Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25959/94

by Jeremy Harvey COHEN

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 18 November 1994

by Jeremy Harvey COHEN against the United Kingdom and registered on

15 December 1994 under file No. 25959/94;

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 1984. He brought

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

by Messrs. Teacher Stern Selby, solicitors, London. The facts of the

case, as submitted by the applicant's representatives, may be

summarised as follows.

The applicant has fragile X syndrome, a recognised condition

which gives rise to special educational needs. The local education

authority (LEA) made a statement of the applicant's special educational

needs. That statement read, under the heading "Appropriate Educational

Arrangements":

"St. Luke's School, Loughton which caters for pupils with

moderate learning difficulties and with which parents can liaise

on a regular basis.

(Mr. and Mrs. C. have expressed a preference for The Mead School,

Harlow, which also caters for pupils with moderate learning

difficulties, which has been agreed, but in accordance with the

Authority's home to school transport policy Mr. and Mrs. C. will

be responsible for all travelling expenses and arrangements)."

In 1989, the applicant became a registered pupil at the Mead

School, a local authority school some 14 miles from his home. The LEA

in fact provided transport at reduced cost, but not free. St. Luke's

School is another local authority school under 3 miles from the

applicant's home. The LEA would have provided free transport to

St. Luke's.

On 30 March 1990 and again on 28 February 1991 the LEA made known

its decision that it was under no obligation to provide free transport.

The applicant applied for judicial review of the decision. Mr. Justice

Jowitt found against the applicant on 12 March 1993. He considered

that there was no concurrent right to a school of the parents' choice

and to free transport to that school. He also held that the Education

Act 1980, which provides for parents' choice of schools, did not apply

where a child has special educational needs.

The applicant appealed to the Court of Appeal, which dismissed

the appeal on 24 November 1993. Lord Justice Staughton recalled that

LEAs may make such provision for transport to and from schools as they

think necessary, and such transport is to be provided free of charge

(Education Act 1944, Section 55). Further, an LEA must pay for

transport if its failure to do so would provide parents with a defence

under Section 39 (2) of the Education Act 1944. Section 39 requires

parents to ensure the attendance of children at schools where they are

registered, and Section 39 (2) provides, so far as relevant, for a

defence where the parents prove that the school is not within walking

distance (three miles for a child who has attained the age of eight)

unless the LEA has made suitable arrangements for transport or for

attendance at a nearer school.

The judge further recalled that the Education Act 1981 amended

the Education Act 1980 expressly to provide that the provisions of the

1980 Act relating to parental choice of school (in particular, Section

6) did not apply to a child with a statement of special educational

needs, such as the applicant. The judge referred to the applicant's

various arguments as to how a right to free transport to the Mead

School could be derived from the legislation, and did not accept any

of them.

The other two judges of the Court of Appeal gave separate

judgments agreeing with Lord Justice Staughton.

The House of Lords refused leave to appeal to it on 23 May 1994.

COMPLAINTS

The applicant alleges violations of Article 2 of Protocol No. 1

to the Convention, and of Articles 13 and 14 of the Convention.

In connection with Article 2 of Protocol No. 1, the applicant

contends that the provision of schooling and free transport, and of

statements of special educational needs, are functions which the state

assumes in relation to education. He points out that the Mead School

better reflected his parents' philosophy of education and teaching than

St. Luke's, and submits that the LEA named St. Luke's because it was

closer and therefore cheaper for the LEA. For the applicant, it is

implicit in domestic law that the parents' right of choice may be based

on personal convictions, and he submits that the need for this choice

is at least as great in the case of children with special educational

needs as in the case of other children. He considers that the

authority cannot respect his parents' right to ensure such education

and teaching if they permit him to go to the school they want him to

attend, but then fail to provide free transport.

To the extent that the applicant is excluded from the parental

choice provisions of the 1980 Act, the applicant considers that Article

14 of the Convention has been violated. He points out that if he did

not have special educational needs, his parents would have a statutory

right to choose his school, and that if there were not a statement of

his needs, the LEA would not have specified a school for him to attend.

