AS TO THE ADMISSIBILITY OF

Application No. 14688/89

by André SIMPSON

against the United Kingdom

        The European Commission of Human Rights sitting in private on

4 December 1989, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     S. TRECHSEL

                     G. SPERDUTI

                     E. BUSUTTIL

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 31 January

1989 by André SIMPSON against the United Kingdom and registered on

24 February 1989 under file No. 14688/89;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1973 and resident

in Swansea.  He is represented before the Commission by Messrs.  A.E.

Smith and Son, Solicitors, Stroud.

A.      The particular facts of the case

        The facts of the present case, as submitted on behalf of the

applicant, may be summarised as follows:

        The applicant suffers from dyslexia.  This means that despite

his high intelligence he has cognitive difficulties because certain

parts of his brain do not function properly.  He has a significant

weakness in auditory short term memory, some weakness in visual short

term memory and poor fine motor manipulative skills.  These cognitive

difficulties cause serious retardation in his literary and

arithmetical attainment.  His personality is delicate.  Before being

placed in a special school he experienced behavioural problems because

his cognitive difficulties were not diagnosed or treated.

        In October 1985 the local education authority (LEA) concerned

made a "statement" of the applicant's special educational needs under

section 7 of the Education Act 1981.  They agreed to pay for the

applicant to attend a private fee-paying special school where he had

already been placed by his mother.  The applicant's family then moved

areas and the competent LEA was unwilling to continue the payment of

these fees.  They hurriedly attempted to issue a different statement

of needs (21 July 1986) but subsequently withdrew it (5 March 1987).

They prepared a further statement in the same terms as the previous

one.  This statement dated 29 April 1987 diagnosed the applicant's

special educational needs as follows:

        "Normal secondary curriculum, but offering daily individual

        help, using a multisensory approach, from a teacher

        experienced in teaching children with specific learning

        difficulties.

        Liaison between this teacher and other members of Staff

        who teach André in order to engender a continuity of

        approach.

        Access to appropriate teaching materials and computer

        programs designed for children with specific learning

        difficulties in reading and spelling."

        However, they proposed that the applicant be sent to a normal

comprehensive school of 1400 pupils, which had an Individual Learning

Department.

        As the applicant's mother disagreed with this statement, she

appealed to a local appeal committee.  It was submitted by independent

experts on the applicant's behalf that, inter alia, "such was his

delicate personality and due to the fact that he had previously

suffered behavioural and psychological problems, the placement in a

large school would mean that he would be in danger, could not cope, or

that he would be in significant danger of reverting and all progress

would be lost."  The head of the specialist department of the school

in question apparently admitted that it would be unable to cope with

the applicant.  The appeal was allowed on 24 September 1987 and the

LEA advised to reconsider the case.

        On 4 November 1987 the LEA considerably amplified their

statement, but still concluded that the applicant could be educated at

the local large comprehensive school.  The applicant's mother appealed

to the Secretary of State for Education under section 8 of the

Education Act 1981.  She submitted, inter alia, that as far as she was

aware the proposed school's remedial department is controlled by three

members of staff dealing with 150-300 pupils.  None of these teachers

is trained to deal specifically with dyslexic children.  The LEA has

one such part time teacher who spends three hours a week at the

school.  The applicant would not therefore have the daily training he

requires and receives in the special private school where he is happy

and is making good progress.  The Secretary of State, through the

Welsh Office, informed the applicant's representatives, by letter

dated 24 August 1988, that he considered that the applicant's needs

could be catered for at the comprehensive school.  He therefore upheld

the LEA's statement and proposal, subject to annual review.

        Since then this letter appears to have been communicated to

another local appeal committee in connection with another case without

the consent of the applicant's mother.  The applicant's solicitors

complained of a breach of confidentiality to the Welsh Office on

15 November 1988.

        For the time being it appears that the applicant's mother

struggles to pay the special school's fees herself.

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 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.

        By virtue of the Education Act 1981 (the 1981 Act) LEAs are

required to meet the special educational needs of handicapped children

in their area but, if possible, not to segregate them from other

children, provided that parents' wishes have been taken into account

and provided that this is compatible with the making of the special

educational provision required, the provision of efficient education

for the other children and the efficient use of resources (section 2

of the 1981 Act).  Section 5 of the 1981 Act enables the LEA to assess

the special educational needs of disabled children, in respect of

which assessment the parents may make representations and submit

written evidence.  If the LEA decides that a child's special

educational provision is called for, they must make a statement of the

child's special educational needs and make suitable arrangements to

meet them (section 7), even if it means placing the child in a school

outside the LEA's jurisdiction (section 6 of the Education

(Miscellaneous Provisions) Act 1953).  Special educational assessments

are subject to periodic review.  Parents may appeal against the LEA's

statement to an appeal committee which may confirm the special

educational provision contained in the statement in the light of the

circumstances of the case at the time of the hearing of the appeal, or

remit the case to the LEA for reconsideration in the light of the

committee's observations (section 8 (1), (2) and (4)).  Appeal

committees comprise three, five or seven members, drawn from the local

education authority and people who have experience in education and

are acquainted with educational conditions in the area (Schedule 2

Part I of the Education Act 1980).

