AS TO THE ADMISSIBILITY OF
Application No. 28915/95
by S.P.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 3 July 1994 by
S. P. against the United Kingdom and registered on 12 October 1995
under file No. 28915/95;
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 1986. He brought
domestic proceedings by his mother and next friend. He is represented
before the Commission by his mother. The facts of the case, as
submitted by the applicant, may be summarised as follows.
A. The particular circumstances of the case
The applicant is dyslexic. This means that, despite his high
intelligence, he has difficulties with spelling, written mathematics,
handwriting and that he has poor motor co-ordination. Further the
applicant has a significant weakness in short term auditory sequential
and visual memory and a weakness in laterality of knowledge. These
learning difficulties have caused the applicant to have serious
emotional, behavioural and social problems, including suicidal
tendencies.
The applicant had begun to read and write prior to commencing
school. He commenced primary school in September 1991, shortly before
his fifth birthday. The applicant's mother was concerned at her son's
failure to progress at school, and she consequently requested that the
Local Education Authority ("LEA") carry out an assessment (but not a
statutory assessment under the Education Act 1981) of her son's
educational abilities. In January 1992, when the applicant was aged
5 years 4 months, an LEA Educational Psychologist produced a report
which stated that overall the applicant was in the top 15% of children
for his age but that he had weaknesses in short term memory, reading,
spelling and numbers which suggested some underachievement, taking into
account his ability. The report concluded by observing:
"It is my opinion that [S.P.] is an able boy whose cognitive
skills are above average. It is important, therefore, that there
is awareness of this ability as [S.P.] may not produce evidence
to this effect on paper. The reasons for [S.P.'s] weak results
in the basic skills may be due to emotional factors or they may
be due to more specific difficulties ...".
At Easter 1992 the applicant's mother removed her son from the
initial primary school and placed him in another nearby school. At
this school, likewise, the applicant failed to perform according to his
abilities. The applicant's mother obtained a further report from the
LEA in May 1993, carried out by the same Educational Psychologist.
This report concluded that:
"[S.P.] is performing at a level well above his age in both
reading and in number. His spelling skills are also above his
age but weaker than expected and taking into account his general
level of ability ...[S.P.] does have one specific area of
weakness, that of short term auditory memory, and this appears
to have some effect on his progress in the area of spelling, and
in his ability to attending class ...".
In March 1993 the applicant's mother independently obtained a
report on the applicant by a consultant in learning abilities and
difficulties (Dr.C.). This report stated that the applicant was
dyslexic and commented with regard to a statutory assessment:
"[S.P.'s] difficulties are much above the standard where [the]
County Council would consider making a multi-professional
assessment under Section 5 of the 1981 Education Act, which might
lead to a Statement, and if he was placed within the ordinary
classroom of the local authority school, he would be unlikely to
receive specialist teaching or in-class support."
The report concluded that:
"[S.P.] is a student of high intellectual ability, who shows a
range of highly developed skills and learning, other skills at
an average level, but has difficulties in fine motor control, and
auditory short term memory. His reading, spelling, writing and
numeracy skills are age appropriate, but below the level
anticipated of a student of his age and high intellectual
competence. He is therefore under-achieving to some extent in
his basic skills development, and this will impair his work on
his curriculum, and affect his attitude to school ...".
The applicant remained at the school until September 1993 when
his mother removed him and thereafter he attended an independent
school. The applicant was removed from this school by his mother within
a year, as she considered the school was failing to help her son
appropriately and he commenced at a further independent school.
In May 1994 the applicant's mother requested that the LEA carry
out a statutory assessment of the applicant's special educational
needs, pursuant to Section 9 of the Education Act. The LEA replied by
letter stating:
"Nationally about 20% of children may have some form of special
educational need at some time. A formal assessment under the 1981
Act, however, is only applicable in a minority of cases -
nationally around 2% of children where a child's needs are so
severe or complex as to require the local education authority to
determine and arrange for special educational provision for the
child ...
