CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 avril 2023

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sA04AE28A { width:35.22pt; display:inline-block } .sE13162EA { width:134.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     THIRD SECTION CASE OF T.H. v. BULGARIA (Application no. 46519/20)     JUDGMENT Art 14 (+ Art 2 P1) • Discrimination • Right to education • Primary school’s response, including reasonable adjustments, to aggressive and disruptive behaviour of child diagnosed with hyperkinetic and scholastic-skills disorder • Objective and reasonable justification for different treatment • School (head teacher and teacher) engaged in a difficult balancing act between applicant’s and classmates’ interests, including their safety, well-being and effective education • Art 14 not requiring all possible adjustments to alleviate disparities resulting from someone’s disability regardless of costs or practicalities involved   STRASBOURG 11 April 2023   FINAL   11/07/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of T.H. v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Georgios A. Serghides,   Yonko Grozev,   Jolien Schukking,   Darian Pavli,   Peeter Roosma,   Andreas Zünd , judges , and Milan Blaško, Section Registrar , Having regard to: the application (no. 46519/20) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr T.H. (“the applicant”), on 14 October 2020; the decision to give the application priority; the decision to (a) give the Bulgarian Government (“the Government”) notice of the complaint under Article 14 of the Convention about the way in which the applicant was treated at the school which he attended in years one and two, and (b) declare the remainder of the application inadmissible; the decision not to disclose the applicant’s name; the parties’ observations; Having deliberated in private on 14 March 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The chief questions in this case are whether staff of the school which the applicant – a child who had behavioural difficulties and was subsequently diagnosed with a hyperkinetic disorder and a specific developmental disorder of scholastic skills – attended in years one and two discriminated against him by treating him less favourably on grounds of his disability, contrary to Article 14 of the Convention, and reasonably accommodated that disability, as required under that provision. THE FACTS 2.     The applicant was born in 2004 and lives in Sofia. He was represented by Mr Y. Georgiev, a lawyer practising in Sofia. 3.     The Government were represented by their Agent, Ms I. Nedyalkova of the Ministry of Justice. THE APPLICANT’S PRIMARY SCHOOLING Events preceding the applicant’s enrolment in primary school 4 .     The applicant was due to begin primary school in September 2011, just before turning seven (the age at which school becomes compulsory in Bulgaria). His parents selected a mainstream municipal school which was close to their home and which offered English lessons from year one. 5 .     A report drawn up by the school’s pedagogical advisor in September 2011 recorded that a routine aptitude test which the applicant had taken in March 2011 in the presence of his father had shown that it was borderline whether he was ready to start school. He had, in particular, exhibited behavioural problems and cognitive dysfunctions which could complicate the process of learning and adapting at school. His father had said that the kindergarten teachers and he and the applicant’s mother had been having difficulties controlling his behaviour. The report went on to suggest that work with a speech therapist could avert serious educational difficulties, and that if the applicant’s parents and his teacher wished, it was also possible to involve the school’s psychologist and consult with child-development specialists. 6 .     In June 2011 the school’s head teacher telephoned the applicant’s father to invite him to discuss the test results and the expected difficulties with the applicant’s education and what could be done about them, but he apparently refused to meet with her at that time. Year one (2011/12) Events during the first term and the beginning of the second term 7 .     At the end of September 2011, about a week after the beginning of the school year, the applicant’s teacher contacted the pedagogical advisor to seek her help with difficulties that she was facing with his adaptation period. About two days later the teacher and the pedagogical advisor met with the applicant’s mother and informed her of his challenging behaviour at school. 8 .     At the beginning of October 2011, the applicant’s parents agreed that he should start working with the pedagogical advisor. In the course of the ensuing proceedings before the Commission for Protection from Discrimination (see paragraph 55 below), the pedagogical advisor testified that she had worked with the applicant’s class once a month. 9 .     