Lexploria

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)

Menu

FORD v. THE UNITED KINGDOM

FORD v. THE UNITED KINGDOM

LEXI