THE HEADLINES

• The Labour Government has published draft legislation for applying VAT (20%) on independent school fees and imposing full business rates on independent school buildings from 1 January 2025
• Many children with special educational needs are educated in independent schools because local state provision is unable to meet their needs.
• This extra tax burden will force many children with special educational needs out of their schools into unsuitable placements in state schools – and mid-way through the academic year.
• The Government’s economic justification is fundamentally flawed and the timing (January 2025) ill-considered and cruel.

MY STORY

I solo-parent two children aged 4 and 12 years old. I am from a working-class background: my mother served in the police and my father is an ex-veteran of the armed forces and was a prison officer. I work as a psychotherapist and as a manager of a small charity that seeks to eliminate the unnecessary use of restrictive practices in health, social care and education services.

My daughter Addison (my eldest child) has been identified as having special educational needs since the age of 4. She has dyspraxia, hypermobility and Autism. Addison was educated in state primary schools but increasingly found the environment over-stimulating and the curriculum inaccessible. She really struggled to navigate social situations. Autistic children are 46 times more likely to experience school distress than their peers, and Addison became too distressed to regularly attend.

Fearful of criminal attendance sanctions imposed by the government, I am ashamed to say that I often forced Addison into school. Her mental health deteriorated and during Year 5 & 6 her school applied for an EHCP (a document which would require the local authority to fund the special educational provision which Addison requires). The school had already sought an Ed Psych Report, and I had attained a psychology report that indicated Addison needed a school setting with small class sizes and an environment that she could manage. Meanwhile, I attended the local high school Open days hoping to find a school that could meet her needs. I was told by a senior member of staff they “would not be the right school for Addison”.

Like many children who have submitted EHCP applications to Kent County Council, Addison’s was rejected. Unbeknown to me the Local Authority was in complete disarray in providing SEN: it has a £140m deficit in its special needs budget and had a damning Ofsted and CQC Inspection in September 2022 which noted – “Parents confidence in the local area’s ability to meet their children’s needs is at an all-time low.” (https://www.kentonline.co.uk/kent/news/damning-report-into-special-educational-needs-failings-in-ke-276772/)

Not wishing to cause Addison further trauma, my family and I felt we had no choice but to send Addison to an independent school. Rochester Independent College describes itself as ‘an alternative school’. It is 50 mins drive from our house, but is the closest school that could provide the right support. Addison is now thriving, and her distress is gone. Even with Addison’s 20% art scholarship, it is exceptionally difficult to pay the school fees, and we share the burden between me and my parents.

I have set up this crowd funder because like many other children with SEN, Addison has been forced out of the state sector due to systemic failings. She is traumatised by her time in a school that could not meet her needs and has been failed locally by Kent County Council. Now the government is effectively forcing SEN children out of their schools with barely any notice - we simply cannot afford to keep Addison there. It feels as though this policy has been rushed through with no consideration given to the SEN community yet again.

About the case

The Labour Government has published draft legislation for applying VAT (20%) on independent school fees and imposing full business rates on independent school buildings from 1 January 2025. There will be an exemption for those children with an Education Health and Care Plan (EHCP). But only a very small minority of children with special educational needs have EHCPs. The legislation is expected to go through Parliament this Autumn (2024). This is a tax on education with many harmful consequences. In particular, there is no planned relief for students with Special Educational Needs (SEN) who do not have an EHCP, and for whom education in the independent sector is the only viable option.

According to the Government’s own figures, in English independent schools in 2023/24, 5.7% of pupils have an EHC plan and 16.7% have SEN support – a greater proportion than in mainstream education. The Independent Schools Council estimates there are approximately 50 specialist ISC affiliated schools that cater wholly or mainly for children with SEN and disabilities. Labour’s tax raid will mean that many of these schools will be forced to close. Since the announcement of the policy, a number of independent schools have already announced their closure citing the imposition of VAT on school fees – including a family-run primary school where a third of pupils had special educational needs. Beyond causing school closures, the policy will result in higher fees and a significant reduction in the financial support offered to students in the independent sector, including many children with SEN, who will be forced to seek places in state schools. The chances of those children getting places in state schools able to cater for their particular needs are slim

What is the legal challenge?

The Courts have recognised that exemption from VAT in the field of education “is to ensure that access to educational services is not hindered by the increased costs that would result if those services were subject to VAT” (SAE Ltd v. HMRC). The justification for this exemption is because educating children is an activity carried out in the public interest.

As a result of the Human Rights Act 1998 Parliament has committed the State to upholding fundamental human rights. One of those rights is the right to education. This is expressed in the European Convention of Human Rights thus -

Article 2 of Protocol 1 :-

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

Article 14 of the European Convention of Human Rights is a prohibition on discrimination including in relation to the above right to education. For the very many children with special educational needs but without an EHCP, the imposition of VAT on private school fees will have a particularly prejudicial or disproportionate impact because, in comparison with their peers without SEN, it is less likely that the state sector, to which they may be forced, will be able to be meet their educational needs.

Where an Act of Parliament violates human rights, a victim of that violation can apply to the Court for a Declaration that the legislation is incompatible with human rights. The effect of such a Declaration is to remit the legislation back to Parliament for it to consider whether and how the defective legislation can be made human rights compliant.

My lawyers have written to the Government explaining that the proposed legislation is in breach of human rights. They have warned that if the legislation is passed, I will challenge it in the Courts.

As the Government has made the imposition of VAT on private school fees a manifesto commitment, I do not expect them to back down. The new law removing the VAT exemption on private school fees should receive Royal Assent at the end of October and come into force in January 2025. I need to prepare my case now so that I can commence proceedings at the end of October. I would hope that the Court would hear the case before the end of the year so that the damaging and harmful impact of a mid-year move can be avoided by children and their families.

MY LEGAL TEAM

I am being advised by Paul Conrathe, a human rights solicitor at the education law firm, Sinclairs law. Jeremy Hyam KC and Tom Cross, who are leading human rights barristers, are providing specialist advice and representation.

COSTS

It is very hard at this early stage to predict what the final costs of this case will be. There are my legal costs and those of the Government (if I lose). What is clear is that at this stage a lot of work has to be undertaken to prepare a case that can be commenced urgently. I need to front-load the case with my evidence at the outset. I am advised that I need to raise £100,000 to be able to do that. If I lose the case, my bill could be in the region of £350,000 and maybe more.

AND FINALLY –

I am bringing this case because my daughter is directly affected by this proposed punitive tax. I am also bringing the case because I know that thousands of children with special educational needs in independent schools are likely to be harmed. A win in this case is, however, not just a win for children with special needs. It is a win for everyone. The impact of this punitive tax will be felt by every family in independent schools. It will also be felt by children in mainstream schools which have to accommodate more pupils. If I win it will also be because the Government’s reasons for discriminating against special needs children will be shown to be not good enough to justify that discrimination. The whole scheme will be called into question and will need to be reconsidered.

Whether you are a parent of a child with special needs or if your child has none, and whether or not you are an independent school – please donate to this case. We have an opportunity to make the Government see sense and place the welfare of children before ideology and flawed economics.