Whose opinion takes precedence in a dispute over provision, asks Michael Segal – parent or local authority?

QUESTION: Whose opinion takes precedence in a dispute over provision – parent or local authority?

ANSWER: in the case of R(R) v Kent County Council [2007] ELR 648, a boy of 14, S, started his local school, the W School in September 2004. He was called names, and bullied. His father met the headmaster, who took the complaint seriously.

S did not want to continue at W school and, in April 2005, his parents withdrew him. He attended a private school for a year but, again because of bullying, his parents withdrew him. After this, S was educated at home, although two education experts said that he should enjoy the benefits of a mainstream education where he could socialise with other pupils.

The dispute
Discussions took place with the LEA as to what education it should provide. The LEA said that W School was the local school and remained available for S. Educational welfare officers could help re-introduce him to it.

The LEA said S’s withdrawal from W School was not reasonable, and the education offered at that school was suitable, and available.

Judicial review
S applied for judicial review of the LEA’s decision. An educational psychologist said that it would be detrimental for S to return to the W School, and that it was crucial to integrate him into another school that could meet his needs.

The LEA disagreed, and relied upon its own educational welfare officer, who was also the senior specialist dealing with vulnerable children. S relied on s. 19(1) of the Education Act 1996, which says that each LEA must provide suitable education for those children who by reason of illness, exclusion or ‘otherwise’ may not receive suitable education unless such arrangements are made. S argued that in offering him W School, the LEA was in breach of its duty to make proper arrangements for the provision of suitable education.

The Judge said that S was not ill within the meaning of s. 19(1). The real issue was, if the LEA did not make proper arrangements for him, would he ‘otherwise’ receive suitable education?

In G v Westminster City Council [2004] ELR 135, a bullying case, the Court of Appeal held that ‘otherwise’ applies where there is no existing suitable education available that it is reasonably practicable for the child to attend. If there is no such education, then the LEA is in breach of s. 19(1). The decision as to whether it is reasonably practicable for the child to attend is for the local authority.

Local Authority decides
In C v London Borough of Brent [2006] ELR 435, another bullying case, Smith LJ said: ‘The LEA is entitled, indeed bound, to form its own view of what is suitable education for C … It must pay attention to C’s views and those of her parents, but in the end it is for the LEA to form a professional judgment.

‘If that judgment and the action taken in pursuance of it is sensible and rational and takes into account C’s personal needs, it cannot be impugned by judicial review simply because C and her parents profoundly disagree.’ And Laws LJ said: ‘The decisions falling to be made as to the provision of educational facilities for C after she had been excluded were quintessentially for the local education authority to make.’

Court will not intervene

The Judge in S’s case said that the education at W School was practicable because it was available, with the necessary support. But was it reasonably practicable? The answer was yes, he said: ‘Bullying is always a distressing experience … But it must be recognised that these risks can never be entirely eliminated… To some extent coping with the ordinary rough and tumble of school life, is part of the growing up and educational experience. ‘The education authority were entitled to conclude that W School was available and reasonably practicable for S to attend, not withstanding the report of the claimant’s educational psychologist. Only where the local authority had gone beyond the bounds of reasonableness would the court intervene in ‘what is a fact sensitive question of judgment by educational professionals’, the judge said.’

A robust approach
The interest of this case lies not so much in the court’s interpretation of s. 19(1), but in the robust approach it took to the problem of bullying.

Michael Segal is a district judge in the family division of the High Court

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