In Drexler v Leicestershire County Council  EWCA Civ 502, handed down today (7 April 2020), the Court of Appeal dismisses an appeal against Swift J’s dismissal of a judicial review application against Leicestershire County Council’s school transport arrangements for disabled students of 6th form age. The Council were represented by 11KBW’s Peter Oldham QC and Zoe Gannon.
The County Council had changed its transport policy for disabled 16-18 year olds, moving from the direct provision of transport to giving families personal budgets to arrange their own transport. Swift J dismissed the claim that this change discriminated against disabled students in their enjoyment of Art 8 and A2P1 rights on the basis of age and disability, as well as a PSED challenge. In the Court of Appeal, the only isuse was whether there was discrimination in the enjoyment of these rights on grounds of age.
For these purposes, the claimant compared herself both to under 16s and to over 18s, saying that the Council’s policy treated these groups more favourably than 16-18s. The Court held that the Council was entitled to adopt this policy, which largely mirrorred the provisions of the Education Act 1996 which provide differently for these three age groups – including the mandatory requirement of transport for many pupils of compulsory school age.
The Court also dealt with the much debated question of whether discrminiation under the ECHR was to be justified according to a “manifestly withouth reasonable foundation” (“MWRF”) test or some other yardstick allowing greater scope for Court intervention. Singh LJ (Bean and Newey LLJ agreeing) said (paras 70-71) that there was no binding decision of the Supreme Court which required the Court of Appeal to hold that the MWRF test was inapplicable outside the context of welfare benefits but that there were “decisions of this Court which clearly have applied that test outside that context”, referring to R (Turley) v Wandsworth LBC  EWCA Civ 189;  HLR 21, which concerned social housing, as well as cases were the application of the MWRF test was obiter, Simawi v Hackney LBC  EWCA Civ 1770, which was also about public housing, and Langford v Secretary of State for Defence  EWCA Civ 1271 which concerned the armed forces pension scheme.
Importantly, Singh LJ said:-
“76 Furthermore, and in any event, in my view, the crucial point is not so much whether the “manifestly without reasonable foundation” test is the applicable test; it is rather how the conventional proportionality test, even if that is the applicable test, should be applied given that the context is one in which a public authority is required to allocate finite resources and to choose priorities when it comes to setting its budget; and is also a context in which the ground of discrimination is not one of the “suspect” grounds. In this context, it seems to me that there is no material difference between application of the conventional proportionality test, giving appropriate weight and respect to the judgement of the executive or legislature, and the “manifestly without reasonable foundation” test.”
Outside suspect grounds of discrimination (such as sex, race and sexual orientation, amongst others, but not age, or at least not age in this context), Singh LJ’s reaonsing suggests that, in the context of public authority spending, the dispute about whether the test is framed as MWRF or proportionality is largely sterile.
Read the judgement here.