AS TO THE ADMISSIBILITY OF
Application No. 29787/96
by Sefton James KEATING
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 December 1995
by Sefton James KEATING against the United Kingdom and registered on
11 January 1996 under file No. 29787/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1971 and resident in
Nottingham, Kent, in the United Kingdom. He is represented before the
Commission by Mr. J. Rabinowicz, a solicitor practising in London. The
facts as represented by the applicant may be summarised as follows.
The applicant commenced school in September 1976 aged 5 and
remained at this school until June 1977. In June 1977 the school
informed the applicant's mother that the applicant could no longer
attend the school due to disciplinary problems. From June 1977 to May
1979 (age 6 to 8) the applicant was not registered at any school,
despite the requests of the applicant's mother that a suitable school
should be found. During this period the only formal teaching the
applicant received was one hour of reading and one hour of maths a week
by a private tutor, paid for by the applicant's mother.
Between 1977 and 1978 the Local Education Authority assessed the
applicant as handicapped, in that he was educationally sub-normal
and/or maladjusted so as to require special educational treatment
within the meaning of the Handicapped and Special School Regulations
1959.
From May 1979 to July 1982 the applicant attended a special
school. In September 1982 the applicant commenced at a further special
school, and continued to attend there until its closure in September
1985. During the applicant's attendance at this special school, the
applicant's mother made repeated requests to the Local Education
Authority that her son be moved to an ordinary school. After the
closure of the school the majority of the pupils were transferred to
a local special school. However, it was agreed between the applicant's
teachers and the applicant's mother that attempts would be made to
place the applicant in a mainstream school. Despite repeated requests
from the applicant's mother that a suitable school be found, from
September 1985 to November 1986 (age 14 to 15) the applicant was not
registered at any school. During this period the applicant's mother
paid for him to have some lessons from a private tutor (costing £32 per
week).
From November 1986 to June 1987, the applicant attended an
ordinary school. At this school, the applicant was not allowed to
participate in main curriculum subjects, as he had not completed any
of the course work for the C.S.E. or G.C.E. public exams which the
other pupils were due to sit. He did, however, participate in art,
design and media and sporting activities. In June 1987, aged 16, the
applicant left school.
In 1993 the applicant brought proceedings in the High Court
seeking damages against the Local Education Authority for breach of
statutory duty and/or negligence. The proceedings alleged failure
properly to provide for the applicant's education from mid 1976 until
late 1986. At first instance, in July 1993, the applicant's claim was
struck out as disclosing no reasonable cause of action. The applicant
appealed to the Court of Appeal. It was held by the Court of Appeal on
19 April 1994 that the applicant's claim for damages for breach of
statutory duty should remain struck out, however the appeal of the
applicant against the striking out of his claim for damages for common
law negligence was allowed. On 29 June 1995 the House of Lords upheld
the opinion of the Court of Appeal.
The common law negligence claim against individual professionals
working for the Local Education Authority, which was allowed by the
House of Lords in their judgment of 29 June 1995, is currently before
the domestic courts.
COMPLAINTS
The applicant invokes Article 2 of Protocol No. 1 of the
Convention. The applicant complains that between June 1977 and May
1979 and between September 1985 and November 1986 he was denied access
to an education. Further the applicant complains that the Local
Education Authority failed to make a proper assessment of his abilities
and consequently sent him to a special school whereas he should have
remained in an ordinary school. The applicant also complains of a lack
of an effective remedy under English Law for the educational impairment
and consequential psychological impairment he suffered, as a
consequence of the denial of his right to education during two periods
of his childhood.
THE LAW
The Commission recalls that pursuant to Article 26 (Art. 26) of
the Convention it may only deal with an application where all domestic
remedies have been exhausted according to the generally recognised
rules of international law. Under this provision, an applicant is
obliged to make "normal use" of remedies likely to be effective and
adequate and remedy the matters of which he complains (see eg.
Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4, p. 4 at p. 64).
The Commission notes that the proceedings brought by the
applicant in the High Court seeking damages against the Local Education
Authority have not yet terminated. Whilst the applicant's claim for
damages for breach of statutory duty has been struck out, the common
law negligence claim against individual professionals working for the
Local Education Authority was allowed to proceed by the House of Lords
in their judgment of 29 June 1995 and is currently before the domestic
courts. While the applicant asserts that he is now denied the right
to pursue a claim against the Local Education Authority in relation to
their breach of statutory duty, it is conceivable that the applicant
will obtain compensation for the very matter of which he complains
through his action against individual professionals employed by the
Local Education Authority. In these circumstances the Commission finds
that the applicant has not exhausted domestic remedies.
It follows that the application must be rejected under Article 26
in conjunction with Article 27 para. 3 (Art. 36+27-3) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy