Communication CRPD 82/2020: Non-violation

The authors of the communication are Günter Handke and Kirsten Wilke, who are acting on behalf of their son, Christoph Jo Handke, a national of Germany born on 16 May 2001. The authors claim that he is the victim of violations by the State Party of articles 5 (3), 7 (1), 9 and 24 (1) and (2) of the Convention. The Optional Protocol entered into force for the State Party on 26 March 2009. The authors are represented by counsel.

On 17 February 2023, the Committee, acting through its Special Rapporteur on new communications and interim measures, rejected the State Party’s request that it examine the admissibility separately from the merits.

The authors’ son, Mr. Handke, has tuberous sclerosis, a genetic disease characterized by epileptic seizures and cognitive impairments. His mental development was impaired in infancy as a result of frequent epileptic seizures. In 2008, he started at an inclusive primary school, attended both by pupils with disabilities and by other pupils. The authors note that this inclusive education was highly beneficial for Mr. Handke, allowing him to achieve excellent development in accordance with his abilities, to make significant progress in practical life and to make friends.

The law of Saxony-Anhalt State, where the authors reside, provides for four years of attendance at primary school. The authors wanted Mr. Handke to attend an inclusive secondary school, which would offer joint, target-differentiated education for children with disabilities and other children. On 20 October 2011, the authors submitted an application to the State Education Office of Saxony-Anhalt requesting information as to which schools in their district could provide such an education. The State Education Office scheduled a meeting to discuss the question, but later adjourned it. On 12 January 2012, the authors filled in a school career declaration form, stating that they wished their son to attend a school offering joint, inclusive education and that they would be willing to consider both public and private schools. As they received no proposals from the authorities, they started to make their own enquiries. Two public schools informed them that they would be unable to offer inclusive schooling. A third public school, Alexander-von-Humboldt school, stated during a discussion held on 1 February 2012 that it did not have the necessary personnel or material capacity for schooling children with intellectual disabilities and that Mr. Handke’s attendance was strongly discouraged. The only remaining public school in the district was Käthe-Kruse school, exclusively for children with intellectual disabilities.

On 6 March 2012, the authors contacted Saale school, a private school located in Halle, approximately 60 km from their home. This school could not offer admission for the 2012/13 school year, and it was the only inclusive school within reachable distance that would accept Mr. Handke for the 2013/14 school year. The authors applied for their son to remain in primary school for an additional, fifth year, in order to avoid his referral to a school for children with intellectual disabilities. On 15 February 2013, the authors filled in a school career declaration form, requesting his admission to a secondary school with inclusive education, for children with disabilities and other children. They enclosed a letter specifying why attendance at an inclusive school was necessary for their son’s intellectual development and affirming that a public school was their preferred option. They pointed out that they had been looking for such a school since October 2011. However, the only inclusive school within reachable distance being Saale school, a private school, they requested that their son be assigned to it.

On 2 May 2013, the State Education Office invited the authors to a meeting of an expert commission. The commission acknowledged that Mr. Handke’s inclusive education at primary school had had a positive impact on his development and confirmed that schools in the district were not suitable for further inclusive schooling. Both the representative of the state’s secondary schools and the representative of the Education Office strongly advised against Mr. Handke’s attendance at Humboldt school, because there was no prospect of inclusive education there owing to class sizes and available resources. The authors were informed that he could be assigned to public schools only, from which the authors would choose their preferred option.³ Through a school allocation order, dated 16 May 2013, Mr. Handke was officially assigned to Humboldt school, a mainstream school, and Käthe-Kruse school, exclusively for children with intellectual disabilities. Upon the authors’ request, the Education Office agreed to include an additional line in the allocation order stating that it would not object to Mr. Handke’s enrolment at Saale school. The allocation order also contained a recommendation by the Education Office that Mr. Handke be supported by an integration assistant to ensure his successful schooling in joint lessons, and noted that an application for such support could be submitted to the Social Welfare Office of Saxony-Anhalt.

3. The authors provided a personal record of the meeting, taken from memory and signed by them and by the Head of the Montessori school in Naumburg, who had also attended the meeting. ↩

The authors enrolled Mr. Handke in Saale school for the 2013/14 school year, as they were convinced that it was the only school offering inclusive education. According to the Saxony-Anhalt State School Act (sect. 71 (2)), the authorities must ensure transport for a school-age child to the nearest school of the type chosen by the pupil, the “nearest school” being understood to be the school to which the pupil is assigned in the official allocation order. Because of his disability, Mr. Handke could not use public transport to travel to Saale school, 60 km away from his home. He therefore needed a private driver or a cab to go to school, resulting in monthly travel expenses of 2,000 euros. He also needed an integration assistant to support him during the journey. In total, the authors had to pay more than 30,000 euros yearly in order to offer him inclusive education.

On 22 June 2013, the authors applied to the Burgenlandkreis District authorities for the reimbursement of his travel expenses to Saale school. On 16 August 2013, their application was rejected by the district authorities on the basis that he had not been officially assigned to Saale school by the State Education Office. For the same reason, the Social Welfare Office of Saxony-Anhalt refused to bear the costs of his travel support by an integration assistant, which amounted to 800 euros per month.

The authors challenged the school allocation order of 16 May 2013 before Halle Administrative Court, alleging a violation of their son’s right to inclusive education, which could not be provided at any public school, and requesting his reassignment to Saale school, given the decisive importance of the allocation order for all subsequent decisions concerning travel and assistance expenses. They were not assisted by a lawyer.

