AS TO THE ADMISSIBILITY OF
Application No. 14688/89
by André SIMPSON
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 December 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 31 January
1989 by André SIMPSON against the United Kingdom and registered on
24 February 1989 under file No. 14688/89;
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 1973 and resident
in Swansea. He is represented before the Commission by Messrs. A.E.
Smith and Son, Solicitors, Stroud.
A. The particular facts of the case
The facts of the present case, as submitted on behalf of the
applicant, may be summarised as follows:
The applicant suffers from dyslexia. This means that despite
his high intelligence he has cognitive difficulties because certain
parts of his brain do not function properly. He has a significant
weakness in auditory short term memory, some weakness in visual short
term memory and poor fine motor manipulative skills. These cognitive
difficulties cause serious retardation in his literary and
arithmetical attainment. His personality is delicate. Before being
placed in a special school he experienced behavioural problems because
his cognitive difficulties were not diagnosed or treated.
In October 1985 the local education authority (LEA) concerned
made a "statement" of the applicant's special educational needs under
section 7 of the Education Act 1981. They agreed to pay for the
applicant to attend a private fee-paying special school where he had
already been placed by his mother. The applicant's family then moved
areas and the competent LEA was unwilling to continue the payment of
these fees. They hurriedly attempted to issue a different statement
of needs (21 July 1986) but subsequently withdrew it (5 March 1987).
They prepared a further statement in the same terms as the previous
one. This statement dated 29 April 1987 diagnosed the applicant's
special educational needs as follows:
"Normal secondary curriculum, but offering daily individual
help, using a multisensory approach, from a teacher
experienced in teaching children with specific learning
difficulties.
Liaison between this teacher and other members of Staff
who teach André in order to engender a continuity of
approach.
Access to appropriate teaching materials and computer
programs designed for children with specific learning
difficulties in reading and spelling."
However, they proposed that the applicant be sent to a normal
comprehensive school of 1400 pupils, which had an Individual Learning
Department.
As the applicant's mother disagreed with this statement, she
appealed to a local appeal committee. It was submitted by independent
experts on the applicant's behalf that, inter alia, "such was his
delicate personality and due to the fact that he had previously
suffered behavioural and psychological problems, the placement in a
large school would mean that he would be in danger, could not cope, or
that he would be in significant danger of reverting and all progress
would be lost." The head of the specialist department of the school
in question apparently admitted that it would be unable to cope with
the applicant. The appeal was allowed on 24 September 1987 and the
LEA advised to reconsider the case.
On 4 November 1987 the LEA considerably amplified their
statement, but still concluded that the applicant could be educated at
the local large comprehensive school. The applicant's mother appealed
to the Secretary of State for Education under section 8 of the
Education Act 1981. She submitted, inter alia, that as far as she was
aware the proposed school's remedial department is controlled by three
members of staff dealing with 150-300 pupils. None of these teachers
is trained to deal specifically with dyslexic children. The LEA has
one such part time teacher who spends three hours a week at the
school. The applicant would not therefore have the daily training he
requires and receives in the special private school where he is happy
and is making good progress. The Secretary of State, through the
Welsh Office, informed the applicant's representatives, by letter
dated 24 August 1988, that he considered that the applicant's needs
could be catered for at the comprehensive school. He therefore upheld
the LEA's statement and proposal, subject to annual review.
Since then this letter appears to have been communicated to
another local appeal committee in connection with another case without
the consent of the applicant's mother. The applicant's solicitors
complained of a breach of confidentiality to the Welsh Office on
15 November 1988.
For the time being it appears that the applicant's mother
struggles to pay the special school's fees herself.
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 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. A similar binding appeal to an appeal committee is
available under section 26 of the Education (No. 2) Act 1986 on the
question of a child's expulsion from a school.
COMPLAINTS
The applicant complains that the procedures determining his
special educational needs and provision were in breach of Article 6
para. 1 of the Convention, being a biased, unlawful determination of
his civil rights by partial bodies, who created unreasonable delays.