It is clear from Dr. C's report that [S.P.'s] difficulties are
not such as to require a formal assessment under the 1981
Education Act. The authority will not therefore be complying
with your request."
Leave was granted to the applicant to challenge, by means of
judicial review, the decision of the LEA not to make a statutory
assessment of the applicant. However, the High Court, on
23 January 1995, upheld the decision of the LEA.
In 1995 the applicant's latest school requested that the
applicant be removed, as they were unable to supply the specialist
teaching he required. The applicant's mother commenced home education
and has provisionally obtained a place for the applicant at a
specialist independent school, to commence in September 1997.
The mother of the applicant independently obtained a report on
the applicant by a further psychologist, dated 12 June 1995. The report
dealt with the applicant's intellectual abilities, educational
attainments, specific learning difficulties, personality, and social
and behaviour adjustment. The report noted, inter alia, that the
applicant's personality profile showed significant deviations from the
norm, and noted a concern over suicidal thoughts and tendencies. The
report concluded (inter alia) that:
"In my opinion [S.P.] would benefit from a Statement of Special
Educational Needs in order to afford him the necessary protection
in law which should address both his learning difficulties and
his emotional, social and behaviour problems."
This report was sent to the LEA.
In November 1995 the LEA agreed to make a statutory assessment
of the applicant's special educational needs.
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 1981 Act). 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.
Section 5(1) of the 1981 Act deals with a child for whom the LEA
are responsible and who in their opinion has or probably has special
educational needs of a kind which calls for them (as opposed to the
school) to determine what special educational provision should be made
to meet these needs. In such a case the LEA are required to make an
assessment of the child's educational needs.
Section 7(1) of the 1981 Act requires that if the LEA, having
made an assessment under section 5, are of the opinion that they should
be the ones to determine the special educational provision which should
be made for the child, then they should make and maintain a statement
of his special educational needs and section 7 (2) of the 1981 Act
imposes upon the LEA the duty to arrange that the special educational
provision is made for him.
Section 9(1) of the 1981 Act provides that:
"parents of a child for whom no Statement of Special Educational
Needs is maintained by the local education authority may ask the
authority to make an assessment of those needs. The authority
must comply with that request unless it is in their opinion
unreasonable."
Special educational assessments are subject to periodic review.
Parents may appeal against the LEA's statement to an appeal committee
which may remit the case for further consideration by the LEA. Further
appeal can be made against the LEA's decision to the Secretary of State
for Education (there is no right of an oral or adversary hearing with
this form of appeal). In the final instance judicial review of the
Secretary of State's decision can be made, on the basis of
irrationality, illegality or procedural impropriety.
Likewise, judicial review can be sought of the LEA's decision not
to comply with a parent's request for a statement of special education
needs under section 9(1) of the 1981 Act.
COMPLAINTS
The applicant complains that he has been denied the right to an
education, in violation of Article 2 of Protocol No. 1.
The applicant considers that teaching staff at each of the
schools (including two state run schools and two independent schools)
have failed to take account of his special needs. In particular the
failure by teachers to address the applicant's problems with short term
memory, have resulted in him being unable to derive a positive benefit
from the education system. Further the neglect of the applicant's
learning difficulties has contributed to the applicant's current
behavioural, emotional and social problems.
The applicant further complains about the refusal of the LEA to
make a statutory assessment of him with regard to his special
educational needs and the refusal of the High Court to overturn this
decision by means of judicial review. The LEA refused the request from
the applicant's mother for a statutory assessment of the applicant in
May 1994. They maintained this refusal until November 1995, when an
assessment was agreed to.
THE LAW
The applicant complains that the failure of the schools he has
attended to recognise and assist him with his learning difficulties and
the initial refusal of the LEA to assess him with regard to his special
needs, amounts to a violation of Article 2 of Protocol No. 1 (P1-2).
