AS TO THE ADMISSIBILITY OF
Application No. 14137/88
by P.D.
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
M. F. MARTINEZ
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 September
1987 by P.D. against the United Kingdom and registered on 23 August
1988 under file No. 14137/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1945 and resident
in Hereford. She is represented before the Commission by Mrs. J.
Macfarlane, Principal lecturer in law, Anglia Higher Education College.
A. The particular facts of the case
The facts of the present case, as submitted by the applicant,
may be summarised as follows:
The applicant has a daughter, L., born in 1972, who has
Downs syndrome. From the age of five she been educated solely in
segregated schools against the applicant's wishes. She contends that
her daughter should be educated in a Slow Learner Unit of a mainstream
school, which units exist locally.
In September 1984 the local education authority (LEA),
apparently following the report of their educational psychologist,
issued its assessment of Louise's educational needs in a "statement of
special educational needs", pursuant to sections 5 and 7 of the
Education Act 1981. The assessment was as follows:
"L. is a Downs Syndrome child with severe
learning difficulties, the most acute of which are her poor
use and comprehension of language...
L. requires a developmentally based curriculum
and an educational environment in which high priority is
given to the development of her general language skills.
She should be encouraged to apply skills learned in one
situation to other similar situations as much as possible.
Concepts of time, money and road safety still need much
improvement, as do her general self-help although she has
made some progress in this area.
Small group provision continues to be necessary and
regular opportunities for individual teaching are also
required...
L. should be educated at a school where the
curriculum and teaching expertise are suitable for the needs
of a child with L.'s individual needs and with overall
severe learning difficulties. Such a school is the Barrs
Court School and L.'s current placement there should
continue."
The applicant's appeals to a local appeal committee (section 8
(1) and (2) of the 1981 Act) and the Secretary of State for Education
(section 8 (6) and (7) of the 1981 Act) failed. At the applicant's
request a second assessment was made with the same result. Further
appeals to the local appeal committee and the Secretary of State also
failed. The latter held on 12 March 1987, after carefully considering
all the evidence, that there were no grounds for amending L.'s
educational assessment and he confirmed her placement at a special
segregated school for disabled children.
Between May 1986 and May 1987 the applicant, concerned over
damage to her daughter's social and intellectual development in a
segregated environment, kept L. at home and taught her herself.
The LEA refused to provide a teacher for home tuition. After the
Secretary of State's decision of 12 March 1987 the applicant felt
constrained to send L. to the special school pending an
application to the Commission. When L. reached 16 years of age,
beyond statutory school age, the LEA agreed to the applicant's request
to place L. in a special class of a technical college as of April
1989 on a trial basis.
B. The relevant domestic law
Section 8 of the Education Act 1944 (the 1944 Act) creates a
statutory duty on local authorities to provide suitable primary and
secondary full-time education "to afford for all pupils opportunities
for education offering such variety of instruction and training as
may be desirable in view of their different ages, abilities, and
aptitudes ...". In particular local authorities must provide
appropriate special education for disabled children. This duty was
reinforced by the Education Act 1981. The LEA's duties are
enforceable, pursuant to a parent's complaint or otherwise under
sections 68 and 99 of the 1944 Act, by the Secretary of State for
Education. He may seek an order of mandamus against a recalcitrant
LEA. A subsidiary obligation is placed upon parents to secure
suitable education for their children in accordance with their age,
aptitude and ability. This latter obligation is ultimately
enforceable through criminal proceedings (sections 36, 37 and 39 of
the 1944 Act). Section 76 of the 1944 Act requires education
authorities to have regard to parents' wishes so far as is compatible
with the provision of efficient instruction, and the avoidance of
unreasonable public expenditure.
By virtue of the Education Act 1981 (the 1981 Act) LEAs are
required to meet the special educational needs of handicapped children
in their area but, if possible, not to segregate them from other
children, provided that parents' wishes have been taken into account
and provided that this is compatible with the making of the special
educational provision required, the provision of efficient education
for the other children and the efficient use of resources (section 2
of the 1981 Act). Section 5 of the 1981 Act enables the LEA to assess
the special educational needs of disabled children, in respect of
which assessment the parents may make representations and submit
written evidence. If the LEA decides that a child's special
educational provision is called for, they must make a statement of the
child's special educational needs and make suitable arrangements to
meet them (section 7), even if it means placing the child in a school
outside the LEA's jurisdiction (section 6 of the Education
(Miscellaneous Provisions) Act 1953). Special educational assessments
are subject to periodic review. Parents may appeal against the LEA's
statement to an appeal committee which may confirm the special
educational provision contained in the statement in the light of the
circumstances of the case at the time of the hearing of the appeal, or
remit the case to the LEA for reconsideration in the light of the
committee's observations (section 8 (1), (2) and (4)). Appeal
committees comprise three, five or seven members, drawn from the local
education authority and people who have experience in education and
are acquainted with educational conditions in the area (Schedule 2
Part I of the Education Act 1980).