On an unspecified date in the autumn of 2011, probably 25 November, the pedagogical advisor and the applicant’s teacher met with the applicant’s parents again. A third meeting was held on 15 December 2011. According to the applicant’s parents, at that meeting they were accused of not raising him correctly. The Government retorted that there was no evidence that such a thing had been said. According to a report by the pedagogical advisor and the teacher drawn up the day after the meeting, they had conveyed to the applicant’s parents their concern about a deterioration in the applicant’s behaviour, but had been faced with a lack of understanding about the nature of the problem. They had recommended consultations with a family therapist, and the pedagogical advisor had suggested one such therapist. The applicant’s parents had stated that they would review the proposal and seek appropriate consultations. It does not appear that they followed up on the proposal. According to them, between December 2011 and March 2012 the applicant continued attending school without them being advised of any problems with his behaviour. Meeting of the school’s commission for the prevention of anti-social behaviour 10 .     On 15 March 2012 the school’s commission for the prevention of anti-social behaviour met, apparently on the initiative of the applicant’s teacher and the head teacher, to discuss the applicant’s case. His parents also attended the meeting. According to a contemporaneous record of the meeting, the applicant’s teacher described his challenging behaviour, saying in particular that he was provoking other children and then observing how they embarrassed themselves and were punished, and that it was not possible in some lessons, in particular English language, to teach under normal conditions. The head teacher, the deputy head teacher and the applicant’s teacher insisted that the applicant’s behaviour ran counter to the school’s rules and that the need to control it was preventing other pupils from getting the requisite attention and education. The applicant’s mother said that his teacher and she and his father were working to improve his behaviour, and that, in her view, it was getting better. The head teacher noted that the applicant’s poor reputation from kindergarten had preceded him, and that some parents had unenrolled their children from the school as soon as they had learned that he would be attending it. She suggested that the applicant’s teacher and parents try jointly to tackle his situation. The applicant’s mother said that the family had contacted psychologists but could not afford their fees. The pedagogical advisor replied that she could consult parents as well, but her offer was apparently not taken up, and it was eventually agreed that the applicant’s parents would seek independent psychological advice. The head teacher warned them that if the applicant’s behaviour did not improve, he would be referred to the school’s pedagogical council with a proposal that he be punished. 11 .     According to the applicant, at that meeting his teacher threatened his parents that she would recommend to the parents of his classmates to complain about him, so he would have no choice but to leave the school. The Government noted that there was no evidence that such a thing had been said. Incidents in March 2012 12 .     According to the applicant, during a break between lessons on 19   March 2012 he was assaulted by other pupils, pushed to the ground and scratched on the forehead. The same day his father obtained a medical certificate for that injury. Two days later the applicant’s mother wrote to the head teacher about the incident and requested that steps be taken to ensure his safety at school. The head teacher replied the same day that she would investigate the matter. According to a complaint to the school dated 22 March 2012 by the mother of the boy who had allegedly scratched the applicant, the applicant had been systematically harassing him, calling him a “stupid animal”, “baby”, “midget” and a “dimwit”, telling him “your mother died today”, scribbling on his clothes with a marker, trying to destroy his school supplies, spitting in his face, disturbing him in the toilet, and kicking him in the groin, most recently on 19 March. All that had caused her son to defend himself. According to the head teacher’s submissions in the ensuing proceedings before the Commission for Protection from Discrimination (see paragraph   50 below), she had investigated the incident and had found that the applicant had not been assaulted by other pupils, but had on the contrary kicked the other boy. This was also stated in a report to the head teacher dated 21 March 2012 by the music teacher, who had witnessed the aftermath of the incident and taken the other boy to the school’s resident nurse for a medical examination. 13 .     According to the applicant, during a break between lessons a week later, on 27 March 2012, he was stabbed on the forehead with a pen. The same day his mother wrote to the head teacher about the incident, reiterating her request that steps be taken to ensure his safety. According to the head teacher’s submissions in the ensuing proceedings before the Commission for Protection from Discrimination (see paragraph 50 below), she had investigated the incident and had found that the stabbing had been an accident and that the teacher had advised the parents of the pupil who had done it about the incident. 14 .     On 23 March 2012 the mother of another classmate of the applicant complained to the head teacher that the applicant had been kicking her daughter and pulling her hair. 15 .     