Education Law Digest – Summer term 2026: In the Tribunal/Supreme Court

R (BYL) v Chancellor of the Exchequer [2026] EWCA Civ 170

The Court of Appeal dismissed appeals challenging the imposition of VAT on independent school fees, holding that the measure was compatible with Convention rights and that Parliament’s decision not to provide exemptions, particularly for low-cost religious schools, was justified.

The case concerned the removal of the longstanding VAT exemption for independent school fees under the Finance Act 2025, implementing a policy commitment “to end the VAT exemption… for private schools to invest in our state schools.”

The claim was brought by two groups, (1) children and the parents of children who attended private school operated by and for the Charedi Jewish community and (2) four Evangelical Christian schools together with their students and parents who adhered to a strictly Evangelical Christian curriculum.  Both felt that that an ordinary state education was not compatible with their religious beliefs. Both groups also argued that the imposition of VAT would render their schools unaffordable and undermine access to education consistent with their religious beliefs. The schools charged low fees and sought a carve-out for school with fees below a certain threshold. The Court accepted that “there are almost no state schools which offer [a Charedi education]… so [Claimants] do not have state alternatives which are religiously acceptable.”.

The Claims and grounds

The Claimants argued that the imposition of VAT was discriminatory and in breach of three essential provisions of the European Convention on Human Rights (“ECHR”):

1. Article 14 ECHR which provides that EHCR rights shall be secured without discrimination.
2. The right to education under Article 2 Protocol 1, which includes the State respecting parental rights to ensure that such teaching conforms with their own religious and philosophical views. The Claimants argued that the VAT charge would make the fees unaffordable and potentially lead to school closures which, when read with Article 14, would undermine this right;
3. The right to peaceful enjoyment of possessions, subject to public interest and national and international law under Article 1, Protocol 1. The Evangelical schools argued that the VAT charge would lead to a loss of future income and was in breach of Article 1, Protocol 1 when read with Article 14.

Such rights are not absolute and can be interfered with provided that it is justified and proportionate to do so.

Outcome

All grounds of appeal were dismissed. As the case was the first time that the new regime had been before an appellate court and had considerable significance for society, the Court of Appeal decided to undertake its own fresh proportionality analysis and considered anew the question of whether the Government had an objective and reasonable justification for its decision to not exempt low-cost schools from VAT. In terms of the outcome of the claim and grounds:

1. Article 2 Protocol 1 to the ECHR (right to education): The Court reaffirmed the limited scope of A2P1, noting that it guarantees access to education but not education of a particular type. Relying on established authority, it held: “There is no right to education of a particular kind or quality, other than that prevailing in the state”. Accordingly, the State is not required to fund or subsidise private education, the measure did not impair the “very essence” of the right, and access to state education (and the option of home schooling) remained available. The Court rejected arguments that VAT created an unlawful obstacle, emphasising that action making private schooling “more expensive… cannot be said to… impair the very essence of the right”.
2. Article 1 Protocol 1 to the ECHR (property): The A1P1 challenge was also rejected. The Court drew a distinction between (1) goodwill as a possession, and (2) future income expectations, which are not protected. It held that the Claimants’ complaint concerned “a loss of anticipated future income, which is not a ‘possession’”. Parents were not compelled to pay fees, and schools’ concerns about viability were speculative.
3. Article 14 discrimination: The Court accepted that the case engaged discrimination arguments, based on failure to treat religious groups differently. However, the key issue was justification and the court had conducted is own review and found the approach was justified. The Court accepted Government evidence that a carve-out would create unfair “cliff edges” between schools near the threshold, distort the market and incentivise fee manipulation, introduce avoidance risks (e.g. disguised “donations”), impose significant administrative burdens, and reduce revenue. The Court concluded that a fair balance had been struck, despite real impacts on Claimants. It acknowledged that the policy could “have a serious impact… if they are unable to afford private education”, however, alternatives remained available (such as state schooling or home education), the measure targeted general social policy objectives,  and Parliament was entitled to weigh competing interests. Ultimately, the Court found that “the Government [had] provided an objective and reasonable justification”.