In a judgment of 28 March 2014, Halle Administrative Court dismissed the authors’ complaint as inadmissible, arguing that the authors lacked the right of action as they could not claim to be entitled to allocation by the State Education Office to Saale school, meaning that the Education Office’s refusal to make such an order could not be held to infringe or violate any of Mr. Handke’s rights. The right of action required that the plaintiffs’ claim appeared at least to be possible. The court considered that it was impossible from the outset that the authors could have a right to allocation to Saale school, and found that there was therefore no possible legal basis for their claims. The court clarified that it would have been conceivable to officially order attendance at a public school outside the responsible school district. However, the education law did not allow the Education Office to allocate private schools in school allocation orders.

On 3 June 2014, the authors filed an appeal with Saxony-Anhalt Higher Administrative Court, this time with legal assistance. They pointed out that the first-instance court had erroneously assumed that they had been primarily concerned with their son’s assignment to Saale school rather than with his assignment to a school suitable for inclusive education. Saale school was merely the only suitable inclusive school within an accessible distance. The authors had simply considered it more practical to bring a specific action for assignment to Saale school than a general action for inclusive education. The authors stated that if the court of first instance had considered that point to have a decisive detrimental effect on the admissibility of the action, it should have pointed it out to them within its legal duty of care. Instead, that court had imposed excessive requirements for the right to bring an action. The authors set out that the right to bring an action arose from an interpretation of the Saxony-Anhalt State School Act in the light of the prohibition of discrimination of persons with disabilities under article 3 (3) of the Basic Law.

On 17 November 2015, Saxony-Anhalt Higher Administrative Court rejected the application for leave to appeal. It stated that Mr. Handke’s right to inclusive education had not been infringed, as the transportation costs were merely an indirect legal consequence of the authors’ decision, and that there was no discernible reason for their son’s assignment to a private school given that he had already been admitted to it by means of a contract with the school. With regard to the misjudged claim, the Higher Administrative Court stated that the Administrative Court was not obliged to provide legal advice to claimants. It stated that private school autonomy outweighed the request for reimbursement of pupil costs. It pointed out that the prohibition of discrimination under article 3 (3) of the Basic Law had not been violated because Mr. Handke had been provided with inclusive education at the private school of his choice.

The authors submitted a complaint against this decision. They complained that both courts had completely disregarded the fact that his attendance at the private school was a consequence of the refusal by the State Education Office to offer him inclusive education at a public school. In a decision of 9 December 2015, Saxony-Anhalt Higher Administrative Court dismissed the complaint.

On 22 December 2015, the authors lodged a complaint with the Federal Constitutional Court, alleging a violation of the prohibition of discrimination under article 3 (3) of the Basic Law, in conjunction with articles 7, 9 and 24 (2) of the Convention. In a decision of 22 June 2017, the Federal Constitutional Court refused to consider their complaint, without providing any reasons.

The authors also initiated parallel proceedings before Halle Administrative Court and Halle Social Court to request the reimbursement of his travel costs and travel assistance. Both proceedings were suspended pending the final decisions of Halle Administrative Court, Saxony-Anhalt Higher Administrative Court and the Federal Constitutional Court. Despite those final decisions having been adopted, in German procedural law, a suspended procedure remains suspended until it is reopened by one of the parties. The authors have chosen not to reopen the suspended proceedings until the Committee adopts a decision on their communication. They claim that reopening the proceedings now would have no prospect of success following the dismissal of their complaints by Saxony-Anhalt Higher Administrative Court and the Federal Constitutional Court.

The authors allege a violation of their son’s right to inclusive education without discrimination under article 24, read in conjunction with article 5 (3), of the Convention. They claim that the State Party failed to grant their son the possibility of obtaining inclusive education free of charge and that the State Education Office’s school allocation order of 16 May 2013 legally excluded him from the general education system by assigning him to a school that was unsuitable given his disability. The allocation to a “special” school, for children with intellectual disabilities, in addition to his allocation to the unsuitable public school, meant that his entire social and professional life would have been directed towards a parallel system for persons with intellectual disabilities. This allocation order induced the refusal by other authorities to reimburse his transportation costs. They claim that the conduct of the public authorities is aimed at segregating and isolating pupils with disabilities. They emphasize that their child can only attend a mainstream, integrative secondary school rather than being permanently placed in the system of “special” schools, because of the extremely costly and time- and energy-consuming commitment required for the latter.

The authors argue that national courts misinterpreted national law by considering that there was no possibility of his being allocated to a private school. They also claim that the courts’ reasoning that private school autonomy outweighs his right to integrative schooling free of charge is contrary to the Convention, particularly when the private system is the only system of school education that can actually be used. The authors label as absurd the statement by Halle Administrative Court that it was legally impossible for them to claim official allocation to a private inclusive school because they had already concluded a contract with this school.

Referring to the Committee’s general comment No. 4 (2016), the authors allege a violation of their son’s right to reasonable accommodation. Their son has a right to reasonable accommodation, meaning individually tailored support measures to enable his school attendance. They state that the State Education Office acted contradictorily, acknowledging that the support of an integration assistant was recommended for him to be able to pursue schooling in joint lessons, yet ordering his school allocation in such a way that joint lessons would not be provided and the costs of integration assistance could not be reimbursed. They submit that their son has suffered triple discrimination. First, his journey to school is considerably longer and more expensive than that of other pupils, because there is no integrative school in the immediate vicinity of his home. Second, his travel costs are not borne by the public authorities, unlike the travel costs of other schoolchildren. Third, the costs of his travel assistance, which he needs because of the particularly long journey to school, are not reimbursed.

