Labour’s proposal to impose VAT on private school fees from January is facing a High Court legal challenge on grounds that it breaches human rights law.

Lawyers have argued that the policy discriminates against children with special educational needs and disabilities (SEND) and have threatened legal action if the policy is not withdrawn.

The legal challenge, spearheaded by Sinclairslaw, claims that imposing VAT on private school fees could force SEND children out of private education as their families may no longer be able to afford the increased costs. The state sector, which is already struggling to meet the complex needs of these students, would be unable to provide the necessary support, the lawyers argue.

Paul Conrathe, senior consultant solicitor at Sinclairslaw, criticised the policy, stating: “It is remarkable that the Government is pressing ahead with this punitive tax that will have a devastating impact upon the education and welfare of children with special needs. These ill-thought-out plans will not only harm children with special needs; they are plainly a violation of their human rights to education and freedom from discrimination.”

The challenge is being brought on behalf of a single parent and her daughter, rather than as a class action, and is intended to serve as a test case to potentially block Labour’s VAT plans. The legal argument is based on Article 2 of Protocol 1 of the European Convention on Human Rights, which states that “no person shall be denied the right to education.” When read alongside Article 14, it includes the right not to be disadvantaged in education on grounds such as sex, race, religion, or in this case, special needs.

The policy has already drawn significant criticism, and further legal claims related to military families and those attending faith schools may be forthcoming. Sinclairslaw previously won a landmark case against the government in 2022 over its failure to protect care homes during the early stages of the pandemic.

Labour has defended its VAT plan, stating that children with an Education and Health Care Plan (EHCP), which can cover private school fees, will be exempt. However, of the 111,000 SEND pupils in private schools, fewer than 8,000 have an EHCP, and obtaining one can take up to two years due to council backlogs. Bridget Phillipson, Labour’s Education Secretary, has previously admitted that the current EHCP process is “broken” and in need of reform.

The pre-action letter, sent to HM Treasury on Friday night, warns that if the VAT legislation is passed following the Budget on 30 October, the law firm will seek an expedited hearing in the High Court before the policy takes effect in January. Sinclairslaw also plans to launch a crowdfunding campaign to support the legal challenge, with costs potentially reaching several hundred thousand pounds.

Conrathe emphasised the grassroots nature of the challenge, saying: “We are launching a crowdfunder because this case is not backed by some rich person who went to Eton or Harrow, this case will be funded by the great British public.”

A government spokesman responded, stating: “We do not comment on ongoing legal cases.”