The Court held that A2P1 was not breached, A1P1 was not engaged, and any discrimination under Article 14, if established, would be justified. This case confirms that the courts will not extend Convention rights to require funding or support for private education choices; Financial measures affecting education are assessed through structured proportionality, but with significant respect for Parliamentary judgment;  and Article 14 challenges to fiscal policy face a high threshold, especially where the measure is neutral and based on broad social policy. For independent schools, the decision underscores the limited scope for human rights challenges to tax policy, even where specific communities are disproportionately affected.

R (CHO) v Governing Body of Lonsdale School & Others [2026] EWHC 166 (Admin)

This case concerned a decision of a community special school to temporarily shorten the school week by reducing teaching hours on Friday afternoons. The parents of a child who attended the school sought a judicial review of the decision.

Background

The Claimant, a pupil with significant special educational needs including Duchenne Muscular Dystrophy, attended a community special school catering for pupils with complex physical and/or neurological impairments. In late 2024, the school experienced an unanticipated staffing crisis, losing approximately a quarter of its teaching capacity shortly before the Spring Term of 2025. Recruitment proved difficult due to notice periods and limited applicant availability. In response, the Governing Body adopted a temporary measure of closing the school at 1:30pm on Fridays, rather than 3pm, to allow staff planning time and maintain safe and effective provision during the week. This arrangement was subsequently extended term-by-term, before being reinstated to full hours once staffing levels stabilised.

Grounds of challenge

The Claimant advanced five grounds of challenge, including:

1. Disability discrimination, on the basis that the local authority had authorised reduced hours only at schools which exclusively taught disabled pupils and not at schools which predominantly taught non-disabled pupils. This was either direct or indirect disability discrimination which could not be justified;
2. Unlawful reliance on non-statutory DfE guidance on the school week;
3. As an alternative to ground 2, if the guidance permits a reduction in hours at special school but not mainstream schools then the guidance itself was discriminatory;
4. Breach of the Education (School Day and School Year) Regulations 1999, requiring a minimum of 380 session of education a year and two daily sessions, (where a “session” is an afternoon or morning; and
5. Failure to provide a “substantive high-quality” afternoon session as required by guidance.

Key findings and nature of the decision

The Court rejected the factual premise of the claim. It found that the decision was taken by the school, not the local authority; and was driven by staffing shortages, not financial considerations. The Court emphasised that “The decision to shorten hours… arose as a direct result of the unanticipated staffing challenges, and not from any need to cut funds”. The school had remained willing and financially able to recruit staff but was unable to do so due to market constraints.

Ground 1: The discrimination claim failed at the outset because it depended on incorrect factual assumptions. The Court concluded that the local authority had not made or authorised the decision and there was no policy of allowing special schools to cut hours to save money. Accordingly, the core allegation, that disabled pupils were treated less favourably through a cost-cutting measure, was not made out. The Court further indicated that even if advice had been given, it would have been difficult to characterise that as discriminatory “treatment” or a relevant PCP.

Ground 2: The Court also rejected the argument that the school had unlawfully departed from DfE guidance on the school week. It held that the guidance imposes a minimum expectation (32.5 hours) only for mainstream schools; and deliberately allows flexibility for specialist settings due to their differing needs and operational constraints. The Court rejected the Claimant’s interpretation that reductions were only permissible where justified by disability-related needs. Instead, schools were entitled to take account of operational realities, including staffing availability, in determining provision.

Ground 3: The Court upheld the lawfulness of the DfE guidance. It found that differential treatment between mainstream and special schools was justified because specialist settings face more complex operational demands, and pupil needs vary significantly, and a standard requirement would risk undermining safe and effective provision. The Court emphasised that shorter hours do not necessarily disadvantage SEND pupils, stating that “The shorter school week may be directly in their interests and to their benefit.”.