        Following the confirmation or remit of a case, the parents may

finally appeal to the Secretary of State for Education who may

confirm, amend or annul the LEA's statement (section 8 (6) and (7) of

the 1981 Act).  These appeals are normally dealt with by Ministry of

Education civil servants, not the Minister himself.  There is no right

to an oral or adversary hearing with this form of appeal.

        Judicial review of the Secretary of State's decisions, or any

binding decision of an appeal committee, will lie if they are tainted

by irrationality, illegality or procedural impropriety.  An action for

a declaration or damages for breach of statutory duty may also be

available.

        In general LEA's must respect parental choice of schools

(section 6 of the Education Act 1980).  Section 7 (1) of the 1980 Act

provides for an appeal by parents against an LEA's decision concerning

school admissions or a school's refusal to accept a pupil.  This

appeal is to the appeal committee, but section 7 (5) of the 1980 Act

renders the appeal committee's decision fully binding on the LEA or

school concerned.  A similar binding appeal to an appeal committee is

available under section 26 of the Education (No. 2) Act 1986 on the

question of a child's expulsion from a school.

COMPLAINTS

        The applicant complains that the procedures determining his

special educational needs and provision were in breach of Article 6

para. 1 of the Convention, being a biased, unlawful determination of

his civil rights by partial bodies, who created unreasonable delays.

He alleges that the local education officers were biased throughout

his case;  that there are no speedy statutory time limits for issuing

a statement of special educational needs under section 7 of the

Education Act 1981; that appeal committees have no decision making

power if they agree with the appellant - they can only recommend

reconsideration of the case by the LEA ; and that there is no fair,

oral or public hearing before the Secretary of State for Education,

who himself cannot constitute an independent and impartial tribunal.

Part of the applicant's submission is that there are major financial

constraints placed on LEAs by central Government, resulting in

institutional bias against a full and fair consideration of a child's

special educational needs which might result in extra public expense.

        The applicant submits that his mother does not have sufficient

means to challenge the Secretary of State's decision by way of

judicial review; but she is not so poor as to be able to qualify for

legal aid to pursue such a challenge.

        The applicant next complains that he is denied the right to

education in accordance with his educational needs and that his mother

is entitled to have him educated in accordance with her firm

philosophical convictions on the subject.  He contends that the

Secretary of State's decision is in breach of Article 2 of Protocol

No. 1 to the Convention.

        The applicant also complains of discrimination in that the

Education Act 1980 allows appeals against decisions on school

admissions or expulsions to the same kind of appeal committee as in

the applicant's case, but in the former cases the appeal committee has

binding powers of decision.  In this respect he invokes Article 14 of

the Convention read in conjunction with Article 2 of Protocol No. 1.

        Finally, the applicant invokes Article 8 of the Convention

(family life) for, he submits, to place him in the comprehensive

school would lead to the deterioration in his mental condition and his

ability to be educated.

        In conclusion he submits that United Kingdom law is seriously

in breach of the Convention in relation to children who have special

educational needs.

THE LAW

1.      The applicant has first complained that the procedures

determining his special educational needs and provision were in breach

of Article 6 para. 1 (Art. 6-1) of the Convention, the relevant part

of which provides as follows:

        "In the determination of his civil rights and obligations

        ... everyone is entitled to a fair and public hearing

        within a reasonable time by an independent and impartial

        tribunal established by law ..."

        In analysing complaints of this kind the Convention organs

must deal with three questions:

-       whether the case gives rise to a "contestation" (dispute)

concerning a right;

-       if so, whether the right at issue is civil in character;

-       if so, whether there has been compliance with Article 6 para.

1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Benthem judgment of

23 October 1985, Series A no. 97).

        As to the first question the Commission considers that the

case does give rise to a "contestation" or dispute over a right.  The

various Education Acts have created obligations on local education

authorities to provide suitable education for all children in their

areas.  Parents dissatisfied with the education proposed for their

children may complain to the Secretary of State and, ultimately, they

may seek judicial review of the decisions of the local authority or

Minister.  Thereby the relevant legislation has created a right which

reflects the guarantees of Article 2 of Protocol No. 1 (P1-2) to the

Convention - a right for children not to be denied an education

appropriate to their needs and aptitudes.