The authors submit that the Saxony-Anhalt State School Act is not sufficiently adapted to the requirement of promoting equality under article 5 (3) of the Convention. According to this law, in exceptional cases, attendance at a school in another district may be ordered. However, according to the interpretation by the national authorities and courts, only public schools are concerned.

The authors submit that the aforementioned violations are aggravated by the fact that their son was a minor at the time and subject to particular protection under article 7 (1) of the Convention. They claim that according to his best interests as a child, inclusive education must be preferred to isolated instruction at a “special” school, exclusively for persons with intellectual disabilities.

Lastly, the authors submit that according to article 9 of the Convention and to the Committee’s general comment No. 2 (2014), the State Party is required to establish educational institutions and programmes without discrimination. The entire educational system must therefore be universally accessible, including curricula, teaching materials, teaching methods, assessment procedures and language and support services. The State Party is required to promote inclusion and equal treatment of pupils with disabilities, including with regard to transportation, and make education at all levels affordable for persons with disabilities. Reasonable accommodation must not create additional costs for pupils with disabilities. According to the authors, the criteria of equal accessibility are not fulfilled in the case of their son because no public educational institution was willing to provide him with joint, target-differentiated education with curricula and teaching materials adapted to his disability, and because his transportation and travel support expenses place a considerable burden on them.

The authors request that the Committee draw the attention of the State Party to the violations of the Convention and recommend that appropriate steps be taken to remedy his situation. A retroactive amendment of the school allocation order and of decisions related to reimbursement of transportation and assistance costs may be considered. They also request reimbursement of legal costs related to the preparation of the present communication and to domestic procedures.

In its observations of 22 March 2021, the State Party notes that on 22 June 2013, the authors applied for the continuation of school transport for their son after the change of school to Saale school for the 2013/14 school year. Burgenlandkreis District, as provider of school transport, is obliged to provide transport to or reimburse the necessary expenses of travelling to the nearest public school of the chosen school type only, pursuant to section 71 (2) of the Saxony-Anhalt State School Act in conjunction with Burgenlandkreis District’s school transport statutes. The “nearest school” is counted as the nearest school within the school district, according to the school development plan. According to section 71 (2) of the Act, the nearest school may also be any school attended by order of the State Education Office of Saxony-Anhalt. In the case of Mr. Handke, no such order was issued regarding Saale school. Instead, on 16 May 2013, the Education Office found that both Humboldt school and Käthe-Kruse school, in Naumburg, were suitable schools for him within his school district. The State Party argues that the Education Office could not have decided otherwise. Assignment to Saale school would have been possible only if this specific school, which is a private school, was the only school where Mr. Handke could have been educated in an inclusive manner. This was not the case, because Humboldt school was able to provide inclusive education.

The State Party submits that the authors have exhausted domestic remedies only with respect to one specific aspect of the dispute, namely their request that Mr. Handke be assigned to Saale school by the State Education Office. In this respect, no further remedies were available to them after Halle Administrative Court, Saxony-Anhalt Higher Administrative Court and the Federal Constitutional Court had dealt with the matter.

It argues that from a legal point of view, however, the assignment order constitutes only a side issue of the dispute. It emphasizes that the State Party’s authorities did not prevent Mr. Handke from attending the school of his choice. On the contrary, in its notice of 16 May 2013, the State Education Office explicitly acknowledged the authors’ wish for him to attend Saale school. The authors’ challenge to the Education Office’s omission to formally assign him to Saale school was therefore not aimed at changing Mr. Handke’s schooling situation. Mr. Handke enjoyed inclusive education at a school of his choice at all times. The State Party argues that the aim of the proceedings with regard to the assignment was rather to establish the preconditions for reimbursement of the extra costs – travelling expenses in particular – caused by his attendance at Saale school.

While it is true that in case of a formal assignment to Saale school, Mr. Handke undoubtedly would have been entitled to reimbursement, the question of reimbursement nevertheless was not the subject of these proceedings. This question is still open, and is to be resolved in the suspended proceedings before Halle Administrative Court and Halle Social Court. No rule of national procedural law prevents the authors from reopening the suspended proceedings. The decisions of both the administrative and the social courts would at that point, in case of need, be subject to further judicial review. The State Party therefore notes that the courts are, in principle, still free to conclude that the authors, owing to their son’s specific situation, are entitled to reimbursement. It would be up to the courts to examine whether Mr. Handke’s schooling at Humboldt school, as a question of fact, would have been in line with the requirements of the Convention. Should this question be answered in the negative, they could consider whether a claim for reimbursement would be justified in order to comply with the Convention.

In its judgment of 28 March 2014, Halle Administrative Court explicitly left open the question as to whether inclusive education would have been feasible at Humboldt school, since this aspect was irrelevant to the question of formal assignment to Saale school. Accordingly, this aspect could be reconsidered by the courts in the proceedings that are currently suspended. The State Party argues that the authors have not elaborated on the prospect of success of reopening those proceedings, as confirmed by their statement that they decided not to reopen the suspended domestic proceedings because they first wished to wait for a decision by the Committee. The State Party argues that this approach is obviously incompatible with article 2 (d) of the Optional Protocol.

