A child with non-verbal autism was provided with no specialist assistance in at least her first two years at primary school, apart from what her parents paid for. The ECtHR in Strasbourg held there was a failure to make reasonable accommodation, in breach of Article 14 of the European Convention on Human Rights. The Italian authorities had prioritised support for a different condition which they considered more serious. However the ECtHR considered that in the circumstances – Italy’s inclusive schooling model and case law of the Italian courts – any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils. The authorities had not done enough to consider the claimant’s needs and possible solutions.
2020, European Court of Human Rights (ECtHR). Full decision https://hudoc.echr.coe.int/eng?i=001-204685
Facts
The claimant was a child with non-verbal autism [2-4]. At nursery school she received learning support for 24 hours a week from a support teacher with specialised assistance, in accordance with an Italian law [5-6].
However in her first year of primary school, 2010-2011, the child no longer got specialist assistance, and at the end of the school year was required to repeat her preparatory class [7]. Despite a request from her parents (under the same Italian law) there was no specialist assistance provided during the second year either, 2011-2012, until from January 2012 the parents paid for private specialist assistance [10-13]. Their claim to the Italian courts was brought at the end of that second year, but those courts dismissed the claim [14-16].
Held by ECtHR: There was a breach of Article 14 of the European Convention
ECtHR decision
Article 14 of the Convention included the prohibition of discrimination based on disability (eg Glor), but also the requirement for states to ensure “reasonable accommodation” that would help correct factual inequalities which are unjustified and therefore amount to discrimination [34].
There was evidently no dispute that Article 14 could apply as the case was within the ambit of a Convention right, namely Article 2 of Protocol 1 (education).
Margin of appreciation, and Italian system of inclusive education
The court reiterated that disability was a ground of discrimination for which the state’s margin of appreciation is substantially narrower, and it must have very weighty reasons for the restriction in question. [Comment: For how this is interpreted in the UK, see What is ‘discrimination’ under Article 14 European Convention?>Justification: ‘Margin of appreciation’ and need for “very weighty reasons”?] Moreover, any measure relating to children with disabilities must prioritise the best interests of the child. [54]
The Italian legal system secured the right of education for children with disabilities in the form of inclusive education in ordinary schools. There were arrangements for including in the relevant classes a “support” teacher, and where required calling in other professionals as “autonomy and communication assistants”, and educational assistants [55]. The ECtHR emphasised that by providing for the inclusion of children with disabilities in ordinary schooling, the legislature had effected a choice in the framework of its margin of appreciation [60, 64].
Reasonable accommodation
Article 14 should be interpreted in the light of the requirements set out particularly the CRPD. This provided that the “reasonable accommodation” which persons with disabilities are entitled to expect is “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. [62]
It was not the court’s task to define the “reasonable accommodation” to be implemented in the educational sphere, in response to the educational needs of persons with disabilities. The national authorities were much better placed to do so (eg Çam § 66). However, it was important for states to pay particular attention to their choices in this sphere in view of their impact on children with disabilities, whose high level of vulnerability could not be overlooked. [63]
Italian authorities had not done enough in this case
In view of the fact that the state had decided to provide inclusive education to children with disabilities [60, above], the court had to verify whether the authorities had valid reasons for depriving the claimant of access to specialist assistance [64]. The Italian government primarily argued that since the only available funds had been earmarked for persons with amyotrophic lateral sclerosis (ALS), the authorities did not have any financial resources readily available for school support. The government said ALS was more serious than the claimant’s condition. [65, 46]
The ECtHR said there could be no doubt that the claimant was unable to continue to attend primary school under conditions equivalent to those enjoyed by non-disabled pupils, and that this difference of treatment was due to her disability [66]. In the circumstances of this case, any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils:
68. The Court notes that the national authorities had at no stage considered the possibility that the lack of resources or the urgent need to prioritise the treatment of persons suffering from a serious disease could be offset not by tampering with the reasonable accommodation measures guaranteeing equal opportunities for children with disabilities, but by reducing the level of educational provision in a manner divided equitably between the non-disabled and the disabled pupils, even though the [Italian] Court of Cassation had already stressed that aspect in its judgments (see paragraph 19 above). The Court considers in this regard that, having regard, on the one hand, to the inclusive schooling model adopted in Italy, with a single stream for all pupils, and on the other, to the case-law of the Court of Cassation, any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils. [My emphasis]
The ECtHR accordingly found there was a breach of Article 14 [71]. The Italian government failed to demonstrate that the national authorities reacted with requisite diligence to ensure the claimant could enjoy her right to education on an equal footing with the other pupils, such as to strike a fair balance between the competing interests [72]. The authorities did not seek to determine her real needs or possible solutions to enable her to attend primary school under conditions as similar as possible to those enjoyed by other children, without imposing a disproportionate or undue burden on the authorities (though the court cited two decisions which went the other way, Sanlisoy and Stoian v Romania below) [70]. This discrimination was particularly serious as it “occurred in the framework of primary schooling, when the foundations were laid ich [sic] provides the bases for overall education and social integration and the first experiences of living together – and which is compulsory in most countries…” [71].
My comments
On reasonable accommodation under Article 14, see What is ‘discrimination’ under Article 14 European Convention?>Reasonable adjustments.
Comments: Stoian v Romania
The case above can be contrasted with Stoian v Romania (echr.coe.int), 2019, where a Committee of the ECtHR found that the authorities and domestic courts had sufficiently considered accessibility. There is a summary of the case at Disabled student. Suitable facilities and education for people with disabilities. Romania has taken adequate measures to allow access (echrcaselaw.com).
