The Independent Schools Council (ISC) – a lobby group representing more than 1,400 private schools – filed a judicial review claiming that Labour’s flagship education policy is discriminatory.
But a leading education lawyer has told The i Paper that the legal challenges are unlikely to stop the policy in its tracks and parents should prepare for fee rises at schools as planned.
Six families have filed a judicial review to the High Court challenging the introduction of the VAT policy on primary and secondary education at private schools.
There are six case studies including children with SEND, a vulnerable girl in in a single-sex school, minority Jewish and Muslim families and foreign nationals in bilingual schools.
“It is to protect the rights of these families, who are having their choice removed from them by this policy, that we are seeking a declaration of incompatibility,” she added.
They argue that the introduction of VAT impedes access to education at independent schools and is incompatible with the right to education guaranteed by Article 2 of the First Protocol of the European Convention on Human Rights.
The families seek a declaration of incompatibility under section 4 of the Human Rights Act on the basis that the amendments to the Value Added Tax Act 1994 are incompatible with ECHR rights.
Will fee rises go ahead from January?
Parents have been urged to expect fee rises at private schools in 2025 despite the ISC’s legal challenge.
Asked whether it could have an impact on fee rises from January, he said: “I don’t think it will. I think the policy is going ahead as planned.”
“What parents can expect is that they will be charged VAT on their school fees,” Lewis said, adding that they “need to know what schools plan to do in relation to fees as a result of that”.
However, it is unlikely that private schools would reverse mid-year fee rises that have already been set out.
Could the legal challenges reverse Labour’s policy?
However, research by Mishcon de Reya has not found any successful judicial reviews of a finance act.
“It would put the government in an uncomfortable position to have a key piece of legislation declared as incompatible with the European Convention,” he said.
The former Tory government’s controversial Rwanda legislation was found to be fundamentally incompatible with the UK’s human rights obligations. This did not strike down the legislation in itself but it led to the Government reconsidering parts of it.
But he continued: “I’m not aware of any successful judicial review of a finance act. There might be one but it’s very difficult to prove a negative.
Robinson, from the ISC, said: “ISC’s legal action is focused on defending the education of children whose families have chosen independent schooling, but who may no longer be able to do so as a direct result of this unprecedented education tax.
A Treasury spokesperson said: “We do not comment on potential litigation matters.”
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