Control by the Maintainer
In the past year we dealt with submissions related to the merging, reorganisation and closure of public education institutions in several cases. The huge number of complaints received about this topic shows that pupils, parents and teachers regard the closing and reorganisation of kindergartens and schools as grave injury.
In our investigations we made use of the interpretation of fundamental rights by the Constitutional Court, and the investigations of the Parliamentary Commissioner and the Deputy Commissioner for Civil Rights about similar topics.
The right to education is part of the group of rights known as the second generation of fundamental rights provided for in the Constitution; it is a value based on social agreement that appears as an objective of the state. The state realises the fulfilment of its tasks undertaken in acts partly through the local authorities by providing - among others - the possibility of free and compulsory primary school education. The local authority as maintainer - within the limits imposed by legal regulations - possesses high level of independence in the formation and organisation of institution structure. Its decisions to provide public service can be reviewed only with respect to their compliance with the law; no organisation has the right to review them on the ground of expedience. The reorganisation, merging or closure of educational institutions that can be experienced countrywide are natural consequences of economic and demographic reasons. The reorganisation, merging or closure of an institution can not be regarded as unlawful in itself, if the maintaining authority complies with the relevant regulations with a guarantee function. Review of the legal compliance of an act to close an institution may consist of the investigation of whether these guarantee rules were respected.
The education conditions of children are of outmost importance to the inhabitants of a settlement, but at the same time the changing or streamlining of the institutional system due to the changing circumstances and the continuous service are sometimes inescapable. These in turn always causes some injury to the employees and pupils of the institution and their parents. The rights of the parties concerned in the case are protected partly by a compulsory procedural rule, the request for their opinion, partly by the legal requirement that education should be maintained at satisfactory level in such a way that its use does not result in irrational load on the pupil and parent. For this decision the professional opinion of the local authority of the capital or county - based on the development plan - should be acquired. Pursuant to the provision of the Public Education Act effective from 1 September 2003 the local authority should also acquire the opinion of an expert registered in the National Experts Register in order to give opinion on its planned measures.
An opinion of an expert is a validity condition for the decisions concerning the closure of schools, passed after 1 September 2003, when the amendment of the act came into force. The expert should take a stand in the question whether the suggested solution ensures the provision of the given activity or service in an appropriate quality. The opinion of the expert shall be sent to the local authority of the capital or the county simultaneously with the request for professional opinion. An independent expert - upon the request of the local authority - is suggested by the National Public Education Evaluation and Examination Centre.
The Public Education Act also provides for seeking legal remedy against the maintaining authority's decision. Under Paragraph (12) of Article 84 of the Act, when a legal regulation requires a preliminary opinion, agreement or professional opinion for passing a decision falling under the competence of the maintaining authority, a decision passed in neglect of this requirement can be attacked. The successfully attacked decision becomes invalid from the time it was passed. The parties entitled to attack are the offended party and those who possess legal interest in attacking. Attack must be indicated in writing within three months, then enforced within fifteen days in the case the indication is inconclusive.
Act LXV/1990. on Local Authorities lists ensuring kindergarten and primary school education among the compulsory tasks of settlements' local authorities. These tasks are performed by the local authorities as determined in the Public Education Act. However, legal regulations do not require the institutions to be maintained, but the services to be provided. The local authorities may decide about the extent and the way of fulfilling compulsory tasks. Consequently, local authorities may provide kindergarten and primary school education not only by setting up and maintaining institutions, but also by participating in a partnership or through an agreement with another local authority or maintainer.
| A parent filed a complaint that his settlement had no primary school, therefore the children received education in another settlement, in boarding form. Based on the above, our position is that the fact that not every settlement operates a school is not a violation of the law by itself, because smaller local authorities may provide primary education in the form of a partnership as well. The situation offending the parent may be injurious to the interests of the persons concerned, but the provision of a remedy is not in the competence of our Office. However, after consulting with the petitioner, the case was referred to the leader of the Integration Office of Socially Disadvantaged and Roma Children of the Ministry of Education to take the possible measures in order to solve the problem. (K-OJOG-58/2003.)