On 29 March 2012 seventeen parents of classmates of the applicant complained to the head teacher about him. They alleged that he had been misbehaving, provoking his classmates with insults and aggressive behaviour, bringing a screwdriver to school and threatening his classmates with it, cutting the hair of other children and their school supplies with scissors, hitting and kicking them during breaks, and rummaging through their bags and taking items belonging to them. Work with Animus 16 .     In the meantime, on 19 March 2012 the applicant’s parents wrote to the local child-protection authority to seek its assistance with arranging for him to be examined by an independent psychologist. They also expressed their misgivings that the applicant might be ill-treated following the meeting of the school’s commission for the prevention of anti-social behaviour (see paragraph 10 above). On 9 April 2012 that authority referred them to Animus, a foundation specialising in rehabilitation, counselling and psychotherapy, for it to provide psychological consultations with the family for a period of six months. 17 .     On the initiative of Animus, on 24 April 2012 its director and the two psychologists who were working with the applicant and his parents met with the parents, the head teacher, the applicant’s teacher and the school’s pedagogical advisor to discuss the applicant’s situation. The head teacher warned that the applicant would likely be punished, but took it upon herself to try to persuade the school’s pedagogical council to limit the sanction to a warning that the applicant would be transferred to another school. In its report about the meeting, Animus expressed the view that it would be counterproductive to transfer the applicant to another school, and stated that its specialists had begun consultations with him and his parents. Disciplinary sanction imposed on the applicant 18 .     On 18 May 2012 the school’s pedagogical council met in the presence of the applicant’s parents to discuss his behaviour. It was presented with a table detailing forty-nine occasions between January and May 2012 on which the applicant had misbehaved in class. 19 .     In her written report to the council, the applicant’s teacher described the problems with his behaviour, stating in particular that he systematically failed to abide by the school’s rules, was aggressive to other pupils and teachers, had no wish to engage with the teaching process, especially in English-language lessons, and did not respect authority. She went on say that she had tried to tackle that behaviour, talking often with his parents and forming a team consisting of all the teachers dealing with his class and the pedagogical advisor. Those efforts had unfortunately been fruitless, and the applicant’s behaviour had remained challenging, which had led to complaints by the parents of other pupils. She proposed that he be punished with a warning that he would be transferred to another school. 20 .     At the meeting of the council, the applicant’s teacher again recounted the problems with the applicant and the steps taken to tackle them, and proposed that he be punished with a warning that he would be transferred to another school. The head teacher referred to the complaint by parents of classmates of the applicant (see paragraph 15 above), described his work with Animus (see paragraph 16 above), and endorsed the teacher’s proposal. Several other teachers also referred to incidents with the applicant and stated that he was systematically disrupting lessons and acting aggressively towards his classmates. The applicant’s parents opposed the proposal. According to them, the displays of aggression on his part had been rare and provoked by teachers. They were trying to tackle his behaviour, but his teacher had not kept up her initial efforts to ensure that his adaptation period at school went well. They urged the council to give the applicant a chance and said that they hoped that his behaviour would improve as a result of the psychological programme in which he had been enrolled. The pedagogical advisor said that in her view a sanction against the applicant would have a therapeutic effect. 21 .     At the end of the meeting the pedagogical council recommended to the head teacher, by thirty-eight votes to zero with three abstentions, to punish the applicant with a warning that he would be transferred to another school. Three days later, on 21 May 2012, the head teacher made an order in those terms, but deferred the disciplinary sanction until the beginning of the next school year in September 2012. The applicant’s parents did not avail themselves of the possibility to appeal against the order to the regional education inspectorate. 22 .     On 10 July 2012 the applicant’s parents wrote to the head teacher to contest the order, alleging also that the applicant’s teacher had on many occasions pulled his hair and ears, chased him out of class, left him without breakfast, twice made him stand upright for four hours without being able to get water or food or go to the toilet, and had instructed an older pupil to search his pockets. All that had distressed the applicant and had demotivated him from going to school. In her reply to that complaint, dated 12 July 2012, the teacher denied those allegations. She explained, specifically with reference to the pocket-searching allegation, that on one occasion a former pupil of hers had come to see her and had rushed to take a screwdriver which the applicant had been pointing at a classmate. Year two (2012/13) Formal diagnosis of the applicant’s disorders and steps taken with a view to accommodating his recognised special educational needs 23 .     