Legal summary
March 2023
T.H. v. Bulgaria - 46519/20
Judgment 11.4.2023 [Section III]
Article 14
Discrimination
Primary school’s response, including reasonable adjustments, to aggressive and disruptive behaviour of child diagnosed with hyperkinetic and scholastic-skills disorder: no violation
Facts – The applicant, a child born in 2004, had behavioural difficulties in school and was later diagnosed with a hyperkinetic disorder and a specific developmental disorder of scholastic skills. He complains that he was discriminated against by the head teacher and his teacher in the first two years of primary school from 2011 to 2013. In this connection he complains, firstly, that they harassed him and treated him unprofessionally, and, secondly, that they failed to organise his education in a manner corresponding to his special educational needs.
The Commission for Protection from Discrimination (“Commission”) and the national administrative courts dismissed his claims.
Law – Article 14 taken in conjunction with Article 2 of Protocol No. 1:
(a) General principles –
Discrimination on grounds of disability, which fell under the rubric “other status”, could consist not only in less favourable treatment on grounds of a disability without a reasonable and objective justification but also in a failure to provide “reasonable accommodation” for someone with a disability. The notion of “reasonable accommodation” in this context must be understood in the sense ascribed to it by Article 2 of the 2006 United Nations Convention on the Rights of Persons with Disabilities, in whose light Article 14 must be read when being applied in this domain. Furthermore, “reasonable accommodation” in the educational field could take different material or non-material forms, for instance, teacher training, curricular adaptation, or appropriate facilities, depending in particular on the disability in question. However, it was not for the Court to define its modalities in a given case, the national authorities being much better placed to do so, it being emphasised however that they had to take great care with the choices that they made in this respect. Lastly, the Court underlined that a disability might consist in, or result from, not only a physical but also a mental or behavioural impairment.
(b) Application of those principles –
The Court’s examination of the case was confined to certain incidents referred to by the applicant which had taken place during his first two years of primary schooling. Furthermore, while its analysis was chiefly based on the domestic findings, it could not rely exclusively on them, since the somewhat broad-brush manner in which parts of the domestic decisions – especially those of the Commission, had been drawn up made it difficult to ascertain all relevant details solely on their basis.
(i) Was the applicant unjustifiably treated less favourably than others on grounds of disability?
The alleged ground of distinction had been the disability resulting from the applicant’s hyperkinetic and scholastic-skills disorders. The Court proceeded on the basis that the applicant had been in a relevantly similar situation with pupils in his school who had had no impairments causing them behavioural difficulties and had been treated differently from them in analogous respects. The main question was thus whether the way in which the applicant had been treated by his teacher and the head teacher in each of the various occasions had had an objective and reasonable justification.
It was plain that the applicant’s behaviour in school and the resulting incidents, particularly with classmates, had elicited a number of reactions from his teacher and the head teacher. Although there had been some indications that he had behavioural problems and would hence encounter difficulties at school even before he started attending it, his teacher and the head teacher had only been apprised of the precise nature of his disorders when he had been starting year two.
Having examined the incidents one by one and chronologically, the Court could not conclude, on the available evidence, that on each occasion in question the head teacher or his teacher had had no objective and reasonable justification for acting as they had. It could not be said that their actions had been unjustified, unreasonable or disproportionate. These comprised:
– The convening at their initiative of a meeting of the school’s commission for the prevention of anti-social behaviour. This had been an attempt to bring their concerns about the applicant’s behaviour to his parents’ attention and seek a way to tackle that behaviour with their assistance. It had not resulted in any concrete actions with respect to him.
– The head teacher’s reaction to the violent incidents between the applicant and other pupils and to the complaints by his mother about those incidents. These had also been investigated by the head teacher or by her deputy.
– The disciplinary sanction imposed on the applicant, apparently preceded by sustained informal efforts to tackle his behaviour, had been prompted by a considerable number of instances of misbehaviour in class, particularly displays of aggression towards other pupils and teachers. It had been relatively mild - a mere warning that he would be transferred to another school - had been deferred until the beginning of the next school year, and then, rescinded after diagnosis, with no tangible effects for him. Nor could the sanction be seen as an automatic and inflexible enforcement of the school’s disciplinary rules and policies without the possibility being considered that the applicant’s disruptive behaviour might have been a result of from his impairment rather than a conscious choice on his part.
– The reprimands by his teacher on many occasions in connection with his behaviour and his removal from class to prevent him disrupting the teaching process. In this connection and in view, inter alia, of the findings made in the domestic anti-discrimination proceedings, the Court was also not persuaded that she had targeted or harassed him owing to his disability or the resultant behaviour.
– The head teacher’s reaction to the incident in which the applicant had been slapped by one of his teachers. The Court had had occasion to note, albeit in different contexts, that a slap on the face administered by a person in authority having control of another – even if an impulsive act carried out in response to an attitude perceived as disrespectful – was unjustified, undermined human dignity and ran counter to Article 3, especially if directed against a minor. Further, under Article 8 the national authorities must take steps to ensure zero tolerance to any violence or abuse in educational institutions. However, the head teacher had promptly investigated the matter after the parents’ complaint and had given the teacher a disciplinary sanction. In the absence of more details about the circumstances of the incident and the head teacher’s reasons for opting for a reprimand rather than harsher measures, the Court was not able to say that that sanction had been unduly lenient and thus indicative of discrimination. There was also no evidence that the applicant or his parents had sought further redress in respect of the slap from the specific teacher or the school.
– The head teacher’s decision to allow the applicant to interrupt his schooling in the second term of his second year. This had been based on his parents’ express request and a medical recommendation obtained by them. The applicant had then been able to repeat year two in another school.
(ii) Was “reasonable accommodation” made for the applicant?
The head teacher and his teacher had been aware before his formal diagnosis that he had had behavioural problems and would hence encounter difficulties at school even before he started attending it. At that stage they had already taken steps to handle those problems and to enable the applicant and his parents to manage his behaviour and for him to obtain an effective education. It seemed that at that time the precise nature of his disorders and the specific steps to be taken to accommodate them had not been fully apparent, either to the school or his parents; that had only become clear at the beginning of his second year following his assessment by specialists at a child psychiatry clinic.
In the face of accumulating difficulties with the applicant’s behaviour, during the second term of his first year the head teacher and his teacher had resorted to more formal steps, such as convening meetings of the school’s commission for the prevention of anti-social behaviour and of the school’s pedagogical council. It did not, however, appear that in those meetings they had acted in an intransigent manner but that the purpose of the meetings, as of the aforementioned disciplinary sanction imposed on the applicant, had not been so much to punish him but to direct his behaviour in a positive direction, with his parents’ help.
Within a month after having been notified of the applicant’s diagnosis and of the certification of his special educational needs, the head teacher had taken steps to accommodate them: she had proposed a draft individual education plan, put together a team to devise such a plan and ensured that he would have individual lessons with a resource teacher. She had not insisted on one-on-one lessons, a solution which had been rejected by his parents. Her refusal of their request for his transfer to another class had been based on the school’s policy of having only one child with special educational needs per class and on advice that the applicant’s challenging behaviour would remain constant in the school environment, irrespective of the personalities of his teacher and his classmates. Those delicate and highly context-specific assessments fell within the school authorities’ margin of appreciation.
The steps taken by the head teacher had not unfortunately resolved the applicant’s behavioural problems, and his parents, having obtained medical advice, had decided to interrupt his schooling in the second term of his second year. Those difficulties had been to some extent caused by the applicant’s parents, who, by resisting the measures proposed by the school and by insisting that all the problems had stemmed exclusively from the attitude of the head teacher, the applicant’s teacher, the school staff in general and other pupils, had jeopardised the relationship between the parties concerned.
In sum, it could not be said that the head teacher and the applicant’s teacher had turned a blind eye to his disability and his resulting special needs; it appeared that they had made a series of reasonable adjustments for him. The nature of the applicant’s impairments had been such that it had caused him to behave in a manner which had had an immediate negative impact on the safety and well-being of other pupils and on the possibility of providing effective education to them. In devising adjustments to those impairments, the applicant’s teacher and the head teacher had been engaged in a difficult balancing act between his interests and those of his classmates. Article 14 required reasonable accommodation, rather than all possible adjustments which could be made to alleviate the disparities resulting from someone’s disability regardless of their costs or the practicalities involved.
Conclusion: no violation (unanimously).
(See also Çam v. Turkey, 51500/08, 23 February 2016, Legal Summary; Sanlisoy v. Turkey (dec.), 77023/12, 8 November 2016; Enver Şahin v. Turkey, 23065/12, 30 January 2018, Legal Summary; G.L. v. Italy, 59751/15, 10 September 2020, Legal Summary).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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