The right to education: for ombudsman schemes

The right to education is enshrined in two UN treaties, the European Convention on Human Rights, and the Human Rights Act.

The HRA, ECHR and ICCPR include the right of parents to have their children educated according to their beliefs or convictions. This is a qualified right, and individuals can seek redress in the courts if they think the right has been interfered with.

The right to education under the ICESCR covers primary, secondary and higher education, as well as ‘fundamental education’ for people who have not completed their primary education.

The ICESCR is monitored by a committee of experts (CESCR) which does not accept complaints from individuals.

• education
• education authorities
• schools, colleges and universities

The ICESCR recognises the right to education for the ‘full development of the human personality and the sense of its dignity’ and to enable all to ‘participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups’.

As such, a school’s curriculum, ethos, policies and procedures should show regard to human rights concerns.

Access to education

Under the ICESCR, primary education is compulsory, free, and an absolute right.

There are also positive obligations on the state to make the whole education system accessible to all, including disabled children, and those with physical or mental impairments or language needs. See also protection from discrimination.

The UN Committee on the Rights of the Child recommended that the UK invest ‘considerable additional resources’ to ensure a ‘truly inclusive education’ for ‘all disadvantaged, marginalised and school-distant’ children (Concluding Observations: UK 2008).

But the CESCR was concerned that ‘significant disparities in terms of school performance and dropout rates continue to exist between pupils belonging to ethnic, religious or national minorities, in particular Roma/Gypsies, Irish Travellers, and other students, in spite of the efforts undertaken by the State’ (Concluding Observations: UK 2009).

A duty remains on the relevant authorities to identify and address reasons for this and other disparities, such as bullying and lack of culturally appropriate education.

Tuition fees

The ICESCR provides for the ‘progressive introduction’ of free secondary and higher education. The UK’s introduction and increase in university tuition fees has been a cause of concern for the CESCR, which called for a review of the policy. It has also encouraged equal treatment between EU and other overseas students for fees and financial assistance (Concluding Observations: UK 2009).

Parents’ beliefs

The right of parents to have their children educated according to their beliefs or convictions is closely linked to the right to freedom of thought, belief and religion.

The right is covered by the HRA and ECHR Protocol 1, Article 2 and ICCPR Article 18 (4). The UK, however, has a reservation in place for the ECHR Protocol 1, Article 2, which it maintains excuses it from the duty to provide separate religious schools on demand.

In the ICCPR, the right of the parents is balanced against a school’s obligation to teach about a religion or a belief; the two may conflict unless exemptions or alternatives are provided to accommodate the wishes of parents.

The courts have considered a number of cases involving religious education in schools. For example, Norway was found to have violated both the ECHR and ICCPR when it changed its curriculum and gave what was regarded as too much weight to Christianity (Folgerø and Others v Norway 2007 and UN Communication No. 1155/2003).

In Dojan and Others v Germany 2011, parents complained when the education authority refused their request for an exemption from mandatory sex education classes. The European Court of Human Rights found that the authority had a legitimate aim in enabling children to deal with society, integrating minorities and avoiding ‘parallel societies’. It ruled its actions had not overstepped the mark or been disproportionate.

Complaints about school allocation

Complaints about children not receiving their first choice of school, if a matter of preference and convenience, are unlikely to involve human rights. But if the impact affects the child’s access to education, you should consider human rights.

You should establish:

• whether there will be real difficulties getting to the allocated school
• whether the allocated school is able to meet the special, religious or language needs of the child
• whether there is evidence of discrimination in the admissions process

Complaints about children prevented from participating in the education system

There is a human rights obligation to provide inclusive education. A failure to enable a child’s participation in the education system by, for example, not carrying out a special educational needs assessment, in order to provide for special or additional resources, could be a human rights issue.

You should consider how promptly the education authority has made an assessment or special provisions. Delays or poor practices that have prevented a child from going to school for a significant time could show a lack of regard for a child’s right to education.

You should be clear about what an education authority or institution’s core obligations are in your report.

Complaints about educating children according to a parent’s beliefs

You may need to decide whether adequate exemptions or alternatives were given to parents, or whether the education authority’s interference in their right was justified for a legitimate aim and followed proportionately.

Complainants may feel that an education authority did not make appropriate adjustments to accommodate their religious beliefs. Following a policy too rigidly could lead to maladministration and injustice.

Authorities should show that they made every reasonable effort to accommodate a person’s religious convictions and beliefs, rather than claiming by default that they could not do so.

Complaints about tuition fees and financial assistance

Complaints about financial assistance for the payment of university fees may raise human rights issues, but are more likely to involve establishing whether eligibility criteria have been objectively applied in a non-discriminatory way.