Psychologists from Animus (see paragraph 16 in fine above) continued working with the applicant throughout the summer of 2012 and in September referred him for assessment to a child psychiatry clinic. Having assessed him, on 27 September 2012 three specialists from the clinic formally diagnosed him with a hyperkinetic disorder and a specific developmental disorder of scholastic skills, and stated that he could on that basis be recognised as having special educational needs. They recommended that he follow an individual education plan and be assisted by a resource teacher and a speech therapist. 24 .     On 4 October 2012 the applicant’s parents informed the head teacher of the clinic’s findings and asked her to convey its recommendations to his teacher. 25 .     A week later, on 11 October 2012, representatives of Animus, including the psychologists dealing with the applicant and his parents, met with the head teacher, the applicant’s teacher, the school’s pedagogical advisor and the applicant’s parents to discuss the applicant’s situation in the light of the formal diagnosis of his disorders. The applicant’s father claimed that his teacher had had a negative effect on the applicant’s development because she was aggressive towards him, and that the teacher of another class dealt better with children with special educational needs. For her part, the applicant’s teacher expressed her exasperation with his case and the lack of proper communication with his parents. The head teacher rejected the suggestion that the applicant should move to another class, on the basis that the school had a policy of having only one child with special educational needs per class, and proposed education on an individual basis with the same teacher and that he be with other pupils only during breaks between lessons. In an ensuing report to the regional education inspectorate dated 15 January 2013, the head teacher explained that in her view moving the applicant to another class would not resolve his problem and accommodate his needs, because in the view of the school psychologist and the psychologist from Animus working with him, his challenging behaviour would continue in the school environment, irrespective of the personalities of his teacher and his classmates. In a subsequent complaint to the social-assistance authorities, the applicant’s parents stated that they could not agree with the proposal of education on an individual basis, since in their view it was important for him to interact with his classmates in class rather than only during breaks, and that in their view the only solution was for him to be moved to another class. 26 .     On 15 October 2012, having assessed the applicant at the request of his father, a complex pedagogical assessment team from the regional education inspectorate certified that he had special educational needs and recommended that he be provided with integrated education in a mainstream school and be assisted by a resource teacher, speech therapist and a psychologist. 27 .     Two days later, on 17 October 2012, the applicant’s parents brought that recommendation to the head teacher’s attention. The following day, 18   October 2012, the head teacher sent to the applicant’s mother a draft individual education plan, noting that it envisaged two lessons a week with a resource teacher, and invited her to come to the school to lodge a formal request in that connection. 28 .     On 6 November 2011 the applicant’s mother formally requested that he be assisted by a resource teacher. The same day the head teacher appointed a team consisting of the applicant’s teacher, a speech therapist, a psychologist and a resource teacher to assess the applicant’s educational needs and devise an individual plan for him. The plan, which covered the rest of the school year, was completed on 9 November 2012. It was approved by the applicant’s mother two months later, on 10 January 2013. 29 .     According to her subsequent testimony before the Commission for Protection from Discrimination (see paragraphs 50 and 55 below), the resource teacher started working on a one-to-one basis with the applicant in November 2012. In a report to the head teacher dated 18 December 2012, the resource teacher recorded that the applicant’s parents had informed her of his precise diagnosis with three weeks of delay, that he was trying to sabotage her work, and that at the insistence of his parents she had increased the number of weekly lessons she had with him from two to three, but that this had happened at the expense of the other pupils with whom she was working. She could not increase the number of lessons with the applicant further, since her group consisted of thirteen pupils and she could teach a maximum of thirty lessons per week. 30 .     