A2P1 and Access to Education during Covid-19

18 May 2020 By Ciar McAndrew

As the home-time bell rang on 20 March 2020, schools and other educational providers across the country closed their doors in response to the Covid-19 pandemic. The only pupils currently permitted to attend school are vulnerable children and the children of key workers. All children, however, continue to enjoy the right to education under Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights (ECHR).

Strictly speaking, the right under A2P1 is a right to effective access to such educational facilities as the state provides. Currently, the only educational facilities being provided to most children come in the form of online classes and resources. Effective access to such facilities is likely to be much easier for some children than for others.

For example, the Good Law Project recently wrote to the Secretary of State for Education, highlighting the difficulties which children from disadvantaged backgrounds may have in accessing online learning due to the high cost of laptops, tablets and internet access. The Secretary of State subsequently announced that certain cohorts of disadvantaged children are to be given a free laptop or tablet, and 4G connectivity, in order to permit them to access online learning. See also Imogen Proud’s earlier blog post on this topic.

However, the categories of eligible disadvantaged children are relatively narrowly defined (as care leavers, those aged 0-19 with a social worker, and disadvantaged year 10 pupils). There are likely to be many children outside of this cohort whose families cannot afford a laptop or tablet, or who are required to share their device (and therefore their learning time) with siblings.

The problem has been recognised by the United Nations Committee on the Rights of the Child. The Committee has recently published a statement on the impact of Covid-19 on children, calling for states to “ensure that online learning does not exacerbate existing inequalities or replace student-teacher interaction. Online learning is a creative alternative to classroom learning but poses challenges for children who have limited or no access to technology or the Internet or do not have adequate parental support.”

Similarly, there is likely to be a significant cohort of children with disabilities and/or special educational needs who may find it more difficult or impossible effectively to access mainstream online resources. For example, children with visual impairments may require educational activities based around audio learning, whilst children with sensory needs are also likely to require specifically tailored activities.

The ability of some children effectively to access online learning and not others could, in principle, give rise to issues of discrimination on the grounds of socio-economic status or disability, contrary to Article 14 ECHR read with A2P1. For example, a local authority which fails to provide a disabled child with online learning in a form which is genuinely accessible is likely to be prima facie discriminating against them on the basis of their disability.

It would be open to the local authority to justify such discrimination. In order to do so, it would have to show that providing non-accessible home learning is a proportionate means of achieving a legitimate aim. Clearly, the need to curtail the spread of the Covid-19 pandemic, and the limited resources of public authorities during the crisis, will carry significant weight in any such analysis. In any given case, however, the local authority will be required to show that it has addressed its mind to the impact which failure to provide accessible materials will have on the individual rights of the child and balanced those rights against the interests of the community.

Ciar McAndrew is a junior barrister with a developing education law practice and a longstanding interest in education law issues.