The State Party further submits that the communication should be found inadmissible as manifestly ill-founded under article 2 (e) of the Optional Protocol. It argues that the authors’ claims are based on the assumption that the State Party’s authorities denied their son the possibility of inclusive education in the community in which he lives and that it was only as a result of their financial capabilities and commitment that he nevertheless could attend an inclusive school. It argues that this assumption is incorrect, as he could have attended Humboldt school, in Naumburg, which offers inclusive education. The State Party claims that the authors have not submitted conclusive evidence that Humboldt school was not inclusive. The authors refer to the minutes of a meeting held on 2 May 2013, which reflect only the memory of the authors and were signed only by them and the Head of the Montessori school in Naumburg. Even this document, however, confirms that the State Education Office would have assigned Mr. Handke to Humboldt school if that had been the authors’ wish. Furthermore, in a letter dated 8 July 2013, the Education Office informed Burgenlandkreis District that all the material and personnel required were available, or would have been made available in case of need, at both public schools in Naumburg, in a similar way to Saale school. This letter was made known to the authors. Mr. Handke would have been among the first pupils with intellectual disabilities to attend Humboldt school. The school would have received appropriate personnel and professional support. In addition, he would have had an assistant to accompany him in everyday school life. In the 2013/14 and 2015/16 school years, two trained “special education” teachers and two additional teachers with further training in inclusive education were employed at Humboldt school. Approximately 6 per cent of the pupils in the joint classes had “special needs”. Accordingly, the necessary prerequisites for joint schooling were met. In the 2013/14 and 2014/15 school years, there was one child with intellectual disabilities at the school.

As a consequence, a violation of article 24 of the Convention has not been demonstrated by the authors. Mr. Handke enjoyed inclusive education at all times, as he was able to enrol at Saale school, in line with the authors’ wishes. Inclusive education would also have been available in his community. For the same reasons, the alleged violations of articles 5, 7 and 9 of the Convention are unfounded. Mr. Handke was offered inclusive education in Naumburg. The extra costs incurred were therefore not necessary to achieve the aim of inclusive education as provided for by the Convention.

In their comments of 14 April 2022, the authors reiterate their claim that no schools in Naumburg could offer inclusive education to their son, and maintain their claim that Humboldt school did not offer inclusive education. They claim that there is no concrete evidence for the assertion by the State Education Office that the conditions necessary for inclusive education were available or could be created. The fact that Humboldt school did not appear to be a suitable institution for inclusive education emerges from the discussion held on 2 May 2013 at the meeting of the expert commission. However, the State Party describes the claims in the communication as unsubstantiated because the document presented was based on the recollections of the authors and a representative of the Montessori school only. In that regard, the authors refer to a second set of minutes of that meeting, which was included in Mr. Handke’s file at Saale school and which asserted that admission to a “specialized” school was recommended as a better alternative. As communicated in the conversation, there was the possibility of two hours of support for common instruction at the school, which is in no way sufficient for inclusive education.

The authors maintain that generally in the State Party, the insufficient staffing and material resources for inclusive education at general schools leads to students with impairments receiving less support than is possible and necessary and that inclusive education is then perceived as unsatisfactory in secondary schools. Inclusive education requires more in terms of experience and human and material resources than just a few “common lessons” accompanied by “special needs” teachers in between. In the State Party’s system of public schools, children are carefully segregated between grammar schools, comprehensive schools, lower secondary schools and “special” schools, according to academic performance and, where appropriate, the nature of their impairment. The authors did not want to choose a school that the State Education Office merely claimed could educate their son inclusively without being able to demonstrate relevant experience and rely on corresponding concepts and resources.

The authors refer to the substantive experience of Saale school in inclusive education since 2007, including the recognition received and the public information provided by Saale school about inclusive education on their website, while none is provided on the website of Humboldt school. They maintain that only the possibility of being able to attend the independent Saale school ensured their son the possibility of a secondary school career. The fact that according to the State Party, over two academic years there was only one student with intellectual disabilities enrolled in Humboldt school and none in 2015/16 underlines the statement by the State Education Office during the discussion of the expert commission that Humboldt school was probably unsuitable for students with cognitive impairments. For this reason, the authors did not want their son to be the first and only child with cognitive impairments at Humboldt school to try out whether inclusion could work, against the views of the school authorities.

The authors argue that they have exhausted all available domestic remedies. They refute the State Party’s claim that the domestic proceedings relating to their son’s entitlement to be assigned to Saale school was secondary among their claims. They note that a formal order from the State Education Office assigning him to Saale school is a mandatory prerequisite for the reimbursement of travel costs. They further note that this issue has been conclusively ruled upon by the courts, which found that the Education Office was not required to assign him to Saale school. They argue that, contrary to the argument by the State Party, the question as to whether Humboldt school would have fulfilled the requirements of integrated schooling is not pending examination, given the already existing final decision regarding their son’s assignment to Saale school. They further argue that it would be unreasonable to require them to further pursue domestic remedies in the State Party, given that they have already pursued the initial proceedings to the Federal Constitutional Court, especially taking into account the time, effort and expense that would be required.

In its observations of 13 June 2023, the State Party maintains its request that the Committee reject the authors’ communication as inadmissible or, in the alternative, find that it is without merit.