Following the confirmation or remit of a case, the parents may
finally appeal to the Secretary of State for Education who may
confirm, amend or annul the LEA's statement (section 8 (6) and (7) of
the 1981 Act). These appeals are normally dealt with by Ministry of
Education civil servants, not the Minister himself. There is no right
to an oral or adversary hearing with this form of appeal.
Judicial review of the Secretary of State's decisions, or any
binding decision of an appeal committee, will lie on the "Wednesbury
principles", i.e. if they are tainted by irrationality, illegality or
procedural impropriety. An action for a declaration or damages for
breach of statutory duty may also be available.
In general LEA's must respect parental choice of schools
(section 6 of the Education Act 1980). Section 7 (1) of the 1980 Act
provides for an appeal by parents against an LEA's decision concerning
school admissions or a school's refusal to accept a pupil. This
appeal is to the appeal committee, but section 7 (5) of the 1980 Act
renders the appeal committee's decision fully binding on the LEA or
school concerned.
COMPLAINTS
The applicant claims to be a victim of a violation of Article
2 of Protocol No. 1 to the Convention which, in her view, guarantees
the provision of a reasonable range of practical choices within the
State school system for parents in respect of their children's
schooling. She submits that this has not been met in the present
case. The applicant holds deep philosophical convictions about the
type of schooling best suited to her daughter's needs and believes
that segregated education is inappropriate and harmful in the
long-term to her due to its overall fundamental direction. The
assumptions about L.'s learning potential underlying segregated
education are wholly rejected by the applicant. The applicant
recognises that L. requires an education with a low teacher/pupil
ratio, but this could have been provided by the specialist units
within the integrated, mainstream schools, thus involving no
unreasonable public expenditure and contributing to efficient
instruction and training.
The applicant also claims that she is a victim of a breach of
Article 14 of the Convention, read in conjunction with Article 2 of
Protocol No. 1, because as a parent of a child with learning
difficulties she has fewer educational options to choose from than
parents of normal children. L.'s education offers her less
intellectual and social opportunity than that which a child without
disabilities could expect within the United Kingdom State education
system. The continuing segregation of disabled children has no
objective or reasonable justification in the light of contemporary
knowledge, as demonstrated in countries like Denmark and Italy, and is
disproportionate. The rights and freedoms of able children in a
mainstream school would not be infringed, instead they would benefit,
their understanding and tolerance being enhanced.
The applicant contends that the refusal to provide L. with
a place in a mainstream school during her compulsory schooling and the
manner in which the LEA has handled L.'s case constitute an
unjustified interference with the quality of her family life, contrary
to Article 8 of the Convention.
Finally, the applicant complains of a breach of Article 6
para. 1 of the Convention on its own as regards allegedly unreasonable
delay in the whole proceedings, and together with Article 14 as
regards the absence of any decision making powers of the local appeal
committee concerned under section 8 (1) and (2) of the Education Act
1981, compared with the decision making powers of this committee when
dealing with other education appeals concerning school placement under
section 7 of the Education Act 1980.
THE LAW
1. The applicant has complained that the British education
authorities have failed to respect her right to have her disabled
daughter, L., educated in accordance with her philosophical
convictions, i.e. educated in a normal school. She contends that
there is a lack of adequate choice of State schools for parents of
disabled children and claims to be a victim of a violation of Article
2 of Protocol No. 1 (P1-2) to the Convention which reads as follows:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right
of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions."
The Commission leaves open the question whether the
applicant's disagreement with the education authorities about the
appropriate school for L. could be said to be based on
deep-founded philosophical convictions rather than a difference of
view as to the best way of providing L. with an education. Even
assuming that the applicant's philosophical convictions may be at
issue in the present case, the Commission refers to the dominant
character of the child's right to education in Article 2 of Protocol
No. 1 (P1-2) to the Convention (cf. Eur. Court H.R., Kjeldsen, Busk
Madsen and Pedersen judgment of 7 December 1976, Series A no. 23,
p. 25, para. 52).
The second sentence of Article 2 (Art. 2) requires the State in
exercising any educational function to ensure that the education and
teaching of a child is as far as possible in conformity with the
parents' religious and philosophical convictions. This requirement
extends not only to the matter taught but to other aspects of the
educational function (cf. Eur. Court H.R., Campbell and Cosans
judgment of 25 February 1982, Series A no. 48, p. 14, para. 33). It
does not, however, require the State to provide special facilities to
accommodate particular convictions though it may affect the use of
existing facilities (No. 7782/77, Dec. 2.5.78, D.R. 14 p. 179). In
this context reference should be made to the United Kingdom
Government's reservation to this provision, accepting the second
sentence of Article 2 (Art. 2) "only so far as it is compatible with the
provision of efficient instruction and training and the avoidance of
unreasonable public expenditure".
