AS TO THE ADMISSIBILITY OF

Application No. 15186/89

by Matthew SMITH

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 5 May 1989 by

Matthew SMITH against the United Kingdom and registered on 30 June

1989 under file No. 15186/89;

        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, Matthew Smith, is a British citizen, born on

29 December 1973 and resident in Redditch, Hereford and Worcester.  He

is represented before the Commission by his father and Mr. J. Friel,

barrister.

        The facts of the present case, as submitted by the applicant,

may be summarised as follows:

A.      The particular facts of the case

        The applicant suffers from severe dyslexia causing him serious

emotional and behavioural problems.  He started school at the age of

5, but was miserable and worked poorly.  Severe problems surfaced when

he was 6 1/2 and he was moved to a smaller State primary school.  His

problems were identified as dyslexia in 1983 by a child psychologist

specialised in dyslexia, when the applicant was 10 years old.  The

psychologist recommended that the applicant receive two separate

tutorials with him a week.  However the Hereford and Worcester local

education authority (LEA) did not immediately respond to a request

that this special provision be made for the applicant.  The

applicant's father arranged a place for the child in a special

private, fee-paying school for dyslexic children, beginning in

September 1984.  The LEA offered the applicant one hour a week special

education by which time the applicant was already having his two

sessions per week with the aforementioned expert and even these

sessions were proving insufficient.

        Initially the LEA refused to issue a statement of the

applicant's special educational needs.  Eventually, and allegedly

under the threat of High Court litigation for breach of statutory duty

and judicial review, they issued a provisional statement on 12 June

1986, pursuant to section 7 of the Education Act 1981.

        The final statement was made on 14 October 1986 as follows:

        "II - Special educational needs

        Matthew is of good average underlying ability.  However,

        his literacy skills are delayed, his reading speed being

        particularly poor.  Matthew's expressive language has

        clearly improved but still tends to deteriorate under

        pressure.  General numeracy is average, but arithmetical

        operations and number tables are weak.  Matthew's

        short-term memory is limited.

        III - Special educational provision

        Matthew requires a substantial degree of small group

        provision, within which techniques of over-learning

        and repetition should be used to combat his specific

        learning difficulties.  He has made progress with

        social skills and contact with larger groups will be

        necessary in order to build on this.

        IV - Appropriate school or other arrangements

        It is proposed that a place be made available at

        Stourport High School from September 1986.  Matthew

        would take part, on five full mornings per week, in

        very intensive work of the kind described in section

        III, in a small unit catering for children with

        specific learning difficulties such as his.  For the

        rest of the week he would take part in, and have the

        social stimulus of, the activities of the wider school,

        with the added advantage that staff there will know

        of his particular difficulties and be sympathetic to

        them."

        The applicant's parents successfully appealed against this

statement to an appeal committee.  On 7 April 1987 the appeal

committee unanimously decided that the school proposed by the LEA was

too large (1100 pupils) for the applicant's present needs and it

remitted the case to the LEA to reconsider the applicant's case and,

in particular, to obtain expert advice on the emotional aspects of the

applicant's problems.  The applicant's parents obtained expert child

psychiatric opinions which found no evidence of mental illness, but

recommended that he remain in the special school where his parents had

placed him.  This was confirmed by the child psychologist acting for

the LEA in July 1987.  In the meantime the applicant's parents had

commenced further High Court proceedings against the LEA for breach of

statutory duty in an attempt to speed up the procedure.  The LEA

decided on 11 November 1987 to maintain its proposal concerning the

appropriate school, i.e. the Stourpourt High School with its special

learning unit.  As was revealed in the High Court preliminary

litigation, this decision was based on the fact that no evidence of

psychiatric illness had been found and that in view of the great

improvement in the applicant's abilities over the years it was felt

that he needed to be placed into a larger unit in preparation for

adult life.  The applicant's needs had also to be seen in the light of

the interests of the community as a whole in using available resources

efficiently, and the LEA considered it had a duty to its rate-payers

to reduce educational spending on private school fees, which spending

was already high (£ 1.5 m. in 1987), when appropriate education was

available in an ordinary State school.

        The applicant's parents appealed against the LEA's decision

to the Secretary of State for Education under Section 8 (6) of the

Education Act 1988.  The appeal was rejected by letter of 8 December

1988 to the applicant's solicitors in the following terms:

        "In considering Matthew's case, the Secretary of State

        has had to establish whether the provision specified

        in the statement would meet Matthew's special educational

        needs.  In reaching his decision he has taken account of

        the advice, representations and evidence available to the

        Hereford and Worcester Authority and the local appeal

        committee.  In particular the Secretary of State has

        given careful consideration to all the professional

        assessments of Matthew provided by the Authority and the

        independent reports submitted on his behalf and to the

        representations submitted by yourselves.

        After examining the various reports and submissions

        placed before him, the Secretary of State is satisfied

        that Matthew's special educational needs can be met by

        the special education provision specified in part III

        of his statement and that the provision can be made

        available at Stourport High School.

        Where a local education authority are willing to make a

        suitable place available for a child in one of their

        own schools, the Secretary of State does not consider

        it unreasonable for that authority to be unwilling to

        pay the fees incurred by that child's attendance at

        an independent school, subject to proper consideration

        having been given to any special circumstances in individual

        cases.  On the evidence before him, the Secretary of State

        has reached the opinion that Matthew does not now suffer

        from any psychiatric, emotional or behavioural disorder

        such as might justify placement outside the maintained

        sector.  Whilst the Secretary of State appreciates that if

        Matthew were to transfer back to the maintained sector he

        might have some initial difficulties in adjusting to the

        change of environment, the Secretary of State considers that

        any such difficulties could be overcome.

        Accordingly, the Secretary of State, in the exercise of his

        power under section 8(7) of the Education Act 1981 has

        confirmed the special educational provision as set out in

        part III of the statement made by the Hereford and Worcester

        Authority in respect of Matthew dated 14 October 1986."

        This appeal was final.  The applicant's parents could not seek

judicial review of the Secretary of State's decision because they do

not qualify for legal aid and could not afford to litigate in person

as well as pay for the applicant's school fees.

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, which they allegedly deliberately failed to understand; 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; that there is no reason why these committees could

not have powers in compliance with Article 6; that there is no fair,

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

who himself, or rather whose civil servants, cannot constitute an

independent and impartial tribunal; that he allegedly cannot decide

past issues even if an LEA has acted dilatorily or unlawfully and he

also takes secret expert advice which he does not show to the parties

(cf. Eur. Court H.R., Benthem judgment of 23 October 1985, Series A

no. 97).

        The applicant submits that his parents do not have sufficient

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

judicial review; but they are 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 a

proper education in accordance with his educational needs.  He alleges

that the education proposed by the LEA would be positively harmful to

him and that his parents are entitled to have him educated in

accordance with their firm philosophical convictions on the subject.

Expert evidence and the appeal committee decision support these

claims.  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 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.  A similar binding appeal is available under section 26

of the Education (No. 2) Act 1986 on the question of a child's

expulsion from school.  In this respect he invokes Article 14 of the

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

Eur.  Court H.R., Belgian Linguistic judgment of 9 February 1967,

Series A no. 5, and Marckx judgment of 13 June 1979, Series A no. 31).

        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 parents' behalf

concerning an alleged failure by the LEA to respect their

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 parents could not have lodged an

application on their own behalf as well.  Nor has the applicant shown

that he is an indirect victim of his parents' 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 emotional and 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 treated and would

continue to be treated in the specialist department of the 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 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)