A High Court challenge to the government’s imposition of VAT on private school fees this week focused on whether children have the legal right to attend fee-paying schools.

The claim against chancellor Rachel Reeves is being brought on behalf of seven children attending independent schools who may be unable to afford higher fees. The claimants’ parents want them to attend independent schools for several reasons, including special educational needs (SEN), religious beliefs and the alleged need for single-sex education due to past bullying.

Lord Pannick KC, for the claimants, said that Labour’s imposition of value-added tax on independent primary and secondary school fees is ‘unprecedented’.

‘The consensus position of all other Council of Europe states is to exempt all educational services from sales tax, without distinction between state and independent schools,’ he said. He argued that the measure is a breach of the European Convention on Human Rights Article 2 of the First Protocol (A2P1), the right to education.

The government argues that the claimants would be supplied with a place at a state school free of charge if one were sought, adding: ‘That alone is sufficient to dispose of the challenge.’

But Pannick suggested that the response ‘ignores the core right enjoyed under A2P1: the right of access to all those educational institutions which exist in the state’.

The claimants were challenging ‘the state’s imposition of a charge on the provision of educational services to which the claimants have a right of access’, he said.

On Tuesday, the first day of a three-day listing, it was also argued that the policy amounted to discrimination. Jeremy Hyam KC said children with SEN – as two claimants have – ‘will be going into a system which either will not meet, or is highly unlikely to meet, their needs’.

The tax could also constitute religious discrimination, it was claimed, against Charedi Jewish children – who, as visibly Jewish, are likely to face antisemitism and discrimination in non-Charedi schools – and children of Islamic faith, who are unable to access an Islamic education programme in state schools.

In a response on Wednesday, Sir James Eadie KC, for the chancellor, told the court the government was under no obligation to subsidise private education, pointing out that parents who send their children to private school must pay ‘their fair share’ to raise standards for the 94% of children who attend state schools.  

The government said making exceptions for the individual pupil claimants would be both ‘unfair in principle’ and ‘administratively unworkable’.

A three-judge panel of Dame Victoria Sharp, Lord Justice Newey and Mr Justice Chamberlain heard the case. Judgment was reserved.