Grounds 4 and 5: The Claimant argued that the reduced timetable failed to provide a second daily session as required by the 1999 Regulations. The Court rejected this, holding that: “sessions” are not limited to classroom teaching in a SEND context, education includes social interaction, communication and therapeutic learning. In particular: “Special educational provision is, in principle, whatever is called for by a child’s learning difficulty”. The Court found that the school’s structured “social interaction time” constituted a valid educational session, aligned with EHCP outcomes. Alternatively, even if no such session existed, the staffing crisis amounted to “exceptional circumstances” justifying departure from the usual requirement.

Conclusion: The claim was dismissed on all grounds. The Court concluded that the school’s decision was lawful, proportionate and properly grounded in operational necessity. In practice, this confirms that schools retain operational flexibility to respond to staffing crises, Courts will scrutinise the true reasons for decisions, not asserted motivations, SEND provision is interpreted broadly, extending beyond formal classroom teaching, and non-statutory guidance allows context-sensitive application, especially in specialist provision. Most importantly, the case demonstrates that temporary reductions in provision will not be unlawful where they are genuinely necessity-driven, carefully considered; and directed toward maintaining safe and effective educational delivery. However, schools should ensure that such decisions are fully evidenced, documented and regularly reviewed, particularly where they affect vulnerable pupils.

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Take Me There

Mr F Lindsay v London Borough of Newham

Mr Lindsay, the Claimant, issued proceedings for unfair and wrongful dismissal after he was dismissed with immediate effect from his role as an English for Speakers of Other Languages Tutor when during a period of sick leave he was found to be working elsewhere.

The Claimant began his employment on on 1 September 2011. His contract of employment required him to work 25 hours per week during term time and to declare any private interests that may conflict with his employment. He was also subject to (1) an Employee Code of Conduct which prohibited him from undertaking any other work whilst on sick leave without authorisation and (2) to a disciplinary policy which provided that working whilst on sick leave was gross misconduct. In summer 2023 the Claimant was diagnosed with myasthenia gravis, a rare long-term condition which causes muscle weakness and fatigue and he was absent on four separate periods from April to September 2023. Each absence was supported by a fit note.

In April 2023 the Claimant was given a copy of the Code of Conduct. In September 2023, the Respondent became aware that the Claimant was working for a number of other employers and began an investigation. The Claimant was interviewed and confirmed that he had worked in four other roles whilst off sick, including running a chess club for primary school children, remotely teaching English to a group of teenagers and running a conversational club on Saturdays. The Claimant’s view was that these roles were less demanding than his work as a Tutor, were roles that he undertook outside of his working hours and that some of his colleagues were aware that he was working elsewhere. The Claimant attended a disciplinary hearing and was subsequently dismissed for (1) working for others whilst off sick and (2) not declaring those roles. He appealed but his appeal was not upheld.

Case law confirms that although it is possible for an employee to be signed off sick and in receipt of sick pay from one job whilst still working a second job, it will often lead to the employee’s dismissal. The key question for a tribunal is whether the employer’s decision to dismiss is in the band of reasonable responses.

The tribunal noted that the employer had a clear and reasonable Code of Conduct which prohibited an employee from any doing any kind of work whilst off sick. It also concluded that by representing that he was unfit to work via his fit notes and then working for others the issue of trust had been engaged. As such the employer was entitled to conclude that he had committed gross misconduct by destroying his employer’s trust in him and his claim for unfair dismissal failed.

The case illustrates the importance of having clear and reasonable policies and evidencing  that employees have read them.

Mrs Iwobi v City of London Academies Trust

The Claimant, Mrs Iwobi, was employed by the Respondent secondary school as a PE teacher from 1 September 2023 until her dismissal on 22 January 2024. Her employer stated that she had been dismissed due to poor performance but the Claimant alleged that she had been automatically unfairly dismissed for making a public interest disclosure and also brought claims for direct race and age discrimination, harassment related to age/race, victimisation and detriment for having made a public interest disclosure. All of her claims were dismissed.

