CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 28374/95                       by Robert FORD                       against the United Kingdom        The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 9 March 1995 by Robert FORD against the United Kingdom and registered on 30 August 1995 under file No. 28374/95;        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 1977 and resident in Cirencester. The application is presented on his behalf by his mother. The facts as submitted on his behalf may be summarised as follows.        From age five to eleven, the applicant attended a local state school. In 1989, a formal assessment of special educational needs was undertaken in his regard by the local education authority. It concluded that the applicant should attend a local special school. The applicant's parents' appeal against this assessment was dismissed on 14 December 1989. He was subsequently prevented from continuing to attend the state secondary school and his parents educated him at home in preference to sending him to any special school.        A further 13+ assessment was made on 30 November 1992 in respect of the applicant's educational needs which concluded that, given a range of difficulties, including language delay and poor communication skills, he required more support than was available in a mainstream school and would be more appropriately placed at a school for children with   moderate learning difficulties. The applicant's parents, who noted that the local education authority had not apparently sought "educational advice"   in respect of the statement as they considered was required by the appropriate regulations, appealed against the assessment on this and other grounds. Meanwhile, the applicant continued to be educated at home, receiving privately-commissioned speech therapy and from September 1993 he began attending a College of Further Education arranged by his parents.        By letter dated 11 October 1994, the Secretary of State referred to independent educational advice which she had obtained and noted that the applicant's levels of competence had increased only a little since those recorded in 1991 by the educational psychologist of the local education authority. In particular, in age-related terms, the applicant, then 17 years of age, had acquired skills and knowledge in English and mathematics equivalent to the average seven year old. The Secretary of State concluded that he would struggle to attain GSCE levels beyond the very lowest level of competence and that his level of reading and written English would continue to provide a barrier to accessing GSCE courses within a normal sized class though he might be able to cope in   class of children 2-3 years younger than himself with support. She accordingly differed from the view of the applicant's parents who wished him to attend a mainstream school and take GSCE courses. She found it reasonable and appropriate that the applicant continue at a college for further education which would offer courses appropriate to consolidating his basic skills and provide the opportunity for vocationally oriented studies.   Since the applicant was now over 16 and not registered at a school, the special educational needs assessment was lifted.        The applicant's parents queried the decision, referring in particular to the fact that no mention was made of the local education authority's failure to obtain educational advice in apparent breach of regulations. By letter dated 15 December 1994, the Department for Education replied that, as the Secretary of State was considering the position as a whole and would have been in a position to correct any error resulting from any apparent breach, and since she herself obtained independent educational advice, it was not considered necessary to examine this aspect separately. There was in any event no expedient direction which the Secretary of State could have issued under the Education Act 1944 in that respect.        By further letter dated 1 February 1995, the Department for Education agreed that the local education authority had acted in breach of Regulation 5 of the Education (Special Educational Needs) Regulations 1983 which requires that in making an assessment educational advice should be sought from a qualified teacher. The same letter also refers to the apparent agreement of the applicant's parents that there was no appropriate action which the Secretary of State could require the local education authority to take in response to this complaint.   COMPLAINTS        The applicant complains that he has been denied the right to education guaranteed under Article 2 of the Protocol No. 1 to the Convention. It is submitted that the local education authority blocked his access to a mainstream school and that, had they obtained educational advice at the proper time, he could have been considered for a formal education at a much younger age as indicated by the independent educational advice later obtained.   THE LAW        The applicant complains that he has been denied the right to education due to the attitude and failures of the local education authority. He invokes Article 2 of Protocol No. 1 (P1-2) to the Convention which provides:        "No person shall be denied the right to education.   In the      exercise of any functions 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 applicant's parents have been in dispute with the local education authority about the provision of suitable education for the applicant since apparently 1989. They have taken the view that he should have been educated in mainstream schools whereas the local education authority considered that his level of skills required more intensive support which would be available in a special school.        The Commission recalls that while Article 2 of Protocol No. 1 (P1-2) generally guarantees access to existing public educational facilities, the 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).        In this case, the Commission notes that the local education authority made provision for the applicant to be educated at a special school which, in its opinion, would provide the necessary support and teaching geared to his problems. The applicant's parents however preferred to teach him at home, since they considered that he should be given a place in mainstream schooling. While the applicant submits that the local education authority failed properly to assess his needs by obtaining educational advice, the Commission notes that his case was reviewed by the Secretary of State who obtained independent educational advice and in which reference was made to the educational psychologist's assessment of the applicant undertaken for the local education authority. The Commission is not persuaded therefore that the assessment of the applicant's needs by the local education authority was not reasonably based on relevant expert opinion as to his skills and competence. The Secretary of State's decision, based on the independent educational advice specifically obtained for determination of the appeal, also agreed that it was more appropriate for the applicant to receive a specialised education. In light of the not insignificant problems suffered by the applicant which were confirmed by the independent educational expert, the Commission considers, having regard to the margin of appreciation accorded to national authorities in the efficient use of educational resources, that the refusal to allow the applicant to attend mainstream schooling cannot be said to amount to a denial of education within the meaning of Article 2 of Protocol No. 1 (P1-2) to the Convention.        It follows that this application must be rejected as 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.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)