Labour’s private school tax raid ‘likely illegal’

[Zizzagaaaaaww]

Thought some may like to read this article

archive.ph/i1XD3

Sir Keir Starmer’s planned VAT raid on private schools is likely to breach human rights law, The Telegraph can reveal.
The Labour leader risks falling foul of European Court of Human Rights (ECHR) law <a class="break-all" href="https://archive.ph/o/i1XD3/www.telegraph.co.uk/money/tax/labour-private-school-tax-moronic-policy/" rel="nofollow" target="_blank">over his party’s flagship policy, one of Britain’s top constitutional and human rights lawyers has warned.
Lord Pannick, who has taken on some of the UK’s most high-profile court cases, backed legal advice warning that making private schools subject to VAT was likely to breach ECHR law.
He told The Telegraph: “It would be strongly arguable that for a new government to impose VAT on independent schools would breach the right to education.

“That is because all other educational services will remain exempt from VAT and the charging of VAT on independent schools alone is designed to impede private education, and will have that effect.”

The KC and crossbench peer said that the Labour policy risked breaching two articles in the ECHR which protect the right to education.
He referred to legal advice written in response to Labour policies as far back as the early 1980s, when the country’s most senior lawyers warned that plans to end tax exemptions for private schools or abolish the institutions altogether would likely breach international human rights law to which Britain is signed up.
Previous leaders of the party have floated the idea of taxing private schools as part of plans to integrate them into the state sector. Under former party leader Michael Foot, the Labour manifesto of 1983 pledged to “charge VAT on the fees paid to [private] schools”.
The policy to abolish the schools was eventually shot down by senior lawyers, who argued it could be at odds with the ECHR and spoke specifically about the risk of imposing VAT.
While Sir Keir has ruled out abolishing private schools, he plans to force the institutions to pay business rates and 20pc VAT on tuition fees.
In an unearthed legal opinion from 1987, seen by The Telegraph, the late Lord Lester and Lord Pannick, prominent human rights lawyers, concluded a government “could not lawfully prohibit fee-paying, independent education or remove the benefits of charitable status or impose VAT in respect of such education” while a member of the court.
A foreword to the opinion written in 1991 by Lord Scarman, who served as a Law Lord in the precursor to the Supreme Court, said it would “encourage a challenge which could be mounted by taking the argument to the [ECHR]… if ever a government should seek to abolish or discriminate against [private schools]”.
The opinion was jointly written by Lord Lester and Lord Pannick as advice for the Independent Schools Council (ISC) and later published in its journal. Lord Pannick confirmed his belief that the argument still stands today.

There may be a rise in future applications for EHCPs, and that isn't a bad thing given that the process requires children to be properly assessed. It's always a bit of a worry if a child has unassessed SEN that something is being missed, e.g. sensory problems.

I doubt, however, that there will be a "rush". Parents will quickly discover that the fact that you ask for an EHCP doesn't mean that you get one, or even necessarily that you get past the first base of qualifying for an EHC needs assessment. It certainly doesn't guarantee that the private school of your choice will be named in the EHCP. If your child is currently in a mainstream private school, there's a very strong likelihood that the EHCP will name a mainstream state school.

But this will change under Labour l think who are more committed to SEND dc.

We applied last year and had one by Christmas.

@Scruffily the average time for EHCP in our area is over a year. Local authorities don’t seem to give a shit that the rule is 20 weeks (or they are as underfunded and understaffed as the schools)

If a parent has chosen a small private school as it can cater for their child’s SEN unlike the local state school, where is the equality for them?

That may be the case but applications are already happening. You may want to think it won't have an impact but the data will be there soon enough. At present we only have anecdotal stories but if you extrapolate the 10 x DC in my daughter's year group who have started applying, across the whole sector then you can see how the numbers stack up. The state can't cope with the current number of applications, let alone any increase.

And are having their needs met without an EHCP. Like the majority of children with SEND in mainstream schools (I mean, that is arguable, but the LA does argue it, so it is relevant to the assessment of whether an EHCP is given). I know there are differences in provision (that is what is being paid for after all), but SEND does not automatically equal EHCP in maintained schools, not by a long shot.

Only having their needs met because their parents are paying for 1-2-1 support, not because they don't have needs!

And a child costs a state school money whether they have a funded EHCP or not. So having more pupils with SEN in state schools is not going to help them

"Tax raid" 😂 it's VAT on a luxury item, which applies to thousands of goods and services we buy every day. Tax raid FFS.

VAT isn't a luxury tax "FFS"

But they won’t get an EHCP unless their disabilities are severe enough to warrant one.

My Dd has an EHCP. Her needs could only be met in a specialist state school. If dc are doing OK then they don’t need an EHCP.

Then hopefully they will have the evidence required for the needs assessment.

This had to be one of the more ridiculous statements I’ve read. If there was equality in the state system you might have a point, but there isn’t. Anyone choosing a selective state school is opting out of equality because that option isn’t available to all. Anyone choosing a faith school is opting out of equality because those school places are not available to all. Anyone not choosing their nearest state school, but choosing a higher performing one, is opting out of equality. There is huge inequality within the state system.

"They struggle now dealing with a tiny fraction of that amount"? That's simply not true. There were 138,200 initial requests for EHCPs in 2022.

There simply is no reason to believe that the parents of every child in state schools with SEN would apply for EHCPs. The majority of children with SEN don't qualify, and if your child isn't going to qualify there is no point applying. Even if they do, a large proportion would be put off by the realisation that they stand an excellent chance of going through the whole process and not getting a private school named in the EHCP.

Even if every single parent applies, the cost of a one-off bump in applications spread amongst all local authorities is not going to outweigh the tax revenue realised.

@ArseInTheCoOpWindow the ok can be a very low bar. Many children are currently being failed in state schools no matter how hard the schools are trying

Where is the funding coming from for this extra SEND support which Labour is apparently so keen on?

They are talking about making all state schools fantastic.

@Scruffily our LA have pretty much said they are rationing EHCPs. They also got judged inadequate for SEN provision so no surprise really

How will they fund this? It’s not coming from VAT on school fees.

Before judging, reflect on the fact that the opinion was written 40 years ago and there have been some major changes subsequently. In particular, a little matter of leaving the EU which was one of the main barriers in the way of this policy.

Children with EHCPs naming independent non-specialist schools are usually there because there is evidence showing that it is essential in order to meet their needs - most frequently because they need small classes. If their school closes, the local authority will still have to place them in a school with small classes, which is likely to be another private school, not a mainstream one.

I know it can. Mine was ‘ok’

But if a dc is managing in a school private or otherwise then the chance of an EHCP is low. Mine was a school refused. Tons of evidence from psychologists, CAHMS, psychiatrists. I think there were 84 pieces.

She still got refusal to assess initially.

A stat I’m sure will change if people start applying for needs assessments just to avoid paying VAT.

Most children with SEN in schools don’t have an EHCP because they don’t need one.

@ArseInTheCoOpWindow and how is this policy going to help DC like yours? How much time and resources do you think went into that process, for just one child?

What next academic year? Or in their 2nd term? Too late for DC at existing indi schools.
Apart from VAT how are they promising to fund making all state schools "fantastic"?

Exactly. People, it would seem, are voting for change. Even if you think that is counterproductive.