The applicant also alleges a violation of Article 13 of the

Convention, because the construction of domestic law prevented the

domestic courts from giving effect to the rights set out in Article 2

of Protocol No. 1, and in Article 14.

THE LAW

1. The applicant alleges a violation of Article 2 of Protocol No. 1

(P1-2) to the Convention by virtue of the refusal of the local

education authority (LEA) to pay for the cost of his transport to the

school of his choice. 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 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 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 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 (Art. 64).

2. Any reservation made under this Article (Art. 64) 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 H.R., Belilos 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 H.R., Fischer 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 H.R., 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: on the

information submitted to the Commission he has attended a local

authority school throughout, and the applicant's parents are satisfied

with that school. Moreover, the applicant has been educated throughout

at a school which conformed with the applicant's parents' "religious

and philosophical convictions" - the Mead School.

The only question for the Commission is therefore whether Article

2 of Protocol No. 1 (P1-2) can be interpreted in the present case as

requiring the State to meet the cost of transport to the school of the

parents' choice where another school is available locally which would

provide equivalent educational facilities but is not the favoured

school of the parents.

The Commission first notes that although the applicant submits

that the local authority named St. Luke's School as appropriate because

it was closer and therefore cheaper, it is not contended that the

school would not have been adequate for the applicant's needs. The

Commission must therefore accept the statement of educational needs

when it states that St. Luke's would be an appropriate educational

establishment.

The Commission next recalls that it has held in the past that a

State has no positive obligation, under the second sentence of Article

2 of Protocol No. 1 (P1-2), to subsidise a particular form of education

in order to respect parents' religious and philosophical convictions,

but that it is sufficient to satisfy its obligations under Article 2

that the State respects parents' religious and philosophical

convictions within the existing and developing system of education: in

the case in question, Article 2 of Protocol No. 1 (P1-2) was held to

require the State neither "to make a grant to the school nor to provide

financial assistance to the pupils" (No. 10476/83, Dec. 11.12.85, D.R.

45, p. 143 at pp. 148, 149).

The present case is similar. No objections to St. Luke's School

have been made which could indicate that the applicant's attendance at

that school could conflict with the applicant's parents' religious or

philosophical convictions. The applicant has been attending a school

which the LEA and the parents regard as satisfactory.

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

cannot be used to derive a right to free transport to the school of

one's choice where an alternative is available which would involve free

transport and which has not been shown to conflict with the parents'

convictions.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 14 (Art. 14)

of the Convention. He considers that he has been discriminated against

because a statement of educational needs has been made in his case, and

if it had not, then he would have had the right of parental choice

under Section 6 of the Education Act 1980. Article 14 (Art. 14) of the

Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

Article 14 (Art. 14) prohibits treating differently, without any

objective and reasonable justification, persons in "relevantly" similar

situations (cf. Eur. Court H.R., Fredin judgment of 18 February 1991,

Series A no. 192, p. 19, para. 60).

The Commission notes that in the present case the domestic courts

approached the case on the hypothesis that the parental preference

provisions in Section 6 of the 1980 Act were applicable and considered

that, even in such a case, the LEA would not have been obliged to pay

the cost of transport to the school of the parents' choice if suitable

arrangements could have been made for attendance at a nearer school.

Accordingly, no relevant difference of treatment has been shown

to exist which could constitute discrimination against the applicant

in the enjoyment of his Convention rights.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant alleges a violation of Article 13

(Art. 13) of the Convention.

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a claim which can be regarded as "arguable"

(cf. Eur. Court H.R., Powell and Rayner judgment of 21 February 1990,

Series A no. 172, p. 14, para. 31, with further references). The

Commission has rejected the applicant's substantive claims as being

manifestly ill-founded. For similar reasons, it finds that they cannot

be regarded as "arguable".

It follows that this part of the 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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COHEN v. THE UNITED KINGDOM

COHEN v. THE UNITED KINGDOM

LEXI