The government is set to face the private school lobby in the courts from today in the most serious challenge yet to its decision to apply VAT to independent school fees.
Seven families have filed a claim to the High Court over the government’s decision, arguing that the policy is “incompatible” with aspects of both the Human Rights Act and the European Convention on Human Rights (ECHR).
They are supported by the Independent Schools Council (ISC), an umbrella body for seven associations representing more than 1,400 independent schools.
But what can we expect from the judicial review, due to take place from 1-3 April? And could it lead the government to backpedal on its flagship education policy?
Challenge to VAT on private school fees
The tax on private school fees is a flagship manifesto policy for the Labour government, which says it will fund state-school spending.
But the policy has sparked a backlash from the independent schools sector, which has voiced fears that it could “accelerate” the turnover of headteachers, lead to job cuts and restrict bursaries for disadvantaged pupils.
When the case appears in front of the High Court, the independent school claimants will argue that taxing the provision of education is in breach of the right to education guaranteed by the ECHR.
The Treasury stated last year that the policy is consistent with all of the UK’s human rights obligations.
The claimants will also argue that the policy threatens access to the education that their children need and that the state cannot provide. This includes children who have complex special educational needs and disabilities (SEND) and those who want to go to a school in line with philosophical or religious beliefs.
Is the legal case likely to succeed?
Jamie Cartwright, partner at law firm Charles Russell Speechlys, said that declarations of incompatibility with human rights, such as the one put forward by the claimants, “may carry political and moral force to give rise to change”.
However, Mr Cartwright warned that the number of successful challenges are very few, and even if the case succeeds in court, the law will “continue in force until it is changed through Parliament”.
“The challenge facing the claimants will be to persuade the court that the imposition of further cost is effectively preventative of the right to education, where the counter argument will run that there are state-funded alternatives,” he said.
Oscar Davies, a barrister at Garden Court Chambers, added that courts are generally cautious about making decisions on cases that involve “macroeconomic decision-making from central departments”, which would apply to the VAT policy.
However, there is “valid concern about to what extent the government has considered the impact of its policy, particularly in respect of disabled children whose parents are self-funding their placements”, Mx Davies said. The success of the case will depend on “the strength of the government’s evidence” that it has fully considered all possible impacts.
More on private schools:
The government said it would not make any exemptions to the policy for special schools or arts and music establishments, despite calls from the sector. Although pupils on education, health and care plans (EHCPs) are exempt from additional VAT, the government has ruled out doing the same for special schools.
“Carving all children with SEND out of this policy would carry a significant cost,” the Treasury warned, adding that while it had ”carefully considered” proposals to exempt special schools, it believed this would be “unfair”.
Mx Davies added that the case could be “hard to win” unless the private school claimants can prove that the government’s policy has a “disproportionate impact on certain groups, such as those with disabilities”.
What about the European Court?
Should the case succeed in the High Court, it would then go to the Court of Appeals and then the European Court of Human Rights (ECtHR), which oversees and interprets the ECHR.
It would likely take years for the case to reach the European court. But if it were to succeed in the ECtHR, could the judgement have any effect on UK government policy?
“There have been lots of instances in which ECtHR judgements have resulted in the changing of law,” said Simon Creighton, a consultant at Bhatt Murphy Solicitors. These include the abolition of corporal punishment in state schools and strengthening protection for religious freedoms in the workplace.
However, Mr Creighton emphasised that, even if the European court rules in private schools’ favour, the government is not necessarily obliged to change anything.
“I find it difficult to see that the courts would intervene in economic and social policies that are part of the democratic process and were in political manifestos,” he said.
The ECtHR ruled in 2005 that the UK government’s blanket ban on prisoner voting breached human rights laws, but it wasn’t until 2017 that voting rights were given to around 100 inmates in England and Wales who were released on temporary licence.
“The ECtHR is not often interested in issues of taxation and resources,” Mr Creighton said, adding that he was “highly sceptical that [the case] would be considered as the UK has a universal right to education”.
Where a case does win at the ECtHR, it becomes a diplomatic measure, Mr Creighton explained: “Most likely, it’ll be debated in Parliament and there may be limited changes that the European courts will accept.”
If this were to happen, the government would have to report back on the steps it has taken to rectify the situation.
Why pursue a case that may not succeed?
Asked about the possibility of the case forcing a change in policy, a spokesperson for the ISC said it is “aware that, should part or all of the government’s policy regarding VAT on fees be found incompatible, it is up to the government how they wish to proceed”.
However, they added that it is important to “test the compatibility of this unprecedented tax with human rights law, given the speed with which it was implemented”.
“Given their repeated statements of respect for the rule of law, we would hope they would take the court’s judgement seriously,” the spokesperson added.
For the latest education news and analysis delivered every weekday morning, sign up for the Tes Daily newsletter