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Pursuant to the Public Education Act, it is also the right of the maintainer to decide on the number of classes and groups in public education institutions. However, the maintaining authority can not infringe other provisions of the Act with such decisions.
| A parent turned to us with a complaint that in one of the primary schools maintained by the local authority in the town, the classes in the 1st grade of schooling started with 30 and 31 students in the school year 2002/2003, which was not in compliance with the number laid down in the Public Education Act. Both the head of the institution and the mayor gave the Office the information that the local authority truly allowed two first-grade pupil groups in the school. The first-grade classes were started with 30 and 29 students, partly because - due to the increased parent demands - first-grade classes started with more than 26 students in every school of the town, partly because in this school year they had to enrol students returning from Canada. Pursuant to Paragraph (5) of Article 66 of the Public Education Act the principal decides on how the pupils admitted into the school are arranged into classes or groups by requesting the opinion of the professional association, or in its absence of the education staff.
The rules of the arrangement of classes and groups are specified in Annex 3 to the Act. This states that in the first 4 grades of the school, classes should be organised in a way that the number of children (pupils) admitted to school classes does not exceed the maximum number of 26. The maximum number set for school classes can be exceeded at most by 20 percent in the beginning of the educational or school year if only one class of the given grade starts in the school; moreover, during the educational or school year in the case if it is justified by the acceptance of a new child (pupil). The institution started two first-grade classes and the number of students had exceeded the allowed number of 26 before the beginning of the school year. By admitting more than 26 pupils, the head of the institution violated the rules concerning the organisation of classes, which are provisions of guarantee function in the context of providing education in accordance with the abilities and aptitudes of children, as stated in Section a) of Paragraph (3) of Article 10 of the Public Education Act. As it was not clear from the documents of the case whether the institution was the school providing compulsory admission to each of the admitted pupils, we regarded the following statement necessary. If, pursuant to the decision of the local authority, this institution was the school providing compulsory admission to every child applying into first-grade class, the head of the institution could not lawfully refuse the admission of pupils. At the same time, pursuant to Paragraph (1) of Article 54 of the Public Education Act, the head of the public education institution is responsible for the lawful operation of the institution. Therefore within the context of ensuring the lawful operation of the institution, the principal should have taken the necessary measures towards the maintaining authority. We concluded that the local authority was aware of the problem, as it had allowed a number of extra lessons to solve it. However, the agreement between the maintaining authority and the school allowing extra lessons did not restore lawful conditions in the institution, it could only have been restored through the starting of a new class. Based on the above regulation, we stated that the organisation of school classes at the beginning of school year 2002/2003 was unlawful.
Accordingly, we turned to the head of the institution with the initiative that in the following school year, he should organise classes in accordance with the rules laid down in the Public Education Act. The head of the institution accepted our initiative.
Based on Paragraph (1) of Article 66 of the Public Education Act, admission to the institution resulted in the formation of student status, which could only be terminated in the way determined in the Act. The Act does not allow the unilateral termination of student status by the institution if the number of admitted students exceeds the limit allowed by the maintaining authority. Based on Paragraph (2) of Article 104 of the Public Education Act, the maintainer is authorised to do so within 1 year, provided that the grounds for taking action to restore lawfulness are present. In our opinion, the lawful solution of the case would have been for the local authority to invalidate the admission of a group of pupils selected on a reasonable basis, and to provide educational provision for them in another school, or to accept the admission decisions and enable the school to start a third class. The maximum limit of class size set in the Public Education Act is a guarantee of the enforcement of the right of pupils to education appropriate to their abilities, interests and talents. We concluded that the failure of the maintainer to take necessary measures and the failure of the head of the institution to act in accordance with the requirements of the above regulation infringed the right to education of the first-year pupils concerned. Therefore we turned to the mayor of the settlement with the initiative that within his sphere of authority as the maintainer, he take every necessary measure to ensure that the size of classes in the grade examined comply with provisions of law. The mayor accepted our initiative. (K-OJOG-99/2003.)
Parents submitted the following complaint to our Office. The Board of the Representatives of their town decided that the school could not start a first-grade class in the school year 2003/2004 despite the fact that twenty parents enrolled their children at the institution. The petitioners objected to the fact that the decision was passed after enrolment. The parents found it injurious that - contrary to the other schools of the town - no first-grade class could start in this school with twenty pupils. Upon our request the mayor of the town gave the information that the maintainer changed its decision so the school could start a first-grade class. We concluded that the local authority found remedy to the infringement of rights indicated by the parents in its own sphere of competence, and closed the case. (K-OJOG 435/2003.)