He alleges that the local education officers were biased throughout
his case; that there are no speedy statutory time limits for issuing
a statement of special educational needs under section 7 of the
Education Act 1981; that appeal committees have no decision making
power if they agree with the appellant - they can only recommend
reconsideration of the case by the LEA ; and that there is no fair,
oral or public hearing before the Secretary of State for Education,
who himself cannot constitute an independent and impartial tribunal.
Part of the applicant's submission is that there are major financial
constraints placed on LEAs by central Government, resulting in
institutional bias against a full and fair consideration of a child's
special educational needs which might result in extra public expense.
The applicant submits that his mother does not have sufficient
means to challenge the Secretary of State's decision by way of
judicial review; but she is not so poor as to be able to qualify for
legal aid to pursue such a challenge.
The applicant next complains that he is denied the right to
education in accordance with his educational needs and that his mother
is entitled to have him educated in accordance with her firm
philosophical convictions on the subject. He contends that the
Secretary of State's decision is in breach of Article 2 of Protocol
No. 1 to the Convention.
The applicant also complains of discrimination in that the
Education Act 1980 allows appeals against decisions on school
admissions or expulsions to the same kind of appeal committee as in
the applicant's case, but in the former cases the appeal committee has
binding powers of decision. In this respect he invokes Article 14 of
the Convention read in conjunction with Article 2 of Protocol No. 1.
Finally, the applicant invokes Article 8 of the Convention
(family life) for, he submits, to place him in the comprehensive
school would lead to the deterioration in his mental condition and his
ability to be educated.
In conclusion he submits that United Kingdom law is seriously
in breach of the Convention in relation to children who have special
educational needs.
THE LAW
1. The applicant has first complained that the procedures
determining his special educational needs and provision were in breach
of 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 ..."
In analysing complaints of this kind the Convention organs
must deal with three questions:
- whether the case gives rise to a "contestation" (dispute)
concerning a right;
- if so, whether the right at issue is civil in character;
- if so, whether there has been compliance with Article 6 para.
1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Benthem judgment of
23 October 1985, Series A no. 97).
As to the first question the Commission considers that the
case does give rise to a "contestation" or dispute over a right. The
various Education Acts have created obligations on local education
authorities to provide suitable education for all children in their
areas. Parents dissatisfied with the education proposed for their
children may complain to the Secretary of State and, ultimately, they
may seek judicial review of the decisions of the local authority or
Minister. Thereby the relevant legislation has created a right which
reflects the guarantees of Article 2 of Protocol No. 1 (P1-2) to the
Convention - a right for children not to be denied an education
appropriate to their needs and aptitudes.
However, the Commission does not consider that this right
under English domestic law or under Article 2 of Protocol No. 1 (P1-2)
is of a civil nature for the purposes of Article 6 para. 1 (Art. 6-1)
of the Convention. Although the notion of a civil right under
this provision is autonomous of any domestic law definitions, the
Commission considers that for the purposes of the domestic law in
question and the Convention, the right not to be denied elementary
education falls, in the circumstances of the present case, squarely
within the domain of public law, having no private law analogy and no
repercussions on private rights or obligations (cf. Eur. Court HR,
Deumeland judgment of 29 May 1986, Series A no. 100 pp. 24-25 paras.
71-74). The Commission concludes, therefore, that there is no civil
right at issue in the instant case and, accordingly, Article 6 para.
1 (Art. 6-1) of the Convention is not applicable to the
administrative procedures before the domestic education authorities.
It follows that this aspect of the applicant's case must be rejected
as being incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that he is denied the right to
education in accordance with his educational needs, contrary to
Article 2 of Protocol No. 1 (P1-2) to the Convention, the first
sentence of which provides that no one shall be denied the right to
education. The applicant has also raised a complaint on his mother's
behalf concerning an alleged failure by the LEA to respect her
philosophical convictions about his education, contrary to the right
ensured by the second sentence of Article 2 of Protocol No. 1 (P1-2).
