Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28915/95

by S.P.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 3 July 1994 by

S. P. against the United Kingdom and registered on 12 October 1995

under file No. 28915/95;

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 1986. He brought

domestic proceedings by his mother and next friend. He is represented

before the Commission by his mother. The facts of the case, as

submitted by the applicant, may be summarised as follows.

A. The particular circumstances of the case

The applicant is dyslexic. This means that, despite his high

intelligence, he has difficulties with spelling, written mathematics,

handwriting and that he has poor motor co-ordination. Further the

applicant has a significant weakness in short term auditory sequential

and visual memory and a weakness in laterality of knowledge. These

learning difficulties have caused the applicant to have serious

emotional, behavioural and social problems, including suicidal

tendencies.

The applicant had begun to read and write prior to commencing

school. He commenced primary school in September 1991, shortly before

his fifth birthday. The applicant's mother was concerned at her son's

failure to progress at school, and she consequently requested that the

Local Education Authority ("LEA") carry out an assessment (but not a

statutory assessment under the Education Act 1981) of her son's

educational abilities. In January 1992, when the applicant was aged

5 years 4 months, an LEA Educational Psychologist produced a report

which stated that overall the applicant was in the top 15% of children

for his age but that he had weaknesses in short term memory, reading,

spelling and numbers which suggested some underachievement, taking into

account his ability. The report concluded by observing:

"It is my opinion that [S.P.] is an able boy whose cognitive

skills are above average. It is important, therefore, that there

is awareness of this ability as [S.P.] may not produce evidence

to this effect on paper. The reasons for [S.P.'s] weak results

in the basic skills may be due to emotional factors or they may

be due to more specific difficulties ...".

At Easter 1992 the applicant's mother removed her son from the

initial primary school and placed him in another nearby school. At

this school, likewise, the applicant failed to perform according to his

abilities. The applicant's mother obtained a further report from the

LEA in May 1993, carried out by the same Educational Psychologist.

This report concluded that:

"[S.P.] is performing at a level well above his age in both

reading and in number. His spelling skills are also above his

age but weaker than expected and taking into account his general

level of ability ...[S.P.] does have one specific area of

weakness, that of short term auditory memory, and this appears

to have some effect on his progress in the area of spelling, and

in his ability to attending class ...".

In March 1993 the applicant's mother independently obtained a

report on the applicant by a consultant in learning abilities and

difficulties (Dr.C.). This report stated that the applicant was

dyslexic and commented with regard to a statutory assessment:

"[S.P.'s] difficulties are much above the standard where [the]

County Council would consider making a multi-professional

assessment under Section 5 of the 1981 Education Act, which might

lead to a Statement, and if he was placed within the ordinary

classroom of the local authority school, he would be unlikely to

receive specialist teaching or in-class support."

The report concluded that:

"[S.P.] is a student of high intellectual ability, who shows a

range of highly developed skills and learning, other skills at

an average level, but has difficulties in fine motor control, and

auditory short term memory. His reading, spelling, writing and

numeracy skills are age appropriate, but below the level

anticipated of a student of his age and high intellectual

competence. He is therefore under-achieving to some extent in

his basic skills development, and this will impair his work on

his curriculum, and affect his attitude to school ...".

The applicant remained at the school until September 1993 when

his mother removed him and thereafter he attended an independent

school. The applicant was removed from this school by his mother within

a year, as she considered the school was failing to help her son

appropriately and he commenced at a further independent school.

In May 1994 the applicant's mother requested that the LEA carry

out a statutory assessment of the applicant's special educational

needs, pursuant to Section 9 of the Education Act. The LEA replied by

letter stating:

"Nationally about 20% of children may have some form of special

educational need at some time. A formal assessment under the 1981

Act, however, is only applicable in a minority of cases -

nationally around 2% of children where a child's needs are so

severe or complex as to require the local education authority to

determine and arrange for special educational provision for the

child ...

It is clear from Dr. C's report that [S.P.'s] difficulties are

not such as to require a formal assessment under the 1981

Education Act. The authority will not therefore be complying

with your request."