On admissibility with regard to victim status, the State Party considers that while, in the present case, the authors do not explicitly claim a violation of a right under the Convention on their own behalf, it cannot be ignored that the grievance that sparked the dispute in the beginning was that the authors had to bear the burden of paying the costs of transportation and travel assistance. The communication expressly states that it was the parents’ income, not their son’s, on which inclusive education supposedly depended. The aim of the proceedings before the national courts was thus to achieve the reimbursement of these costs. It was not their aim to enforce inclusive education on behalf of their son. This right was, undisputedly, never denied. For these reasons, the State Party expresses its doubts as to whether the present communication, in substance, serves the implementation of their son’s rights under the Convention, and whether it should not rather be considered as an attempt to compensate the authors for their expenses. The authors, however, do not qualify as persons with disabilities in the sense of article 1 of the Convention and can therefore not claim to have the status of victims.

The State Party claims that it has not violated article 24, read in conjunction with article 5 (3), of the Convention, as Mr. Handke was not excluded from the general education system. The authors’ reasoning that the allocation order – according to which, inter alia, Humboldt school was the public school responsible for Mr. Handke – excluded him from the general education system amounts to a contradiction. Humboldt school is, undisputedly, a mainstream secondary school, which Mr. Handke could have attended. This is true both in terms of the law and in terms of fact. As explicitly provided for in section 1 (3a) of the Saxony-Anhalt School Act, students with special educational needs and other students are educated together if the parents of the former so request, if the personnel, material and organizational resources necessary are available or can be created in accordance with budgets and if individual support needs can be met through joint schooling and education, and parents receive comprehensive advice to help them decide on their children’s further educational path.

In the present case, the State Education Office, in full accordance with the Saxony-Anhalt School Act, acknowledged that Humboldt school was the competent public school, and that Mr. Handke had the right to attend this school. In particular, the Education Office affirmed that the necessary conditions for inclusive education were available at Humboldt school and could be improved to be similar to Saale school. The State Party refers to the letter, dated 8 July 2013, in which the Education Office stated that, in its estimation, the further requirements of section 1 (3a) of the Saxony-Anhalt School Act were fulfilled in case of the authors’ son, meaning the personnel, material and organizational resources necessary were available and could be improved in accordance with budgets and Mr. Handke’s individual support needs could be met.

The authors decided not to exercise their son’s right to inclusive education at Humboldt school. A decision not to exercise a right must not, however, be confused with exclusion from a right. Such exclusion never took place. At no time did the State Education Office deny Mr. Handke’s right to inclusive education.

Neither did the State Party violate Mr. Handke’s right of equal access to secondary education free of charge on an equal basis with others in the community in which he lives. The authors’ assertion that no single public school in the responsible school district or otherwise within an accessible distance was able to fulfil the aforementioned rights is contested by the State Party. Mr. Handke was also not denied education free of charge, since his attendance at Humboldt school in Naumburg would have been free of charge. Possible travel costs to Humboldt school as the nearest school could have been reimbursed in accordance with the laws of Saxony-Anhalt State. Furthermore, the State Party asserts that the authors cannot argue that their son had an individual right under the Convention to access free of charge to Saale school because it may, given its longer experience with joint schooling, have been better prepared to offer inclusive education. The Convention provides not for a right of access to a specific school that parents consider the best for their child, but for a right of access to inclusive, quality and free education. This right would have been met by Humboldt school. The authors cannot claim that the rejection of their applications for reimbursement of the costs of transportation and travel assistance violates the right of access free of charge to education. These costs cannot be attributed to the State Party. They exclusively resulted from the authors’ individual decision to enrol their son at Saale school and thus not to have him exercise his right to free and inclusive education at Humboldt school. The State Party submits that the minutes of the meeting of the expert commission held on 2 May 2013 cannot be considered as conclusive evidence of what exactly was said during the meeting, as they were drafted according to the memory of the parents and the Head of the Montessori school in Naumburg and were not signed by the other persons present at the meeting. Even if the minutes were considered reliable, they would reveal that the meeting took place at a time when the authors’ decision to enrol their son at Saale school was already final. While the State Education Office identified some obstacles regarding education at Humboldt school, it also identified the options to overcome them. As to the second set of minutes, the State Party notes that the document is not signed by the persons present and that the possibility cannot be excluded that it constituted only a draft that was not yet finally consolidated.

The State Party submits that the authors’ statement that they were reluctant to enrol Mr. Handke in Humboldt school as the first and only child with cognitive impairments is irrelevant from a legal point of view. Inclusive education cannot become a practised standard at all general schools if schools without extensive experience thereof are avoided, for the most part, by students with disabilities. Any general school without such experience must, at a certain point in time, be attended by the “first” student with disabilities. Otherwise, inclusive education is doomed to remain an exception. While the authors’ decision not to make use of this opportunity must be respected, there is no legal reason under the Convention or national law to honour it through entitlement to compensation for the accompanying additional costs. These costs are caused not by a failure by the State Party to implement inclusive education, but, solely, by the individual decision of the authors.

The State Party submits that Mr. Handke has not been discriminated against on the basis of his disability. On the contrary, he has been treated on an equal basis with others, namely with students who, for whatever reason, attend schools that are not the nearest to where they live and whose transportation costs are therefore not borne by the public either. To reimburse the authors the costs of transportation to Saale school would thus be equivalent to granting Mr. Handke more rights than the general population.