At the material time the Claimant was 56 years old and based in the Respondent’s City of London Academy (CoLA) which had 1,600 pupils and 116 teachers, of which 46 were non-white and 48 were in their 20s, 31 were in their 30s, 23 were in their 40s and 15 were aged 50 or above. The Claimant identified herself as ‘black’.

The Claimant was an experienced PE teacher and was employed as ‘Second in Charge of PE’, a role which attracted a Teaching and Learning supplement.  The Tribunal noted that the Head of PE was seconded to another role which in effect made the Claimant first in command and that it was not clear that this had been discussed with the Claimant when she was appointed.

After attending an induction day on 3 July 2023, the Trust received the Claimant’s references, one of which was ‘satisfactory’. CoLA considered its position and decided to cautiously proceed with the Claimant’s employment but began keeping contemporaneous records of its interactions with the Claimant and scrutinised her more.

During her employment, the Claimant had weekly meetings during which a number of points were raised, including various performance concerns. The Claimant also had 19 learning walks, some of which the Claimant found to be excessive but which the tribunal concluded were reasonable as they raised health and safety risks, student supervision, curriculum delivery and leadership expectations. On 7 September 2023 CoLA began to monitor the Claimant following allegations that she was seen completing her own gym workouts rather than supervising the students. At her one-month review on 29 November 2023, the Claimant was given 3 headline targets, including that she lead by example in relation to health and safety. A number of colleagues raised concerns about the Claimant’s performance. At her 3-month review, the Claimant’s performance was assessed as unsatisfactory and a support plan was put in place which the Claimant felt was unfair.

Disclosures

On 1 December the Claimant raised a health and safety concern about a large Year 9 class which had SEND students. The Tribunal accepted that this was a public interest disclosure but noted that it had been resolved at the time as additional support from two Assistant Principals had been provided. On 6 December the Claimant made a further disclosure when she complained that she had been left alone on duty when two students began fighting. The tribunal accepted that these were protected disclosures which meant that the burden of proof shifted to CoLA to show that the disclosures were not the reason for the detriment and dismissal.

On 7 December the Claimant had a meeting to discuss her support plan and went off sick with stress later that day, returning on 15 December. On 5 January 2024 the Claimant submitted a grievance, raising a number of complaints including that the number of learning walks had been disproportionate and that she had been undermined. Crucially, the complaint did not make any reference to age or race discrimination and at the grievance meeting the Claimant did not assert that her treatment was because of her age, race or because of any health and safety disclosures. Her main concern was that she had been put on a support plan. On 22 January 2024 the Claimant was invited to a meeting and without warning was dismissed with immediate effect due to underperformance, health and safety breaches and curriculum deviations and was escorted off the premises. As a short-service employee, she was not given the right to appeal. Nonetheless, on 22 April 2024 the Claimant appealed and was offered a meeting which she declined. On 29 April 2024 the school commenced a modified grievance process and concluded that whilst it’s HR process could be improved, there was evidence of underperformance.

The tribunal concluded that, although there had been some detriment, in particular the manner of dismissal which it described as’ brutal’, these did not take place because of her age, race or her disclosures (one of the people who the Claimant alleged harassed her was unaware of the disclosures). As she had less than two years’ service her employer was not required to dismiss her fairly and its probation policy permitted dismissal in such circumstances. There was no statistical or other evidence of age discrimination. The tribunal noted that a younger member of staff had had 24 learning walks but concluded that the reason for the Claimant’s was the reference and subsequent genuine and documented performance concerns, not the Claimant’s race. There was evidence of a personality clash with another member of staff but there was no evidence that this was due to a protected characteristic.

The tribunal was also somewhat critical of the Claimant’s use of AI to generate her witness evidence, noting that it resulted in ‘generic descriptions rather than facts’ and ‘unsubstantiated and at times false allegations’.

The case shows the importance of having a probation policy which expressly permits the dismissal of short-service staff and having documented evidence of poor performance. The evidence showed that performance concerns had been documented before the disclosures and grievance were raised and performance was the reason for the dismissal.

Probation policies will become particularly important from 1 January 2027 when the right to claim unfair dismissal will apply to all employees with six months’ service or more.