The Labour government’s decision to end VAT relief on private school fees[1] has attracted widespread attention. The government’s stated purpose for this change is "to improve standards and opportunities for the nine out of 10 children who attend state schools" and to direct the funds raised through VAT towards public services, including "education priorities."
Contrary to expectations that the policy would take effect at the start of an academic year, it will instead be implemented from January 2025, after students have already settled into their schools and routines, which has added to families and educators’ distress. In addition to this, the government has also confirmed that any pre-payment of fees relating to a term starting on or after 1 January 2025 will be subject to 20% VAT from 29 July 2024. These are added costs that schools may not be able to absorb and may instead pass on to parents in the form of higher school fees. Families who have chosen independent education for their children, but who may now struggle to afford it, are understandably aggrieved.
The Independent Schools Council (ISC) has responded strongly, launching legal action against the government on grounds that focus on alleged breaches of the European Convention on Human Rights and the Human Rights Act 1998. Additionally, an independent faith school is challenging the government's plan, claiming it constitutes unlawful religious discrimination because the policy will force Christian schools to close, thereby limiting parents' ability to choose a Christian education for their children.
What does the law say?
The 'Right to Education' is enshrined in Article 2 of the First Protocol to the Convention on Human Rights (“A2P1”), which provides:
‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’
The right to education comprises four distinct rights, none of which are ‘absolute’. This means that the right(s) may be restricted in certain circumstances, but only if the government can demonstrate that such a restriction is lawful, legitimate, and proportionate.
The Right to Education Includes:
1. A right of access to existing educational establishments.
2. A right to an effective (though not necessarily the most effective) education.
3. A right to official recognition of academic qualifications.
4. A right, in conjunction with the freedom from discrimination guaranteed by Article 14 of the Convention, not to be disadvantaged in the provision of education on any grounds—such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status—unless there is reasonable objective justification.
The right to education applies to the existing education system. It does not compel the government to provide or subsidise any particular type of education. The State’s duty to respect parents' rights to educate their children according to their religious and philosophical beliefs has been interpreted by the courts to mean that the State must protect educational pluralism, stating that pluralism is essential to the democratic society envisioned by the Convention[2]. Educational pluralism means the freedom to choose the school, the educators, the experience, and the spiritual and educational path that parents' and guardians consider best for their children without incurring legal and economic penalties.
However, while parents are entitled to have their religious or philosophical beliefs respected in their children’s education, this right is not absolute. As long as the parents' beliefs are appropriately considered, an education authority may diverge from them, provided there are sound reasons for doing so and it is done objectively, critically and caters for a diversity of beliefs and world views.
What will the Claimants have to prove?
One thread that may run through the arguments deployed by the Claimants is that that the Convention guarantees a right to access existing educational establishments. Clearly this includes access to fee paying schools, schools with a religious character and special educational needs provision (SEND). Legislation intended, or indeed which has the indirect effect of abolishing or undermining the existence of such schools (as the consequence of removing the VAT exemption) is arguably unlawful and incompatible with the Convention.
The right to education is protected by the Convention in the interest of plurality; the very plurality which has itself been deemed essential to preserving a democratic society envisioned by the Convention.
If you have been affected by any of the issues raised in this article, please contact the Education Department.
This is general guidance and does not constitute legal advice.