The Commission notes that, in the same vein as the
aforementioned reservation, section 2 of the Education Act 1981
provides that a child with special educational needs should be
educated in an ordinary school if that is compatible with the special
education the child requires, the provision of efficient education for
other children at the school and the efficient use of resources.
The Commission observes that there is an increasing body of
opinion which holds that, whenever possible, disabled children should
be brought up with normal children of their own age. The Commission
recognises, however, that this policy cannot apply to all handicapped
children. It further recognises that there must be a wide measure of
discretion left to the appropriate authorities as to how to make the
best use possible of the resources available to them in the interests
of disabled children generally. While these authorities must place
weight on parental convictions, it cannot be said that the second
sentence of Article 2 (Art. 2) requires the placing of a child with severe
learning difficulties in a general school (with the expense of
additional teaching staff which would be needed) rather than in an
available place in a special school.
In the present case the Commission notes that the expert
opinion of the education authorities considered that L. had severe
learning difficulties requiring a very small protective teaching group
which could not be provided in a normal school. The Commission finds
no evidence that this opinion was arbitrary or unreasonable. Nor does
it find any evidence that the LEA concerned refused to consider the
applicant's views or based their decision on reasons other than that
of giving L. an as effective education as possible. The
Commission concludes that the present case does not disclose any
appearance of a violation of Article 2 of Protocol No. 1 (P1-2) to the
Convention. It follows that this aspect of the application is
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has also complained of discrimination, in breach
of Article 14 (Art. 14) of the Convention read in conjunction with
Article 2 of Protocol No. 1 (P1-2), insofar as there are allegedly
fewer educational options for disabled children compared with able
children within the State school system. However, the applicant has
not substantiated this claim. The Commission notes that the relevant
legislation encourages the integration of handicapped children in
normal schools, but provides that their special needs be met, if
necessary in specialised institutions. The Commission finds no
element of discrimination in such a policy, but rather the contrary,
the special requirements of certain disabled children being catered
for where necessary. In these circumstances the Commission concludes
that this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has next contended that the refusal to provide
L. with a place in a mainstream school, full-time, was in breach
of her rights under Article 8 (Art. 8) of the Convention, the relevant
part of which reads as follows:
"1. Everyone has the right to respect for his ...
family life ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society ... for the protection of ... the rights and
freedoms of others."
However, the Commission notes that the educational authorities
considered the applicant's views even if they were unable to fulfil
them. It would not appear, therefore, that these authorities have
failed to respect the applicant's right to respect for family life.
Moreover, even assuming that the refusal to provide full-time normal
education for L. could be said to have been an interference with
the applicant's Article 8 (Art. 8) right, the Commission finds such
interference justified, as being in accordance with the law and
necessary in a democratic society for the protection of the rights of
others, namely L.'s right to a suitable education for her
disabilities. The Commission concludes that this complaint is also
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant has complained that the delays in L.'s
educational assessment were unreasonable and in breach of the
"reasonable time" requirement laid down in Article 6 para. 1
(Art. 6-1) of the Convention, the relevant part of which provides as
follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law ..."
However, the Commission finds that the assessment procedures
are not a determination, within the meaning of this provision, of
civil rights and obligations. Article 6 para. 1 (Art. 6-1) of the
Convention is, therefore, not applicable to them and the applicant's
complaint about delays must be rejected as being incompatible ratione
materiae with the provisions of the Convention, pursuant to Article 27
para. 2 (Art. 27-2).
5. Finally the applicant has complained of discrimination, in
breach of Article 14 (Art. 14) of the Convention read in conjunction
with Article 6 para. 1 (Art. 6-1) (civil rights), insofar as appeal
committees acting under section 8 (1) and (2) of the Education Act
1981 have fewer decision making powers when dealing with parental
appeals under section 8 (1) and (2) of the Education Act 1981, than
they have when dealing with appeals under section 7 of the Education
Act 1980. The former appeals concern special educational provision
for disabled children, the latter appeals concern disputes over
placements in normal schools.
However, the Commission considers that these committees are
not determining, within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, parents' civil rights and obligations. The committees are
made up of education experts who review the educational needs of the
pupils concerned. Article 6 para. 1 (Art. 6-1) of the Convention is
not, therefore, applicable to this review and no question of
discrimination under Article 14 (Art. 14) of the Convention arises,
as this latter provision is limited to the prohibition of
discrimination in the securement of Convention rights. It follows
that this aspect of the case must also be rejected as being
incompatible ratione materiae with the provisions of the Convention,
pursuant to Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy