CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 décembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF     Application No. 15186/89 by Matthew SMITH 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 5 May 1989 by Matthew SMITH against the United Kingdom and registered on 30 June 1989 under file No. 15186/89;           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, Matthew Smith, is a British citizen, born on 29 December 1973 and resident in Redditch, Hereford and Worcester.   He is represented before the Commission by his father and Mr. J. Friel, barrister.           The facts of the present case, as submitted by the applicant, may be summarised as follows:   A.       The particular facts of the case           The applicant suffers from severe dyslexia causing him serious emotional and behavioural problems.   He started school at the age of 5, but was miserable and worked poorly.   Severe problems surfaced when he was 6 1/2 and he was moved to a smaller State primary school.   His problems were identified as dyslexia in 1983 by a child psychologist specialised in dyslexia, when the applicant was 10 years old.   The psychologist recommended that the applicant receive two separate tutorials with him a week.   However the Hereford and Worcester local education authority (LEA) did not immediately respond to a request that this special provision be made for the applicant.   The applicant's father arranged a place for the child in a special private, fee-paying school for dyslexic children, beginning in September 1984.   The LEA offered the applicant one hour a week special education by which time the applicant was already having his two sessions per week with the aforementioned expert and even these sessions were proving insufficient.           Initially the LEA refused to issue a statement of the applicant's special educational needs.   Eventually, and allegedly under the threat of High Court litigation for breach of statutory duty and judicial review, they issued a provisional statement on 12 June 1986, pursuant to section 7 of the Education Act 1981.           The final statement was made on 14 October 1986 as follows:           "II - Special educational needs           Matthew is of good average underlying ability.   However,         his literacy skills are delayed, his reading speed being         particularly poor.   Matthew's expressive language has         clearly improved but still tends to deteriorate under         pressure.   General numeracy is average, but arithmetical         operations and number tables are weak.   Matthew's         short-term memory is limited.           III - Special educational provision           Matthew requires a substantial degree of small group         provision, within which techniques of over-learning         and repetition should be used to combat his specific         learning difficulties.   He has made progress with         social skills and contact with larger groups will be         necessary in order to build on this.           IV - Appropriate school or other arrangements           It is proposed that a place be made available at         Stourport High School from September 1986.   Matthew         would take part, on five full mornings per week, in         very intensive work of the kind described in section         III, in a small unit catering for children with         specific learning difficulties such as his.   For the         rest of the week he would take part in, and have the         social stimulus of, the activities of the wider school,         with the added advantage that staff there will know         of his particular difficulties and be sympathetic to         them."           The applicant's parents successfully appealed against this statement to an appeal committee.   On 7 April 1987 the appeal committee unanimously decided that the school proposed by the LEA was too large (1100 pupils) for the applicant's present needs and it remitted the case to the LEA to reconsider the applicant's case and, in particular, to obtain expert advice on the emotional aspects of the applicant's problems.   The applicant's parents obtained expert child psychiatric opinions which found no evidence of mental illness, but recommended that he remain in the special school where his parents had placed him.   This was confirmed by the child psychologist acting for the LEA in July 1987.   In the meantime the applicant's parents had commenced further High Court proceedings against the LEA for breach of statutory duty in an attempt to speed up the procedure.   The LEA decided on 11 November 1987 to maintain its proposal concerning the appropriate school, i.e. the Stourpourt High School with its special learning unit.   As was revealed in the High Court preliminary litigation, this decision was based on the fact that no evidence of psychiatric illness had been found and that in view of the great improvement in the applicant's abilities over the years it was felt that he needed to be placed into a larger unit in preparation for adult life.   The applicant's needs had also to be seen in the light of the interests of the community as a whole in using available resources efficiently, and the LEA considered it had a duty to its rate-payers to reduce educational spending on private school fees, which spending was already high (£ 1.5 m. in 1987), when appropriate education was available in an ordinary State school.           The applicant's parents appealed against the LEA's decision to the Secretary of State for Education under Section 8 (6) of the Education Act 1988.   The appeal was rejected by letter of 8 December 1988 to the applicant's solicitors in the following terms:           "In considering Matthew's case, the Secretary of State         has had to establish whether the provision specified         in the statement would meet Matthew's special educational         needs.   In reaching his decision he has taken account of         the advice, representations and evidence available to the         Hereford and Worcester Authority and the local appeal         committee.   In particular the Secretary of State has         given careful consideration to all the professional         assessments of Matthew provided by the Authority and the         independent reports submitted on his behalf and to the         representations submitted by yourselves.           After examining the various reports and submissions         placed before him, the Secretary of State is satisfied         that Matthew's special educational needs can be met by         the special education provision specified in part III         of his statement and that the provision can be made         available at Stourport High School.           Where a local education authority are willing to make a         suitable place available for a child in one of their         own schools, the Secretary of State does not consider         it unreasonable for that authority to be unwilling to         pay the fees incurred by that child's attendance at         an independent school, subject to proper consideration         having been given to any special circumstances in individual         cases.   On the evidence before him, the Secretary of State         has reached the opinion that Matthew does not now suffer         from any psychiatric, emotional or behavioural disorder         such as might justify placement outside the maintained         sector.   Whilst the Secretary of State appreciates that if         Matthew were to transfer back to the maintained sector he         might have some initial difficulties in adjusting to the         change of environment, the Secretary of State considers that         any such difficulties could be overcome.           Accordingly, the Secretary of State, in the exercise of his         power under section 8(7) of the Education Act 1981 has         confirmed the special educational provision as set out in         part III of the statement made by the Hereford and Worcester         Authority in respect of Matthew dated 14 October 1986."           This appeal was final.   The applicant's parents could not seek judicial review of the Secretary of State's decision because they do not qualify for legal aid and could not afford to litigate in person as well as pay for the applicant's school fees.   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, which they allegedly deliberately failed to understand; 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; that there is no reason why these committees could not have powers in compliance with Article 6; that there is no fair, oral or public hearing before the Secretary of State for Education, who himself, or rather whose civil servants, cannot constitute an independent and impartial tribunal; that he allegedly cannot decide past issues even if an LEA has acted dilatorily or unlawfully and he also takes secret expert advice which he does not show to the parties (cf. Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97).         The applicant submits that his parents do not have sufficient means to challenge the Secretary of State's decision by way of judicial review; but they are 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 a proper education in accordance with his educational needs.   He alleges that the education proposed by the LEA would be positively harmful to him and that his parents are entitled to have him educated in accordance with their firm philosophical convictions on the subject. Expert evidence and the appeal committee decision support these claims.   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 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.   A similar binding appeal is available under section 26 of the Education (No. 2) Act 1986 on the question of a child's expulsion from school.   In this respect he invokes Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 (cf. Eur.   Court H.R., Belgian Linguistic judgment of 9 February 1967, Series A no. 5, and Marckx judgment of 13 June 1979, Series A no. 31).           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 parents' behalf concerning an alleged failure by the LEA to respect their 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 parents could not have lodged an application on their own behalf as well.   Nor has the applicant shown that he is an indirect victim of his parents' 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 emotional and 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 treated and would continue to be treated in the specialist department of the 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 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)