Throughout that time, the applicant also continued attending regular lessons. He was on a number of occasions off school for medical reasons. Rescission of the applicant’s disciplinary sanction 31 .     Meanwhile, on 8 November 2012 the head teacher, citing the applicant’s conditions (see paragraph 23 above), rescinded the disciplinary sanction imposed on him in May 2012 (see paragraph 21 above). It is unclear whether the applicant’s parents were notified of that decision. Incidents and complaints between October 2012 and January 2013 (a)    Incidents in October 2012 32 .     The applicant alleged that on 4, 5, 8 and 9 October 2012 he had been “hit, humiliated, and called a liar and a good-for-nothing”. He also alleged that he had regularly been given poor marks and been reprimanded without cause. His teacher had turned his classmates against him, as a result of which several of them had assaulted him during a break between lessons in the playground. 33 .     In an email to the head teacher dated 8 October 2012, the applicant’s mother described a fight on 5 October 2012 between the applicant and two girls from his class, alleging that it had occurred because earlier his teacher had called him “a good-for-nothing”. She went on to allege that the previous day, 4 October 2012, classmates of the applicant had thrown his pencils into the rubbish bin in his absence during a break, and that the teacher had not believed his allegations about the incident. The applicant’s mother expressed her concern that he was being singled out, given poor marks and reprimanded with a view to humiliating him in the eyes of his classmates and excluding him from school. 34 .     In a further email to the head teacher dated 10 October 2012, the applicant’s mother alleged that on 8 October a group of his classmates had assaulted him during a break, and that on 9 October 2012 the teacher had called him a “liar” in front of the class because he had told his parents about what had been happening at the school. The applicant’s mother went on to contend that the teacher was trying to conceal her words by harassing the children physically and psychologically. 35 .     In a report to the head teacher dated 10 October 2012, the deputy head teacher recorded that the same day the applicant’s father had complained to her that (a) on 8 October 2012 classmates of the applicant had assaulted him and pushed his breakfast to the ground, and that (b) the applicant’s teacher had been insulting and humiliating him and turning his classmates against him. Immediately after that conversation the deputy head teacher had spoken to the applicant’s classmates and had established that he had dropped his sandwich on the ground and had then thrown bits of it towards a classmate of his and had kicked her. Seeing this, other classmates had intervened and had kicked him, and an older pupil had then broken up the fight. The applicant’s classmates had also denied ever hearing the teacher insult the applicant and had said that she had only scolded him when he had not wished to work in class. The deputy head teacher had also asked the applicant himself whether his teacher had insulted him, and he had replied that she had told him “bungler, stand up”. His classmates had all stated that this allegation was untrue. Being then pressed to say why he was making up such stories, the applicant had replied that his teacher wished to move him to another school. In response to a further question as to why he thought that, he had replied that his father had told him so. During the conversation, the applicant had been walking around the classroom, had spat on three desks, and had poured pencil shavings into another pupil’s bag. 36 .     The applicant’s parents reiterated all the allegations made by his mother in her emails (see paragraphs 33-34 above) in a formal complaint to the head teacher dated 11 October 2012. (b)    Incident on 9 November 2012 37 .     On 9 November 2012 the applicant’s English-language teacher slapped him on the face. His mother complained to the head teacher about this in an email dated 12 November 2012; she also expressed her concern that the English-language teacher did not appreciate that the applicant had special educational needs. The applicant’s parents reiterated the complaint on 11   December 2012 and insisted that the teacher be punished. Having heard the applicant’s classmates and the teacher, on 14 December 2012 the head teacher formally reprimanded her by way of a disciplinary sanction, citing breaches of the school’s internal rules. (c)    Complaint by the parents of the applicant’s classmates 38.     On 21 November 2012 seventeen parents of classmates of the applicant complained to the head teacher about his behaviour in school. They reiterated the allegations that they had made in March 2012 (see paragraph   15 above), and went on to say that the applicant often brought a covert sound-recording device to school and was thus breaching their children’s and the teachers’ right to privacy. (d)    Complaints by the applicant’s parents and resulting inspection by the regional education inspectorate 39.     