Leave was granted to the applicant to challenge, by means of

judicial review, the decision of the LEA not to make a statutory

assessment of the applicant. However, the High Court, on

23 January 1995, upheld the decision of the LEA.

In 1995 the applicant's latest school requested that the

applicant be removed, as they were unable to supply the specialist

teaching he required. The applicant's mother commenced home education

and has provisionally obtained a place for the applicant at a

specialist independent school, to commence in September 1997.

The mother of the applicant independently obtained a report on

the applicant by a further psychologist, dated 12 June 1995. The report

dealt with the applicant's intellectual abilities, educational

attainments, specific learning difficulties, personality, and social

and behaviour adjustment. The report noted, inter alia, that the

applicant's personality profile showed significant deviations from the

norm, and noted a concern over suicidal thoughts and tendencies. The

report concluded (inter alia) that:

"In my opinion [S.P.] would benefit from a Statement of Special

Educational Needs in order to afford him the necessary protection

in law which should address both his learning difficulties and

his emotional, social and behaviour problems."

This report was sent to the LEA.

In November 1995 the LEA agreed to make a statutory assessment

of the applicant's special educational needs.

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 1981 Act). 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.

Section 5(1) of the 1981 Act deals with a child for whom the LEA

are responsible and who in their opinion has or probably has special

educational needs of a kind which calls for them (as opposed to the

school) to determine what special educational provision should be made

to meet these needs. In such a case the LEA are required to make an

assessment of the child's educational needs.

Section 7(1) of the 1981 Act requires that if the LEA, having

made an assessment under section 5, are of the opinion that they should

be the ones to determine the special educational provision which should

be made for the child, then they should make and maintain a statement

of his special educational needs and section 7 (2) of the 1981 Act

imposes upon the LEA the duty to arrange that the special educational

provision is made for him.

Section 9(1) of the 1981 Act provides that:

"parents of a child for whom no Statement of Special Educational

Needs is maintained by the local education authority may ask the

authority to make an assessment of those needs. The authority

must comply with that request unless it is in their opinion

unreasonable."

Special educational assessments are subject to periodic review.

Parents may appeal against the LEA's statement to an appeal committee

which may remit the case for further consideration by the LEA. Further

appeal can be made against the LEA's decision to the Secretary of State

for Education (there is no right of an oral or adversary hearing with

this form of appeal). In the final instance judicial review of the

Secretary of State's decision can be made, on the basis of

irrationality, illegality or procedural impropriety.

Likewise, judicial review can be sought of the LEA's decision not

to comply with a parent's request for a statement of special education

needs under section 9(1) of the 1981 Act.

COMPLAINTS

The applicant complains that he has been denied the right to an

education, in violation of Article 2 of Protocol No. 1.

The applicant considers that teaching staff at each of the

schools (including two state run schools and two independent schools)

have failed to take account of his special needs. In particular the

failure by teachers to address the applicant's problems with short term

memory, have resulted in him being unable to derive a positive benefit

from the education system. Further the neglect of the applicant's

learning difficulties has contributed to the applicant's current

behavioural, emotional and social problems.

The applicant further complains about the refusal of the LEA to

make a statutory assessment of him with regard to his special

educational needs and the refusal of the High Court to overturn this

decision by means of judicial review. The LEA refused the request from

the applicant's mother for a statutory assessment of the applicant in

May 1994. They maintained this refusal until November 1995, when an

assessment was agreed to.

THE LAW

The applicant complains that the failure of the schools he has

attended to recognise and assist him with his learning difficulties and

the initial refusal of the LEA to assess him with regard to his special

needs, amounts to a violation of Article 2 of Protocol No. 1 (P1-2).

Article 2 of Protocol No. 1 (P1-2) provides as follows:

"No person shall be denied the right to education. In the

exercise of any function 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 United Kingdom has entered a

reservation to Article 2 of Protocol No. 1 (P1-2), which reads as

follows:

"... in view of certain provisions of the Education Acts in the

United Kingdom, the principle affirmed in the second sentence of

Article 2 (Art. 2) is accepted by the United Kingdom only in so

far as it is compatible with the provision of efficient

instruction and training, and the avoidance of unreasonable

public expenditure."