The State Party submits that it has not violated article 5 (3) of the Convention. Mr. Handke’s right to reasonable accommodation would have applied to his attendance at Humboldt school, as it provided inclusive education. The opportunity was offered in Mr. Handke’s case, but the authors decided otherwise. Accordingly, there is no need to decide whether the national courts were under an obligation to apply the Saxony-Anhalt School Act in such a way as to determine that Mr. Handke had a right under national law to be officially assigned to Saale school. Article 5 (3) of the Convention does not require such an interpretation, since allocation to Saale school was not a precondition for the exercise of the Mr. Handke’s right to inclusive education.

The State Party also submits that there has been no violation of article 7 of the Convention. At no point in time have the best interests of the child been impaired by the State Party. The State Education Office fully respected the authors’ evaluation that it was in the best interests of their son to attend Saale school instead of Käthe-Kruse school or Humboldt school. Even if, assuming that the minutes of the meeting of 2 May 2013 were authentic, it was the Education Office’s assessment that the school that best suited Mr. Handke was in fact Käthe-Kruse school, such an assessment constituted no more than an opinion and was undisputedly not enforced in his case.

The State Party further submits that it has not violated article 9 of the Convention. The authors’ argument that the State Party violated it because the costs of transportation and travel assistance were not reimbursed is not valid. First, Mr. Handke was not denied access to transportation to Saale school. Transport was successfully provided by a cab company on a daily basis. Second, under the Convention, Mr. Handke did not have an individual right of access free of charge to a particular school of his preference. Under article 24 (2) (b) of the Convention, States Parties are required only to ensure access to inclusive, quality and free education in general. The State Party fulfilled this obligation by providing an opportunity for inclusive education at Humboldt school, in Naumburg. The costs of transport and travel assistance cannot, therefore, be considered an obstacle to the accessibility of the school environment, in the sense of article 9 (1) of the Convention, that must be eliminated by way of reimbursement. The accessibility of the school environment was sufficiently ensured by granting access to secondary education in Naumburg, the community where Mr. Handke lived.

Lastly, the State Party submits that the authors have not established that there has been a systematic failure to implement article 24 of the Convention in the State Party as a whole or in Saxony-Anhalt State. In order to ensure implementation of the right to education without discrimination as guaranteed in article 24 of the Convention, the federal states in the State Party have gradually created an inclusive education system at all levels through a wide range of legal financial and practical measures. Extensive inclusion concepts, programmes and action plans have been launched in all states to enable the participation of persons with disabilities on an equal basis with others in the education system. This does not mean that the structural duality between general schools and “special” schools has been completely abandoned. In some States, “special” schools are an important part of the school system; they usually have small classes and well-trained specialists. Saxony-Anhalt State also took a series of steps to ensure the right to inclusive education, not only amending its school legislation but also adopting, on 25 May 2021, a state action plan concerning the implementation of the Convention, which updated the former state action plan, of 2013, including goals on inclusive education. Progress in realizing inclusive education is also reflected in a constantly increasing number of students with “special educational needs” who are educated at general schools in Saxony-Anhalt. The number of students with cognitive impairments in Saxony-Anhalt tripled, from 37 to 121, in the 10 years leading up to 2020. The authors’ contention that there has been a general systematic failure to implement inclusive education in accordance with article 24 of the Convention cannot, therefore, be sustained.

In their comments of 26 January 2024, the authors reiterate that they have exhausted domestic remedies by bringing their complaint all the way to the Federal Constitutional Court. Those proceeding are the main proceedings, and not a secondary aspect, as the State Party claims. The refusal by the State Party’s competent school authorities to allocate Mr. Handke to Saale school is at the core of the violation of article 24 of the Convention and at the centre of the proceedings regarding his actual inclusive education without discrimination.

The authors submit that their son’s right to inclusive education without discrimination, asserted in their complaint, is his most personal right, for whose legal and actual realization they, as his legal representatives, are responsible. The fact that the authors had to bear the costs of his transport in his interests, in order to enable his inclusive school education without discrimination, does not render the communication inadmissible.

The authors submit that the complaint is also well founded. In the absence of the alternative of public inclusive education, they turned to Saale school, a private school with extensive and good experience of inclusive education based on the requirements of the Convention. Referring to the meeting held on 2 May 2013, the authors reiterate that there are two documents containing minutes of this meeting, one that they drew up after the meeting and another that was initially contained only in the pupil file kept by Saale school, which appears to have been written by a school officer but was not personally signed. Both documents are similar in content and reflect the view of the authorities that education in noninclusive “special” schools for persons with intellectual disabilities is a better alternative. The State Party, which initially characterized the authors’ minutes as insufficient evidence because they had originated from the parents concerned, now also casts doubt on the evidential value of the second set of minutes because it has not been signed by hand and the possibility cannot therefore be excluded that it is merely a draft. The authors take the view that the authorities are obliged to document their behaviour and communication and to keep these files. Moreover, even an unconsolidated version is likely to express the content of the conversation at least reasonably plausibly. Since the internal affairs of the authorities are a matter for the State Party, it could have conducted its own investigations to clarify the facts. If it had done so, it would have been appropriate to present these investigations transparently and conclusively; if not, the question would remain as to why it had not done so.