Following complaints by the applicant’s parents to various authorities, in mid-January 2013 two inspectors from the regional education inspectorate visited the school to investigate his case. In their report, dated 16 January 2013, they recorded that the school had not abandoned seeking a constructive dialogue with the applicant’s parents and finding a solution which would satisfy all the parties involved, that the applicant had been provided with the requisite support, and that there was no evidence that the applicant’s parents had been pressured, as they had claimed, to consent for him to be schooled on a one-to-one basis. (e)    Complaint by the head teacher to the police about the applicant’s father 40.     On 2 December 2012 the head teacher complained to the police that the applicant’s father had entered the school without permission and acted aggressively towards teachers and pupils. The police cautioned him to refrain from such actions. (f)      Complaints by the applicant’s parents in December 2012 and January 2013 41 .     On 11 December 2012 the applicant’s parents complained to the head teacher that on 7 December 2012 his teacher had threatened that if he continued to disrupt lessons with his behaviour and to refuse to study, she would remove him from class, and that she had put pressure on them to move him to education on an individual basis or transfer him to another school. They asserted that the applicant had been removed from his English-language class as well. In an ensuing report to the regional education inspectorate dated 15 January 2013, the head teacher noted that when removed from class on 7   December 2012 the applicant had been supervised by the chief duty teacher, as required under the school’s regulations. 42 .     On 10 January 2013 the applicant’s parents complained to the head teacher that on 7 January 2013 his English-language teacher had removed him from class. They alleged that she had been doing that systematically, had displayed no wish to work with him, and had not attempted to ensure that his adaptation period went well. In her ensuing report to the regional education inspectorate (see paragraph 41 above), the head teacher noted that after he had been removed from his English-language class on 7 January 2013, the applicant had been supervised first by her and then by the chief duty teacher, as required under the school’s rules. Interruption of the applicant’s schooling in February 2013 43 .     On 4 February 2013 a child psychiatry clinic recommended that the applicant interrupt his schooling for the rest of the school year on the basis that his continued attendance was disruptive for the school environment and not conducive to his personal development and his forming of a constructive attitude. The clinic recommended that he continue his education by way of individual lessons with a resource teacher. 44 .     A week later, on 12 February 2013, the applicant’s parents brought that recommendation to the head teacher’s attention and asked her to allow him to interrupt his studies for the rest of the school year. Two days later, on 14   February 2013, the head teacher allowed the applicant to interrupt his schooling for medical reasons, effective the same day. 45 .     On 30 May 2013 an expert commission of the State Agency for Child Protection, which had inspected the school following a complaint by the applicant’s parents in December 2012, gave instructions to the head teacher. The commission noted in particular that the head teacher had not cited any legal basis for her decision to allow the applicant to interrupt his schooling, and that by law education up to the age of 16 was compulsory. The school had thus interrupted the applicant’s education without ensuring, in breach of the law, that it could continue on an individual basis. The commission instructed the head teacher to draw up and propose to the applicant’s parents, by 28 June 2013, an individual education plan matching his specific needs. Continuation of the applicant’s education in other schools 46 .     In accordance with his parents’ wishes, in 2013/14 the applicant transferred to another mainstream school, where he repeated year two. He then moved again and spent the first term of 2014/15 in a specialised school for children with learning disabilities, but was transferred to another mainstream school for the second term of that school year and remained there until he completed his primary education in 2018/19. 47 .     According to the applicant, the mainstream school which he attended from the second term of 2014/15 onwards organised his schooling in a way corresponding to his special educational needs, which allowed him to adapt to the school environment and improve his educational and behavioural performance. The Government pointed out that according to the records about the applicant’s primary education and the testimony of his teacher in that school before the Sofia City Administrative Court (see paragraph 62 below), for four terms in that school the applicant had followed an individual education plan, without attending classes with other students, and for one term a combined plan, attending only sport and art lessons with other pupils and being taught other subjects on a one-to-one basis, in a separate room. According to the evidence of his teacher in that school, the applicant had a good intellect, could cope well with the educational material, and was receiving constant support from his parents, who had at first been distrustful towards the school but had later come around. He was not aggressive, but sometimes verbally provocative, especially to other boys, and usually addressed teachers in an unduly colloquial manner, despite his parents’ admonishments, and found it difficult to work with some of them. There was a sort of cyclical nature to his behaviour. It was in her view difficult, but he was slowly improving. There had been an incident in which he had falsely accused a classmate of pushing him to the ground, and another incident in which he had tried to kick a teacher whom he had mistakenly accused of inappropriately touching him. COMPLAINT TO THE OMBUDSMAN 48 .     