A girl who was bullied in a mixed state school and a boy with developmental trauma are among the claimants taking the UK government to court on Tuesday over the imposition of VAT on private education.
Senior judges are set to hear a case brought to the High Court in London by families and schools that argue the 20 per cent tax charge breaches their human rights.
Parents who hope legal action will force the government to reinstate the VAT exemption that was removed at the start of this year face being disappointed, however.
Lawyers not involved in the case said the claimants had a narrow path to victory — and that even if they did win, the government would not be compelled to reverse course on what is one of its flagship policies.
“I would describe the challenge as ambitious,” said Fiona Scolding KC, a barrister with broad experience in education and human rights law.
Tax lawyer Dan Neidle was blunter. “They are doomed”, said Neidle, formerly of Clifford Chance, who founded think-tank Tax Policy Associates. “Nobody has ever overturned a tax on human rights grounds in the UK courts,” he added.
The judges will be asked to consider whether the contentious policy is incompatible with principles enshrined by the European Convention on Human Rights — both in how it applies to the claimants’ specific circumstances and more broadly to other families.
Three separate challenges are being heard together. The first, funded by the Independent Schools Council, which represents more than 1,300 independent UK schools, has been brought on behalf of seven families, whose legal counsel includes heavyweight advocate Lord Pannick KC.
Another has been brought by children with special needs, and a third by a group of Christian faith schools and families of children who attend such institutions.
The three-day hearing will feature an A-list cast of judges and barristers, including Sir James Eadie KC, sometimes referred to as the “Treasury Devil”, who represents the government in important cases. Dame Victoria Sharp, Lord Justice Newey and Mr Justice Chamberlain comprise the panel of judges.
While the scale of the rises in school fees depends on how individual schools absorb the VAT charge, several of the claimants say they are already struggling financially and the increases will force the children to move. Although the specific circumstances of the families differ, their lawyers will argue the needs of each child cannot be met adequately by the state sector.
Among them is a girl with special education needs for whom changing school would “increase her risk of self-harm”, according to court papers. Another is an eight year-old boy with autism and developmental trauma who struggled in a state-funded primary.
The claimants include a girl who endured “severe bullying, predominantly from male students” at a mixed state school. Her mother says no state school in the catchment offers single-sex education, which she believes is in the best interest of the child’s safety and wellbeing.
Other challenges have been brought by children based on a need for education aligned with their religious beliefs, including a girl from the Charedi Orthodox Jewish community.
Court documents say her family relies “entirely on state support to cover their household outgoings, including rented accommodation” and are unable to pay a 20 per cent fee increase.
Another case concerns a French girl enrolled in a French school whose parents want their daughter to follow their state curriculum while they are living in the UK. “There is simply no alternative in the state sector that teaches the French curriculum,” lawyers led by Pannick said in written arguments.
The claimants maintain the policy had breached human rights including those to education and to non-discrimination.
Several education and tax specialists said the claimants had a better chance of persuading the judges that rights have been breached in their particular circumstances than securing blanket declaration that the entire policy is unlawful. But they said the plaintiffs had to overcome big hurdles even to win the narrower case.
The notion that “it’s discrimination for private education to cost more” was a “fundamental problem” with the case, Neidle said.
“Private education obviously costs more, because it’s private. I doubt they’re arguing that government has a duty to cover private school fees. So how is that not discrimination, but VAT is?” he added.
Even if the claimants demonstrate their rights have been breached, lawyers said that if they are to succeed they also need to demonstrate the negative impact on them has been disproportionate to the government’s broader aims.
The Treasury said: “We do not comment on ongoing litigation matters.
“Ending tax breaks for private schools will raise £1.8bn a year by 2029-30 to help deliver 6,500 new teachers and raise school standards, supporting the 94 per cent of children in state schools to achieve and thrive.
“Fewer than 0.1 per cent of pupils are expected to move schools this year as a result of ending tax breaks for private schools, set against over one million spare places in schools across the country,” it added.
One education silk said the case was “more an expression of outrage” rather than about having a “realistic prospect of success”. “They probably have a 10 per cent chance of winning,” they noted.
Moreover, it is not a foregone conclusion that any ruling in the claimants favour would have a practical effect. A declaration that the legislation is incompatible with human rights would not compel the government to backtrack.
It would, however, be damaging politically. “This government is apparently committed to human rights and it’s very unlikely, and would be shocking, for them to ignore the ruling,” said Paul Conrathe of Sinclairslaw, which is representing children bringing special needs claims.
Ane Vernon, head of education at law firm Payne Hicks Beach, said: “A human rights challenge is never going to be easy but I don’t think it’s hopeless — there are arguments that can be made.
“Even if successful, a challenge may not defeat the legislation, but could serve as a political pressure point.”