In view of this, it is understandable that the authors reacted with little optimism to the letter dated 8 July 2013. The letter merely states, with sober and vague wording, that the necessary conditions for inclusive educations were available or could be created at both public schools, as at Saale school. The letter was received in July, just a few weeks before the start of the school year, and it remains unclear what the State Education Office understood to be the “necessary conditions”. In May 2013, just a few weeks earlier, it had been announced that only two hours of support were available for joint lessons at the school. Those two hours per week cannot be used to provide inclusive lessons that meet the requirements of the concept of inclusive education in accordance with the Committee’s general comment No. 4 (2016) and article 24 of the Convention.⁴ Such rudimentary support does not correspond to the conditions at Saale school.

4. In the minutes, it is not specified whether the two hours referred to are per week or per day. ↩

The authors take the view that it is up to the school authorities and society as a whole to build appropriate structures on the basis of existing knowledge to impart specialist qualifications and to create the appropriate conditions for experience to be gained by all, such as through separate curricula, a sufficient number of teachers with appropriate prior training and experts in social pedagogy, and through intensive communication with pupils with disabilities, their parents and the corresponding specialist associations and organizations of persons with disabilities. Sending individual pupils to a non-inclusive environment, where there are no separate curricula, only two hours of support are provided per week and there have been no preparations or evaluations to ensure appropriate arrangements, will lead to failure, because inclusion can be experienced only as a lack of provision.

Schools in Saxony-Anhalt State, and in the State Party in general, are far from achieving inclusive education. The term “inclusion” is used only once in the 2018 Saxony-Anhalt State School Act. Only a few schools in the state’s school system have adopted inclusive teaching and learning. Inclusion at school is particularly difficult owing to insufficient resources and the lack of a generally recognized educational concept of inclusion, and because the needs of pupils for inclusive education are not assessed and common and individual goals to be achieved at school, for all pupils and for individual pupils, have not been formulated.

The discrimination experienced by the authors’ son in violation of article 24 of the Convention was as follows: he did not have access to inclusive, quality and free secondary education on an equal basis with other children in the community in which he lived, no reasonable accommodation of his requirements was provided, he did not receive the support required, within the mainstream school system, to facilitate his effective education, and he was not provided with individualized support in an environment that maximized academic and social development. The authors spent a long time trying, in vain, to contact the school authorities to negotiate precisely these conditions. Their efforts led only to a first meeting a short time before Mr. Handke started secondary school, at which a non-inclusive path was recommended instead of an inclusive path. Although it was claimed that he could also be educated inclusively at a general school, this claim was made very late and was not substantiated. Ultimately, what was offered was not inclusive education, but a rudimentary integrative programme that was not based on any concept, or at least on any concept that had ever been presented to the authors in a coherent manner. As far as is known, the education offered contained no inclusive elements, either then or in the period thereafter. However, article 24 of the Convention is precisely intended to prevent individual pupils from having to opt for inclusion in an environment in which there is neither an overall concept nor the necessary experience, and in which their hopes are likely to be disappointed.

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes the State Party’s argument with regard to victim status, that, in the present case, it seems that the victims are the authors of the communication as they claim that they have had to bear the burden of paying the costs of transportation and travel assistance and that the aim of the proceedings before the national courts was to obtain the reimbursement of these costs. However, the Committee also notes the authors’ argument that they were claiming their son’s right to inclusive education without discrimination. In that regard, the Committee also notes that Mr. Handke lacks sufficient capacity to consent and that the parents were therefore unable to obtain his consent to submit the communication on his behalf. The Committee considers that it is evident from the present communication that the alleged victim is the authors’ son, a person with recognized disabilities within the meaning of article 1 of the Convention, and that he is claiming his right to inclusive education through the authors’ representation. Therefore, the Committee concludes that the authors have jus standi under article 1 of the Optional Protocol and that it is not precluded from considering the present communication on the basis of this provision.

The Committee notes the State Party’s argument that the authors have exhausted domestic remedies with respect to only one specific aspect of the dispute – their request that the State Education Office amend the school allocation order to assign their son to Saale school – and not with respect to their request to be reimbursed the costs of transportation and travel assistance to Saale school, as the proceedings before Halle Administrative Court and Halle Social Court were suspended pending the decision under the other proceedings. According to the State Party, no rule of national procedural law prevents the authors from reopening the suspended proceedings, and the decisions of both the administrative and the social courts would at that point, in case of need, be subject to further judicial review. The Committee recalls that domestic remedies need not be exhausted if they objectively have no prospect of success, but that mere doubts as to the effectiveness of those remedies do not absolve authors from the obligation to exhaust them.⁵ In the present case, the Committee notes the authors’ assertion that reopening the proceedings would have no prospect of success following the dismissal of their complaints by Saxony-Anhalt Higher Administrative Court and the Federal Constitutional Court, whereby they were seeking amendment of the school allocation order. In that connection, the Committee notes the authors’ argument that a formal order from the Education Office assigning Mr. Handke to Saale school was a mandatory prerequisite for the reimbursement of travel costs. Therefore, and given that the authors have exhausted domestic remedies up to the Federal Constitutional Court in the proceedings aimed at amending the school allocation order, the Committee considers that the complaint is admissible in accordance with article 2 (d) of the Optional Protocol.