On 21 February 2013 the applicant’s parents complained about his treatment in the first school to the National Ombudsman. In his reply, dated 7   June 2013, the Ombudsman stated, without giving details, that his investigation had revealed that not enough effort had been made to socialise the applicant at the school, and that the school had not organised itself in a way to be able to accept his individuality and accommodate his needs, but on the contrary had contributed to him being in a bad physical and psychological situation. ANTI-DISCRIMINATION PROCEEDINGS 49 .     In August 2013 the applicant’s father complained on his behalf to the Commission for Protection from Discrimination (“the Commission” – see paragraph 84 below). He claimed that the applicant’s teacher (named as first respondent) had directly discriminated against him and had harassed him, and that the head teacher of the applicant’s school (named as second respondent) had failed to take sufficient steps to halt the discrimination against him by teachers and ensure the effective exercise of his right to education. The complaint also alleged that the teacher and the head teacher had failed to accommodate the applicant’s special educational needs, that his teacher had harassed him and had encouraged his classmates to harass him, and that his English-language teacher had also harassed him. First examination of the complaint by the Commission 50 .     The complaint was examined by a three-member panel of the Commission. It obtained submissions and evidence from the applicant, his teacher, the head teacher, and various authorities, and heard a number of witnesses. 51 .     In its decision, delivered in March 2015, the panel found that (a) the teacher had failed to integrate the applicant into the school environment and to assist his integration, thereby discriminating against him on grounds of both disability and personal status, and that (b) by giving the applicant a disciplinary sanction and then allowing the interruption of his schooling, the head teacher had discriminated against him on the same grounds ( реш. № 117 от 17.03.2015 г. по преп. № 286/2013 г., КЗД ). 52 .     One of the three members of the panel dissented. He criticised, inter alia , the majority’s findings of fact. He went on to say that in his view the teacher had done all that she could to help him adapt to the school, and that the head teacher had not discriminated against him either. Judicial review of the Commission’s decision 53 .     The teacher and the head teacher sought judicial review of the Commission’s decision. 54 .     In February 2016 the Sofia City Administrative Court found that the decision had been given by an improperly constituted panel and was hence a nullity, for two reasons. First, one of the members of the panel which had examined the complaint had then not taken part in the decision but had been replaced by another member of the Commission, whereas under the rules of procedure the panel hearing a complaint could not be modified. It was even unclear whether the original or the substitute member had been present at the panel’s final hearing. Secondly, although the panel had at first proceeded on the basis that the applicant had allegedly been discriminated against on grounds of disability, it had in its decision found that he had been discriminated against also on grounds of personal status. Under the rules of procedure, however, complaints involving alleged discrimination on two or more grounds were to be examined by a five-member panel. The court remitted the case to the Commission ( реш. № 747 от 10.02.2016 г. по адм.   д. № 3995/2015 г., АдмС-София-град ). Re-examination of the complaint by the Commission 55 .     A five-member panel of the Commission re-examined the complaint. It obtained written submissions from the teacher, the head teacher, and various authorities. It also re-heard three witnesses already heard by the three-member panel (the school’s pedagogical advisor, the resource teacher who had worked with the applicant in 2012/13, and the school’s deputy head teacher), and obtained further evidence. The applicant’s father presented audio-recordings of exchanges between the applicant and his teacher that the applicant had made covertly and transcripts of those recordings made by him. The panel accepted them de bene esse , noting that they had been made unlawfully and could not be used as evidence. 56 .     In December 2017 the five-member panel found that the school had not discriminated against the applicant ( реш. № 447 от 21.12.2017 г. по преп. № 286/2013 г., КЗД ). 