Article 64 (Art. 64) of the Convention provides as follows:

"1. Any State may, when signing this Convention or when

depositing its instrument of ratification, make a

reservation in respect of any particular provision of the

Convention to the extent that any law then in force in its

territory is not in conformity with the provision.

Reservations of a general character shall not be permitted

under this Article.

2. Any reservation made under this Article shall contain a

brief statement of the law concerned."

In the light of developments in the case-law of the Convention

organs on Article 64 (Art. 64) of the Convention, questions may arise

as to whether the reservation entered to Article 2 of Protocol No. 1

(P1-2) is valid (see, in particular, Eur. Court HR, Belilos v.

Switzerland judgment of 29 April 1988, Series A no. 132, pp. 25-28,

paras. 52-59), and if it is valid, whether it is applicable to the

present case which concerns largely provisions which entered into force

subsequent to the making of the reservation (see Eur. Court HR, Fischer

v. Austria judgment of 26 April 1995, Series A no. 312, pp. 18-20,

paras. 37-41). The Commission is not, however, required to resolve

these questions as the application is in any event inadmissible for the

following reasons.

Article 2 of Protocol No. 1 (P1-2) constitutes a whole that is

dominated by its first sentence (Eur. Court HR, Kjeldsen, Busk Madsen

and Pedersen judgment of 7 December 1986, Series A no. 23). In the

present case, there is no question of the applicant having been

excluded from the educational facilities of the State. The applicant's

mother voluntarily removed her son from two State schools and one

private school as she did not consider he was receiving the extra help

he required. She was requested to remove her son from a further private

school as they were unable to meet the special teaching requirements

of the applicant.

The Commission recalls that Article 2 of Protocol No. 1 (P1-2)

is a right which:

"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" (Eur. Court HR,

Belgian Linguistic judgment of 23 July 1968, Series A no. 6,

pp. 30-32, paras. 3-5).

Such regulation is permitted as long as the substance of the

right to education is preserved.

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 (for cases on special education see No. 14135/88,

Dec. 2.10.89, D.R. 62, p. 292 and No. 14688/89, Dec. 4.12.89, D.R. 64,

p. 188). 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 other 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.

As regards the facts of the present case the LEA initially

obtained, at the request of the applicant's mother, professional

reports, albeit not statutory assessments, on the applicant. From these

reports the LEA concluded that the applicant was of above average

intelligence and his short term memory problems were not such as to

require a formal statutory statement, which would have been the first

step towards providing special teaching provisions for the applicant.

To the contrary, it was the LEA's view that the applicant's needs could

be sufficiently catered for in the classroom. In May 1994 the LEA

refused to make a statutory assessment of the applicant. They made this

decision on the basis of the then current independent psychologist's

report (Dr. C.), which itself stated that the applicant was not

exhibiting difficulties at a level which would normally lead to a

statutory assessment. It appears from the facts that over a period of

several years and four changes of school, the applicant's learning

difficulties and associated behavioural, social and emotional problems

magnified. When the LEA received a further report of 12 June 1995 from

a different psychologist stating in unambiguous terms that a statutory

assessment was required, they acceded to this request.

The Commission considers that, in these circumstances the LEA

cannot be criticised for initially refusing, in May 1994, to make a

statutory assessment of the applicant, albeit with hindsight the

applicant's mother was shown to be right in her concerns. The

Commission in particular notes that in November 1995 having received

a psychologist's report that recommended an assessment, the LEA agreed

to undertake a statutory assessment of the applicant's special

educational needs.

With regard to criticisms made of the various teaching that the

applicant has received in the four schools he has attended, it is not

the Commission's task to assess the standard of teaching provided by

schools.

In these circumstances the Commission concludes that the

applicant has not been 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 application is 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.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

S.P. v. THE UNITED KINGDOM

S.P. v. THE UNITED KINGDOM

LEXI