About this case:

• Citation:
  [2022] NIQB 54
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

The court found that the issue had become academic and that judicial review was an improper route, given that there was a statutory complaint procedure in place.

Background

The applicants had complex special educational needs and disabilities. As a result, each was entitled to the provision of educational placement in special schools.

The applicants sought leave to challenge a series of notices issued by the Department of Education. These Temporary Modification of Educational Duty Notices, pursuant to the Coronavirus Act 2020, conferred upon the Department the power to disapply or modify the educational duties owed to each of the applicants.

Temporary notices

The notices under challenge were Notices No. 2, 3, 5, 7, 9 and 10. The notices replaced the original duty owed by the Department to each of the applicants with a “best endeavours duty”.

This was because there was an inability to comply with the original duty, due to the temporary closure of schools in Northern Ireland, and the reallocation of health and social care resources, as a result of the coronavirus outbreak.

This meant that special schools were closed on 20 March 2020 until restrictions were gradually eased from June 2020 onwards. Each notice was for a limited period of 28 days.

There are no notices in place, and none are currently contemplated.

The issues

In pre-action protocol letters, it was claimed that the Department breached its legal obligations. There were purported disproportionate and potentially discriminatory impacts on vulnerable children and young people with special educational needs and disabilities.

It was alleged that the Department was in breach of its duties under section 75 of the Northern Ireland Act 1998, based on its failure to screen the draft legislation, modify notices, carry out a full equality impact assessment (EQIA) and undertake mitigations before introducing them.

The applicants also argued that the Department failed to consult the Northern Ireland Commissioner for Children and Young People (NICCY).

The Department stated that mitigations were put in place, screening was carried out, and there was engagement with children’s commissions, principals, and parents. They also stressed that the notices were a “necessary and proportionate reaction to an extreme health emergency”.

Given that this occurred during the pandemic, and schools have since reopened, the court also had to assess whether the issues raised were now academic.

Discussion

The applicants conceded that the issues were academic as there was no longer any ongoing issue. There had been no notices in the intervening two years and none were anticipated.

Relying on R(Salem) v Secretary of State for the Home Department [1999] 1 AC 450, the court noted that academic disputes “should not be heard unless there is a good reason in the public interest for doing so”.

The applicants suggested that the proceedings were so important as to engender a significant public interest, as they severely impacted one of the most vulnerable groups in society.

The respondents argued that the judicial review court was not the appropriate forum to pursue a complaint of a breach of section 75(1) of the 1998 Act, which provides a separate complaints procedure.

The Department acknowledged that the early notices, No. 2 and No. 5, were not subject to a formal screening exercise pursuant to section 75 of the 1998 Act. However, this had to be seen in the context of the prevalent emergency.

However, the Department were “cognisant of the need to try to maintain as far as possible Special Educational Needs provision within the existing circumstances. Due regard was given to those needs”.

The subsequent notices, No. 7, No. 9 and No. 10, were subjected to formal equality assessments. The equality and human rights impact from the policy screening decision was not to conduct a full EQIA. They determined a full EQIA was not required.

Determination

Ultimately, the court concluded that the matter between the parties was academic. They also could not identify any good reason in the public interest for granting leave in the case.

They noted that the cause of the initial dispute had long since passed.

They also noted that section 75 of the act provides an alternative remedy to judicial review. There had been no such complaint made to the Equality Commission. The court noted: “If there is merit in the applicants’ complaint it is difficult to understand how the statutorily embedded route would not be of benefit”.

An alleged failure to carry out an EQIA was precisely the type of situation that the statutory route was designed to deal with.

In any event, the Department did carry out an equality screening process, as argued for by the applicants. The decisions taken pursuant to that screening exercise were, in the court’s view, within the rational or reasonable range of options available to the Department.

In terms of any alleged failure to consult, it was again “clear” that there had been consultation with stakeholders. This was despite the fact that the applicant could not point to any statutory basis which required consultation, or any legal basis for a legitimate expectation of such a consultation.

Conclusion

For these reasons, leave for judicial review was refused.