High Court finds Public Sector Equality Duty does not confer an individual “civil right”

14/02/25

Lavender J has today handed down a judgment holding that the Public Sector Equality Duty – to which schools, among other public bodies, are subject – does not confer a “civil right” on a person for the purposes of Article 6(1) of the European Convention on Human Rights. The Court therefore dismissed the claim for judicial review of the Director of Legal Aid Casework’s decision to refuse legal aid for the purpose of a school disciplinary hearing, further concluding that whether or not there is a right to such funding will depend on the specific bases on which the school’s decision is challenged.

The claimant’s son, XWJ, had been permanently excluded from his school in 2021. The claimant had appealed that decision to the review panel and had sought legal aid in relation to the appeal. As review panel hearings are not within the “scope” of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the claimant had sought “exceptional case funding”, which is available when (relevantly) a failure to provide legal aid will breach (or give rise to a risk of breach of) the applicant’s Convention rights. The Director of Legal Aid Casework had refused the application.

The claimant challenged this decision by way of judicial review. She argued that the review panel proceedings would be decisive in relation to various “civil rights” (within the meaning of the case law) and that this was apparent from her application for exceptional case funding, such that exceptional case funding ought to have been granted.

Lavender J noted that the question of whether, and if so when, exceptional case funding is available in relation to review panel proceedings is “potentially significant”. This is because of the number of permanent exclusions, the evidence that children with protected characteristics are disproportionately excluded, and the adverse effects of permanent exclusion (paragraph 3). The charity MIND was permitted to intervene and to make written submissions regarding this broader context.

It was common ground that the school was subject to the Public Sector Equality Duty (“PSED”). However, Lavender J held that that Duty does not confer a correlative “civil right” on an individual in respect of whom a school makes a decision. Therefore, the claimant had not been entitled to legal aid on the basis that the review panel would determine whether there had been any breach of the PSED. Conversely, XWJ’s right not to be discriminated against under the Equality Act 2010, and various of the Convention rights that the claimant invoked, were “civil rights”. However, the claimant had not relied on those rights in her application for exceptional case funding. Nor, indeed, had it actually been argued before the review panel that the decision to exclude XWJ had breached those other rights.

On this basis, Lavender J dismissed the claim. He also dismissed a further complaint that guidance published by the Lord Chancellor in 2023 (after the Director’s decision) was unlawful, finding that that complaint was so lacking in merit that it was inappropriate to grant permission to amend the claim form to permit this proposed part of the challenge to be brought.

The judgement is here.