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KEATING v. THE UNITED KINGDOM

Doc ref: 29787/96 • ECHR ID: 001-124490

Document date: September 10, 1997

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KEATING v. THE UNITED KINGDOM

Doc ref: 29787/96 • ECHR ID: 001-124490

Document date: September 10, 1997

Cited paragraphs only

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

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