What is a school’s legal position when it comes to the education of Gypsy, Roma and Traveller children, and how do teachers protect their education? Michael Segal discusses

QUESTION:

How should their educational needs be balanced against those of the community at large?

ANSWER:

The case of Hughes v The First Secretary of State and South Bedfordshire District Council [2007] ELR 1, CA looked at this question.

Mr Hughes was head of one of four Traveller families who bought a site for their caravans. The site, in the green belt, was subject to stringent planning restrictions.

Mr Hughes applied for planning permission to use the site as a Traveller site. The planning authority, South Bedfordshire District Council, refused. Mr Hughes appealed, and there was a public inquiry.

To justify a development on land within the green belt, Mr Hughes had to show ‘very special circumstances’ outweighed? ordinary planning considerations and any harm the development would cause.

The education argument
Mr Hughes relied heavily on the fact that six children of the Traveller children attended local schools. He argued that their education would suffer if they left the site, particularly if that meant a return to roadside camping and an itinerant way of life.

The inspector found that the proposed development would harm the green belt by reducing the openness of the landscape, leading to the encroachment of urban features, and adversely affecting the character and appearance of the locality.

But he accepted that there were no alternative sites for the families and that, if planning permission were not given, the children’s education would be severely hampered.

He concluded that there were ‘very special circumstances’, and recommended planning permission.

Appeal
The Secretary of State appealed against that recommendation. He conceded that the children’s education might be disrupted if they were required to leave the site — particularly serious for Traveller children, who have a history of fragmented education.

But, having regard to the local authority’s obligation to make educational provision for children in its area, he was satisfied that they would have appropriate education even without planning permission and an immediately available alternative site.

The educational needs of these children were not out of the ordinary. None had SEN; all were making progress. The harm to their education if they left the site was not a ‘very special circumstance’ sufficient to overcome the harm caused by the development.

High Court
Mr Hughes went to the High Court. The judge allowed the appeal. He held that the Secretary of State had been wrong in finding, without further evidence, that the harm to the children’s education, if they left the site, was not a ‘very special circumstance’ of sufficient weight to overcome the harm caused by the development.

Court of Appeal
The Secretary of State went to the Court of Appeal, which restored his decision, holding that the High Court had been wrong in saying that he should have called further evidence.

The Secretary of State had found that the children’s education would suffer if they were required to leave the site. No further evidence was necessary. He had simply concluded that this harm had not sufficient weight to overcome the harm caused by the development.

Local authority obligation
The Court of Appeal said Mr Hughes’ argument (that a severely disrupted education could not be an appropriate education) would be correct if the local authority’s duty were to ensure that all children within its area received education appropriate to their needs — but this was not the case.

The local authority’s obligation (Education Act 1996, s.13) was not to ensure that all children within its area received an education appropriate to their needs and, but simply ‘to secure that efficient and properly equipped schools of sufficient number and type were available to meet the needs of the population in its area’.

Whether and by what means parents and children used such schools was another matter. The planning judgment rested with the Secretary of State, who had to  strike a balance between the community’s interests and those of the children.

The Secretary of State decided in favour of the community, despite the disruption to the children’s education. It was not an easy decision, but it was one that he was entitled to make.

Michael Segal is a district judge in the family division of the High Court

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