        However, the Commission does not consider that this right

under English domestic law or under Article 2 of Protocol No. 1 (P1-2)

is of a civil nature for the purposes of Article 6 para. 1 (Art. 6-1)

of the Convention.  Although the notion of a civil right under

this provision is autonomous of any domestic law definitions, the

Commission considers that for the purposes of the domestic law in

question and the Convention, the right not to be denied elementary

education falls, in the circumstances of the present case, squarely

within the domain of public law, having no private law analogy and no

repercussions on private rights or obligations (cf. Eur. Court HR,

Deumeland judgment of 29 May 1986, Series A no. 100 pp. 24-25 paras.

71-74).  The  Commission concludes, therefore, that there is no civil

right at issue in the instant case and, accordingly, Article 6 para.

1 (Art. 6-1) of the  Convention is not applicable to the

administrative procedures before the domestic education authorities.

It follows that this aspect of the applicant's case must be rejected

as being incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

2.      The applicant also complains that he is denied the right to

education in accordance with his educational needs, contrary to

Article 2 of Protocol No. 1 (P1-2) to the Convention, the first

sentence of which provides that no one shall be denied the right to

education. The applicant has also raised a complaint on his mother's

behalf concerning an alleged failure by the LEA to respect her

philosophical convictions about his education, contrary to the right

ensured by the second sentence of Article 2 of Protocol No. 1 (P1-2).

However, according to Article 25 (Art. 25) of the Convention, the

Commission may only deal with complaints from the purported victim of

a breach of the Convention. In the circumstances of this case it is

not clear why the applicant's mother could not have lodged an

application on her own behalf.  Nor has the applicant shown that he is

an indirect victim of his mother's alleged grievance.  This latter

aspect of the complaint under Article 2 of Protocol No. 1 (P1-2) is

accordingly incompatible ratione personae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2).

        As regards the applicant's personal complaint of a denial of

his right to education under Article 2 of Protocol No. 1 (P1-2), the

Commission observes that Article 2 of Protocol No. 1 (P1-2) is not an

absolute right which requires Contracting Parties to subsidise private

education of a particular type or level.  In principle, it guarantees

access to public educational facilities which have been created at a

given time and the possibility of drawing benefit from the education

received.  This 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).

        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.  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 normal 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.  While these authorities

must place weight on parents' and pupils' views, it cannot be said

that the first sentence of Article 2 of Protocol No. 1 (P1-2) requires the

placing of a dyslexic child in a private specialised school, with the

fees paid by the State, when a place is available in an ordinary State

school which has special teaching facilities for disabled children.

        As regards the facts of the present case, the Commission notes

that the applicant's behavioural problems in a State school arose at a

time when his disabilities had not been diagnosed or treated.  His

dyslexia has now been identified and would be treated in the special

department of the comprehensive school proposed by the education

authorities.  It is not the Commission's task to assess the standard

of the special facilities provided by this State school.  It is clear,

however, that the applicant's progress at the school would be

monitored and his needs kept under review by the education

authorities.  In these circumstances, the Commission concludes that

the applicant is not 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

aspect of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

3.      The applicant also complains of discrimination contrary to

Article 14 of the Convention read in conjunction with Article 2 of

Protocol No. 1 (Art. 14+P1-2).  His complaint is based on the fact

that appeal committees do not have full and final decision making

powers in appeals against an LEA's statement of a disabled child's

special educational needs, whereas such committees can take binding

decisions on appeals against school admission or expulsion.

        However, the Commission finds that these procedures before the

appeal committee do not impinge on the substance of the right to

education ensured by the first sentence of Article 2 of Protocol No. 1

(P1-2). Whether the final administrative decision on the type of

school or the particular school to which a child should be sent is

taken by the Secretary of State for Education or an appeal committee,

the decisions of both of which being subject to judicial review before

the civil courts, is not a matter, which, in the Commission's view,

raises a significant difference in treatment.  In these circumstances

the Commission concludes that the applicant's claim of discrimination

contrary to Article 14 (Art. 14) of the Convention is unsubstantiated

and, therefore, manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

4.      Finally, the applicant has complained that the proposal to

place him in the State comprehensive school is in breach of his right

to respect for family life, ensured by Article 8 (Art. 8) of the

Convention, as  it would lead to the deterioration of his mental

condition and his ability to be educated.  However, the Commission

finds that this complaint is hypothetical at the present stage because

it is by no means certain that the applicant's attendance at the

school in question, which has certain special educational facilities,

will lead to the deterioration he fears.  In these circumstances the

Commission concludes that the complaint is unsubstantiated.

Accordingly this  aspect of the case is also manifestly ill-founded

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

Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)