The child of the petitioner participated in the entrance examination of a language specialty class of a secondary grammar school. The student fulfilled the requirements necessary to admission but received refusing decision from the head of the institution. Both the head of the secondary grammar school and the employee of the local authority confirmed that the reason of refusal was that - because the small number of applicants made it uneconomical - the institution decided not to start the class in concern. During the investigation we contacted both the school and the employee of the maintainer. The claims of the petitioner were confirmed. In his answer dated 12 May 2003, the head of the institution declared that although he knew that in such cases legal regulations make the call for repeated entrance examination compulsory, due to the small number of students, the school also posted refusing decision to the already admitted students.
Paragraph (2) of Article 18 of the Decree 30/2002. (V. 17.) OM of the Minister of Education on the Order of the School Year 2002/2003 stipulates that in the case when less than ninety percent of the admissible student limit is filled through the general entrance procedure, an exceptional entrance procedure should be called for between 7 May and 20 May 2003. Pursuant to this legal regulation, the principal had no power to refuse the application of the students in concern with reference to not starting the class, moreover he should have called for exceptional entrance procedure to fill the vacancies. Therefore we presented to the maintainer of the school a proposal to take the necessary measures to restore lawful conditions. The maintainer did not accept our proposal, claiming that the experience of the previous years indicated the vacancies were not likely to be filled through the exceptional entrance procedure. At the same time the maintaining authority informed our Office that they were in continuous consultation with the principal concerning the admission of the refused students to other institutions. (K-OJOG-341/2003.) |
The provisions of the Public Education Act make a clear division between the decision-making competences of the maintainer and those of the public education institution. Based on this, it can be decided unanimously whether a given case falls in the sphere of competence of the public education institution or the maintainer. This not only represents a division of labour between the institution and the maintainer, but in several aspects also possesses guarantee function. Furthermore, these provisions ensure that the maintaining authority can not take over competences from the institution.
| A parent was interested whether the Board of Representatives of the local authority maintaining the kindergarten could transfer employer's rights belonging to the kindergarten headteachers to the mayor of the settlement. Paragraph (1) of Article 54 of the Public Education Act contains the following provision. The head of the public education institution is responsible for the professional and lawful operation of the institution and the economical management, exercises employer's rights and makes decisions about all issues concerning the operation of the institution which are not transferred to the sphere of competence of another person pursuant to a legal regulation or collective bargaining agreement (or the regulation on public employees). The above provision therefore states that regarding public education institutions, employer's rights are exercised by the head of the institution. The public education institution is separated from its establisher and maintainer, therefore the institution should be led by a responsible leader possessing independent decision-making competence.
Therefore our position is that the Board of Representatives can not take away employer's rights from the head of the institution and transfer them to the mayor. (K-OJOG-10/2003.) |
Under Paragraph (3) of Article 115 of the Public Education Act the child (pupil) pays a fee for the meals taken in the educational and training institution, with the fee being calculated as provided in the legal regulation. Under Paragraph (4) of Article 117 of the Act, the maintaining authority determines the rules that form the basis of the decision of the head of the kindergarten, school or dormitory about - among others - the fee, the allowances based on academic results and social conditions, and the way of payment. However, the maintaining authority shall respect the rights of the children (pupils) when determining these rules.
The members of a parental community turned to us with a complaint that the pupils living in the countryside are subject to negative discrimination at school. The parents told us that based on the decision of the local authority, the school provided the meal to pupils living in Budapest and in the countryside for different fee. The pupils living in the countryside received the same service for higher fee than their peers living in Budapest. The parents told us that unjustified distinction was also made between pupils in grades 1-4 and grades 5-8, as the pupils living in Budapest and studying in grades 1-4 had to pay a higher fee than the pupils in grades 5-8. Upon our request the mayor of the town informed our Office that the mayor had taken the necessary measures to resolve the situation the parents complained about; as a result, the discrimination between the students concerning fees paid for meals was no longer in effect. As the mayor had found remedy to the condition causing grievance in his/her own sphere of competence, we closed the case without further investigation. (K-OJOG-893/2003.)
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