However, according to Article 25 (Art. 25) of the Convention, the
Commission may only deal with complaints from the purported victim of
a breach of the Convention. In the circumstances of this case it is
not clear why the applicant's mother could not have lodged an
application on her own behalf. Nor has the applicant shown that he is
an indirect victim of his mother's alleged grievance. This latter
aspect of the complaint under Article 2 of Protocol No. 1 (P1-2) is
accordingly incompatible ratione personae with the provisions of the
Convention, pursuant to Article 27 para. 2 (Art. 27-2).
As regards the applicant's personal complaint of a denial of
his right to education under Article 2 of Protocol No. 1 (P1-2), the
Commission observes that Article 2 of Protocol No. 1 (P1-2) is not an
absolute right which requires Contracting Parties to subsidise private
education of a particular type or level. In principle, it guarantees
access to public educational facilities which have been created at a
given time and the possibility of drawing benefit from the education
received. This right "by its very nature calls for regulation by the
State, regulation which may vary in time and place according to the
needs and resources of the community and of individuals", as long as
the substance of the right to education is preserved (Eur. Court H.R.
Belgian Linguistic judgment of 23 July 1968, Series A no. 6 pp. 30-32
paras. 3-5).
The Commission notes that the United Kingdom Government
provides special education for disabled children either in normal
mainstream schools with special departments, or in specialised
segregated institutions. In keeping with current educational trends,
section 2 of the Education Act 1981 provides that children with
special educational needs should be educated in an ordinary school
with normal children of their own age if that is compatible with the
special education which the former require, the provision of efficient
education for other children at the school and the efficient use of
resources. The Commission 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 parents' and pupils' views, it cannot be said
that the first sentence of Article 2 of Protocol No. 1 (P1-2) requires the
placing of a dyslexic child in a private specialised school, with the
fees paid by the State, when a place is available in an ordinary State
school which has special teaching facilities for disabled children.
As regards the facts of the present case, the Commission notes
that the applicant's behavioural problems in a State school arose at a
time when his disabilities had not been diagnosed or treated. His
dyslexia has now been identified and would be treated in the special
department of the comprehensive school proposed by the education
authorities. It is not the Commission's task to assess the standard
of the special facilities provided by this State school. It is clear,
however, that the applicant's progress at the school would be
monitored and his needs kept under review by the education
authorities. In these circumstances, the Commission concludes that
the applicant is not denied his right to education and that the
present case does not disclose any appearance of a violation of
Article 2, first sentence, of Protocol No. 1 (P1-2). 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.
3. The applicant also complains of discrimination contrary to
Article 14 of the Convention read in conjunction with Article 2 of
Protocol No. 1 (Art. 14+P1-2). His complaint is based on the fact
that appeal committees do not have full and final decision making
powers in appeals against an LEA's statement of a disabled child's
special educational needs, whereas such committees can take binding
decisions on appeals against school admission or expulsion.
However, the Commission finds that these procedures before the
appeal committee do not impinge on the substance of the right to
education ensured by the first sentence of Article 2 of Protocol No. 1
(P1-2). Whether the final administrative decision on the type of
school or the particular school to which a child should be sent is
taken by the Secretary of State for Education or an appeal committee,
the decisions of both of which being subject to judicial review before
the civil courts, is not a matter, which, in the Commission's view,
raises a significant difference in treatment. In these circumstances
the Commission concludes that the applicant's claim of discrimination
contrary to Article 14 (Art. 14) of the Convention is unsubstantiated
and, therefore, manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
4. Finally, the applicant has complained that the proposal to
place him in the State comprehensive school is in breach of his right
to respect for family life, ensured by Article 8 (Art. 8) of the
Convention, as it would lead to the deterioration of his mental
condition and his ability to be educated. However, the Commission
finds that this complaint is hypothetical at the present stage because
it is by no means certain that the applicant's attendance at the
school in question, which has certain special educational facilities,
will lead to the deterioration he fears. In these circumstances the
Commission concludes that the complaint is unsubstantiated.
Accordingly this aspect of the case is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
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