CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 29787/96                       by Sefton James KEATING                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            Mr.    R. NICOLINI              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 14 December 1995 by Sefton James KEATING against the United Kingdom and registered on 11 January 1996 under file No. 29787/96;        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 1971 and resident in Nottingham, Kent, in the United Kingdom.   He is represented before the Commission by Mr. J. Rabinowicz, a solicitor practising in London.   The facts as represented by the applicant may be summarised as follows.        The applicant commenced school in September 1976 aged 5 and remained at this school until June 1977.   In June 1977 the school informed the applicant's mother that the applicant could no longer attend the school due to disciplinary problems.   From June 1977 to May 1979 (age 6 to 8) the applicant was not registered at any school, despite the requests of the applicant's mother that a suitable school should be found.   During this period the only formal teaching the applicant received was one hour of reading and one hour of maths a week by a private tutor, paid for by the applicant's mother.        Between 1977 and 1978 the Local Education Authority assessed the applicant as handicapped, in that he was educationally sub-normal and/or maladjusted so as to require special educational treatment within the meaning of the Handicapped and Special School Regulations 1959.        From May 1979 to July 1982 the applicant attended a special school.   In September 1982 the applicant commenced at a further special school, and continued to attend there until its closure in September 1985.   During the applicant's attendance at this special school, the applicant's mother made repeated requests to the Local Education Authority that her son be moved to an ordinary school.   After the closure of the school the majority of the pupils were transferred to a local special school.   However, it was agreed between the applicant's teachers and the applicant's mother that attempts would be made to place the applicant in a mainstream school.   Despite repeated requests from the applicant's mother that a suitable school be found, from September 1985 to November 1986 (age 14 to 15) the applicant was not registered at any school. During this period the applicant's mother paid for him to have some lessons from a private tutor (costing £32 per week).        From November 1986 to June 1987, the applicant attended an ordinary school. At this school, the applicant was not allowed to participate in main curriculum subjects, as he had not completed any of the course work for the C.S.E. or G.C.E. public exams which the other pupils were due to sit.   He did, however, participate in art, design and media and sporting activities. In June 1987, aged 16, the applicant left school.        In 1993 the applicant brought proceedings in the High Court seeking damages against the Local Education Authority for breach of statutory duty and/or negligence.   The proceedings alleged failure properly to provide for the applicant's education from mid 1976 until late 1986.   At first instance, in July 1993, the applicant's claim was struck out as disclosing no reasonable cause of action.   The applicant appealed to the Court of Appeal. It was held by the Court of Appeal on 19 April 1994 that the applicant's claim for damages for breach of statutory duty should remain struck out, however the appeal of the applicant against the striking out of his claim for damages for common law negligence was allowed. On 29 June 1995 the House of Lords upheld the opinion of the Court of Appeal.          The common law negligence claim against individual professionals working for the Local Education Authority, which was allowed by the House of Lords in their judgment of 29 June 1995, is currently before the domestic courts.   COMPLAINTS        The applicant invokes Article 2 of Protocol No. 1 of the Convention.   The applicant complains that between June 1977 and May 1979 and between September 1985 and November 1986 he was denied access to an education.   Further the applicant complains that the Local Education Authority failed to make a proper assessment of his abilities and consequently sent him to a special school whereas he should have remained in an ordinary school. The applicant also complains of a lack of an effective remedy under English Law for the educational impairment and consequential psychological impairment he suffered, as a consequence of the denial of his right to education during two periods of his childhood.   THE LAW        The Commission recalls that pursuant to Article 26 (Art. 26) of the Convention it may only deal with an application where all domestic remedies have been exhausted according to the generally recognised rules of international law.   Under this provision, an applicant is obliged to make "normal use" of remedies likely to be effective and adequate and remedy the matters of which he complains (see eg. Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4, p. 4 at p. 64).        The Commission notes that the proceedings brought by the applicant in the High Court seeking damages against the Local Education Authority have not yet terminated.   Whilst the applicant's claim for damages for breach of statutory duty has been struck out, the common law negligence claim against individual professionals working for the Local Education Authority was allowed to proceed by the House of Lords in their judgment of 29 June 1995 and is currently before the domestic courts.   While the applicant asserts that he is now denied the right to pursue a claim against the Local Education Authority in relation to their breach of statutory duty, it is conceivable that the applicant will obtain compensation for the very matter of which he complains through his action against individual professionals employed by the Local Education Authority.   In these circumstances the Commission finds that the applicant has not exhausted domestic remedies.        It follows that the application must be rejected under Article 26 in conjunction with Article 27 para. 3 (Art. 36+27-3) 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