5. D.L. v. Sweden (CRPD/C/17/D/31/2015), para. 7.3; and A.N.P. v. South Africa (CRPD/C/23/D/73/2019), para. 5.3. ↩

The Committee notes the State Party’s argument that the communication should be found inadmissible as manifestly ill-founded under article 2 (e) of the Optional Protocol. However, the Committee considers that the authors have sufficiently substantiated, for the purposes of admissibility, their claims related to their son’s right to inclusive education and non-discrimination. There being no other obstacles to admissibility, the Committee declares the communication admissible and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of the its rules of procedure.

The main question before the Committee is whether the school allocation order and the subsequent judicial decisions violated Mr. Handke’s right, as a child with disabilities, to inclusive education without discrimination. The Committee notes that, through a school allocation order, Mr. Handke was officially assigned to Humboldt school, a mainstream school, and to Käthe-Kruse school, exclusively for children with intellectual disabilities. A note was included in the allocation order stating that the State Education Office would not object to Mr. Handke’s enrolment at Saale school, a private school, which the authors preferred to the two public schools allocated. The Committee also notes that the official allocation order had significant implications for the authors in terms of eligibility for reimbursement of the costs of transportation and travel assistance, as such costs were reimbursed only with respect to the schools officially assigned in the school allocation order.

The Committee notes the authors’ argument that the State Party violated Mr. Handke’s rights to inclusive education because the school allocation order, dated 16 May 2013, and the subsequent court decisions did not officially assign their son to Saale school, a private school offering inclusive education, and that Humboldt school, a mainstream public school to which he had been allocated, did not offer inclusive schooling. However, the Committee notes the State Party’s argument that Mr. Handke was never denied the possibility of inclusive education in the community in which he lived. According to the State Party, the authors’ son could have attended Humboldt school, in Naumburg, which did offer inclusive education, contrary to the authors’ assertion. The Committee also notes the State Party’s argument that the authors have not submitted any conclusive evidence that Humboldt school was not inclusive. In this regard, the Committee observes that the authors refer to the minutes of a meeting held on 2 May 2013, at which they were allegedly informed that Humboldt school did not have the capacity, owing to the class sizes and available resources, to offer their son inclusive education. However, the State Party argues that the minutes of this meeting reflected only the memory of the authors and were signed only by them and the Head of the Montessori school in Naumburg. The Committee also notes the authors’ argument that the second set of minutes of that meeting noted that admission to a “specialized” school was recommended as a better alternative, and the authors’ assertion that Humboldt school offered only two hours of support for common instruction. However, the State Party argues that the second set of minutes was not signed. The State Party also refers to a letter, dated 8 July 2013, that was made known to the authors, whereby the State Education Office informed Burgenlandkreis District that all the material and personnel required were available or would have been made available in case of need, at both the public schools in Naumburg, in a similar way to Saale school. The Committee also notes the State Party’s assertion that in the 2013/14 and 2015/16 school years, two trained “special education” teachers and two additional teachers with further training in inclusive education were employed at Humboldt school. However, the Committee observes that the authors preferred to enrol their son in Saale school owing to its substantive experience in inclusive education since 2007, including recognition received. The Committee notes the authors’ argument that Saale school is located 60 km from their home and that they have to bear the costs of transportation and travel assistance as Mr. Handke was not officially assigned to Saale school in the school allocation order.

The Committee recalls that considerable weight should be given to the assessment conducted by the State, and that it is generally for the organs of States to review or evaluate the facts and evidence of the case, unless it can be established that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.⁶

6. N.L. v. Sweden (CRPD/C/23/D/60/2019), para. 7.3; and Z.H. v. Sweden (CRPD/C/25/D/58/2019), para. 10.3. ↩

In the present case, the Committee notes that the authors challenged the school allocation order before the courts and requested that it be amended to officially assign their son to Saale school, a private school, as they considered it to be an excellent school with many years of experience in inclusive education. The Committee notes that the judicial authorities dismissed the complaint, arguing that the authors lacked the right of action as they could not claim to be entitled to allocation by the State Education Office to Saale school, as there was no legal basis for their claim and the education law did not allow the Education Office to allocate private schools in school allocation orders. The Committee notes the authors’ objection that the judicial authorities did not enter into the merits of the case. However, the Committee notes that, from a reading of the decisions in question, it cannot be established that the evaluation by the authorities was clearly arbitrary or amounted to a manifest error or denial of justice, because there was no legal basis for the authors’ claim. In addition, the authors have not demonstrated that Humboldt school was unable to provide Mr. Handke with reasonable accommodation so that he could enjoy his right to inclusive education, particularly in the light of the State Party’s uncontested assertion regarding the existence of teachers at Humboldt school who have been trained in inclusive and “special” education. The Committee therefore considers that, on the basis of the information on file, it cannot conclude that the school allocation order and the dismissal by the judicial authorities of the authors’ request to amend it amounted to a violation of Mr. Handke’s rights under articles 5 (3), 7 (1), 9 and 24 (1) and (2) of the Convention. Consequently, neither can the Committee conclude that the State Party’s failure to reimburse the authors for the transportation costs associated with Mr. Handke’s attendance at a different school of their choice amounted to a violation of Mr. Handke’s rights under the Convention.

In the light of the above, the Committee is of the view that the facts before it do not disclose a violation of articles 5 (3), 7 (1), 9 and 24 (1) and (2) of the Convention.

The Committee, acting under article 5 of the Optional Protocol, is of the view that the facts before it do not disclose a violation of articles 5 (3), 7 (1), 9 and 24 (1) and (2) of the Convention.