen a boy controlling his computer with a wand attached to his forehead in a special school. I have seen children rescued from bullying in mainstream schools. I have listened to their parents. For them it was not just a ‘learning experience.’

When so many special schools have been closed, when resources are tight, when all the talk is about voluntary effort and the tiny question that has to be asked, apart from any other, is where it is going to get its core funding from, just how do we make sure that children with special needs receive the skilled professional support that they need?