Josephine Gardiner reports on a court battle involving handicapped people's rights to study. Robert Parkinson, a severely mentally and physically disabled 20-year-old, has lost a landmark case to continue his education now that his statement of special educational need has expired.
His case is the first attempt to challenge the way the Further and Higher Education Act provides for people with special needs, and is likely to focus attention on the plight of mentally handicapped people and their families once statutory schooling ends. Robert's barrister said he would take the case to the European Court of Human Rights if an appeal failed.
Mr Justice Jowitt ruled last week that the Further Education Funding Council was not obliged to pay for Robert to attend a further education college run by Mencap.
The Further and Higher Education Act states that courses funded by the FEFC must lead to a recognised qualification, and Judge Jowitt agreed with the FEFC that there was not enough evidence that Robert would ever be capable of doing even a basic course.
A report published by Professor John Tomlinson last month, however, urged a more flexible interpretation of the law so that students with special needs are not excluded from further education simply because they are not capable of acquiring a qualification. The report was widely welcomed by educators involved with special needs and is currently being considered by the FEFC.
The Parkinson case also highlights the problems faced by people with learning difficulties and their families when the statement of special need runs out at 19.It is all too common, said a spokeswoman for the Carers National Association, for families to "fall into a black hole - education stops and the young person returns home to do nothing, totally dependent on their families".
Robert Parkinson has "profound and multiple learning difficulties" as well as physical handicaps. He is not mobile and his ability to communicate is very limited. His brain has developed abnormally slowly, but there is evidence that the maturation process is continuing and that he might benefit from more educational attention. His former school, Branshaw special school, Bradford, said that Robert's intellectual capacity was probably still increasing, but it was impossible to predict its eventual level.
His parents, supported by Mencap, argued that Robert should attend Pengwern College of Further Education which is run by Mencap, and that the Pounds 30,000 annual cost should be met by the FEFC and the local authority, Bradford. Bradford had agreed to pay a third of this, provided the FEFC made up the rest.
But Justice Jowitt ruled that nothing in current law would oblige the FEFC to pay, because the education provided by Pengwern would not lead to a recognised course and there was not enough evidence that Robert was able to communicate well enough to benefit from education.
John Friel, Robert's barrister, said that "the law at present discriminates against people with this level of disability; if he was less disabled they [the FEFC] would have to pay". But he said he was confident that bringing the case to court had improved Robert's chances because the judge had also suggested that his needs were not purely educational and therefore could fall under the Chronically Sick and Disabled Persons Act or the Community Care Act, in which case Bradford would have to pay.
If this ruling stands, it would have huge financial implications for local authorities. Bradford is currently assessing Robert again.
Kit Roberts, executive principal of Mencap, said the time had come to question whether the 1978 Warnock Report, which established the principle that all children were entitled to education regardless of disability, went far enough.
"It is now accepted that everybody has a right to education up to 19; after that, while you or I can continue in education, those with severe learning difficulties cannot," she said.
She agreed it was ironic that society's slowest learners were given the shortest time in which to learn. "Robert has shown that he is still learning, so he should be able to continue . . . the principle of lifelong learning should include everyone, it's a human rights issue."
Children with learning difficulties, whether due to Down's Syndrome, brain damage, autism or other causes, are frequently in the news, but once older tend to be forgotten, says Francine Bates, assistant director of the Carers National Association.
"It can be a huge shock for parents when their child leaves education at 19. While the child is at school, parents can relax to some extent because everything is taken care of and the child is the focus of a lot of attention, then suddenly at 19 all that ends and they are left to cope alone with an adolescent with learning difficulties."
Robert Parkinson's mother, Karen, said: "Robert was making progress at school, but now the only option is the day centre. He has already slipped back. The way the Act is applied is disenfranchising a whole group of people with severe learning difficulties."