57 .     The panel began by noting that the pedagogical assessment carried out in March 2011 should have made it plain that the applicant would find it hard to adapt at school, but that his teacher and the pedagogical advisor had spotted his behavioural difficulties and had consulted with his parents from the beginning of the first school year. The applicant’s behaviour had, however, been damaging and dangerous for both him and his classmates. The disciplinary sanction subsequently imposed on him had been resorted to only after sustained efforts to engage with his parents, in his own interest. The sanction had been imposed several months before he had been formally recognised as having special educational needs and had been rescinded immediately after that recognition. The head teacher had sought to assist the applicant’s adaptation to school and encourage a change in his behaviour; she had also reacted immediately to the incident involving a slap by his English-language teacher. 58 .     After the applicant’s parents had notified the school of his diagnosis, the school had taken all requisite steps to assist his adaptation to school and ensure his right to education, devising an individual education plan for him and providing a resource teacher, who had actually worked with him. His parents had, however, not properly supported those efforts. This, and the applicant’s consistently challenging and aggressive behaviour had led to a conflict between his parents, the school and the parents of other pupils. His behaviour could not, however, be tolerated to the detriment of other pupils. 59 .     The covert audio-recording submitted by the applicant’s father could not be used in evidence. It was inadmissible for a pupil’s parents to resort to such tactics. Moreover, it could not be excluded that the applicant’s parents had instructed him to provoke his teacher and then record her reaction. 60 .     The applicant’s allegations of discrimination and harassment were not supported by the evidence. It was true that he fell into a particularly vulnerable category, but the school had tried to take special care of him with a view to levelling his educational opportunities. The laws prohibiting discrimination were not meant to place insurmountable obstacles in the way of the normal functioning of public institutions. Judicial review of the Commission’s second decision 61 .     The applicant sought judicial review of the Commission’s decision. He argued that the Commission had assessed the evidence incorrectly and selectively, and that he had in reality been discriminated against. 62 .     The Sofia City Administrative Court obtained further evidence and heard one of the witnesses already heard by the Commission (the pedagogical advisor) and two further witnesses (the applicant’s teacher at the school in which he had subsequently completed his primary education and a social worker who had dealt with the applicant’s case). 63 .     In July 2019 the court dismissed the claim ( реш. № 5080 от   19.07.2019 г. по адм. д. № 1701/2018 г., АдмС-София-град ). 64 .     It noted that the applicant had had difficulties adapting at school from the outset, and that his teacher and the school’s pedagogical adviser had met several times with his parents in relation to that. Despite those efforts, the applicant had not managed to obey the school’s rules. He had displayed aggressiveness towards his classmates and had endangered both them and himself. After the meeting of the commission for the prevention of anti-social behaviour in March 2012, the school had directed his parents to seek specialised advice. The ensuing disciplinary sanction – the warning that the applicant would be transferred to another school – had been prompted by his behaviour and had not amounted to discrimination. On the contrary, a failure to take measures in the face of the applicant’s behaviour would have amounted to undue preferential treatment. 65 .     The head teacher had duly reacted to all complaints of harassment of the applicant at school, as shown in particular by the reprimand which she had given to his English-language teacher. 66 .     The court went on to note that immediately after the applicant had been formally recognised as having special educational needs, the school had offered to switch him to education on an individual basis, and that when his parents had declined that offer, he had been provided, as requested and within the school’s capacities, with a resource teacher. The mere offer of education on an individual basis could not be seen as discrimination, especially since there was evidence that the applicant had for some time followed an individual education plan at the school which he had attended after 2015. The lack of trust by his parents and their resistance to the measures suggested by the school had to a great extent contributed to his challenging behaviour. 67 .     Lastly, the head teacher’s decision to allow the interruption of the applicant’s schooling in early 2013 had not infringed his right to education, since it had been made on the basis of a medical recommendation and an express request by his parents. Appeal to the Supreme Administrative Court 68 .     The applicant appealed to the Su