Article 2 of Protocol No. 1 (P1-2) provides as follows:
"No person shall be denied the right to education. In the
exercise of any function 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 notes that the United Kingdom has entered a
reservation to Article 2 of Protocol No. 1 (P1-2), which reads as
follows:
"... in view of certain provisions of the Education Acts in the
United Kingdom, the principle affirmed in the second sentence of
Article 2 (Art. 2) is accepted by the United Kingdom only in so
far as it is compatible with the provision of efficient
instruction and training, and the avoidance of unreasonable
public expenditure."
Article 64 (Art. 64) of the Convention provides as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a
reservation in respect of any particular provision of the
Convention to the extent that any law then in force in its
territory is not in conformity with the provision.
Reservations of a general character shall not be permitted
under this Article.
2. Any reservation made under this Article shall contain a
brief statement of the law concerned."
In the light of developments in the case-law of the Convention
organs on Article 64 (Art. 64) of the Convention, questions may arise
as to whether the reservation entered to Article 2 of Protocol No. 1
(P1-2) is valid (see, in particular, Eur. Court HR, Belilos v.
Switzerland judgment of 29 April 1988, Series A no. 132, pp. 25-28,
paras. 52-59), and if it is valid, whether it is applicable to the
present case which concerns largely provisions which entered into force
subsequent to the making of the reservation (see Eur. Court HR, Fischer
v. Austria judgment of 26 April 1995, Series A no. 312, pp. 18-20,
paras. 37-41). The Commission is not, however, required to resolve
these questions as the application is in any event inadmissible for the
following reasons.
Article 2 of Protocol No. 1 (P1-2) constitutes a whole that is
dominated by its first sentence (Eur. Court HR, Kjeldsen, Busk Madsen
and Pedersen judgment of 7 December 1986, Series A no. 23). In the
present case, there is no question of the applicant having been
excluded from the educational facilities of the State. The applicant's
mother voluntarily removed her son from two State schools and one
private school as she did not consider he was receiving the extra help
he required. She was requested to remove her son from a further private
school as they were unable to meet the special teaching requirements
of the applicant.
The Commission recalls that Article 2 of Protocol No. 1 (P1-2)
is a right which:
"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" (Eur. Court HR,
Belgian Linguistic judgment of 23 July 1968, Series A no. 6,
pp. 30-32, paras. 3-5).
Such regulation is permitted as long as the substance of the
right to education is preserved.
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 (for cases on special education see No. 14135/88,
Dec. 2.10.89, D.R. 62, p. 292 and No. 14688/89, Dec. 4.12.89, D.R. 64,
p. 188). 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 other 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.
As regards the facts of the present case the LEA initially
obtained, at the request of the applicant's mother, professional
reports, albeit not statutory assessments, on the applicant. From these
reports the LEA concluded that the applicant was of above average
intelligence and his short term memory problems were not such as to
require a formal statutory statement, which would have been the first
step towards providing special teaching provisions for the applicant.
To the contrary, it was the LEA's view that the applicant's needs could
be sufficiently catered for in the classroom. In May 1994 the LEA
refused to make a statutory assessment of the applicant. They made this
decision on the basis of the then current independent psychologist's
report (Dr. C.), which itself stated that the applicant was not
exhibiting difficulties at a level which would normally lead to a
statutory assessment. It appears from the facts that over a period of
several years and four changes of school, the applicant's learning
difficulties and associated behavioural, social and emotional problems
magnified. When the LEA received a further report of 12 June 1995 from
a different psychologist stating in unambiguous terms that a statutory
assessment was required, they acceded to this request.
The Commission considers that, in these circumstances the LEA
cannot be criticised for initially refusing, in May 1994, to make a
statutory assessment of the applicant, albeit with hindsight the
applicant's mother was shown to be right in her concerns. The
Commission in particular notes that in November 1995 having received
a psychologist's report that recommended an assessment, the LEA agreed
to undertake a statutory assessment of the applicant's special
educational needs.
With regard to criticisms made of the various teaching that the
applicant has received in the four schools he has attended, it is not
the Commission's task to assess the standard of teaching provided by
schools.
In these circumstances the Commission concludes that the
applicant has not been 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 application is manifestly ill-founded within
the meaning of Article 27 para 2 (Art. 27-2) 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