G, R (on the application of) v Westminster City Council

A local education authority complies with section 19 of the Education Act 1996 where suitable education is available and it is reasonably practicable for the child to receive it. The word “otherwise” covers situations in which a child cannot reasonably take advantage of any existing suitable schooling.

Unreasonable parental objections to an available school must be disregarded. Persistent bullying or comparable exceptional circumstances may, however, make attendance unreasonable and require alternative arrangements. Where suitable education remains reasonably practicable but the child does not attend, the authority may need to exercise its attendance or welfare powers, but it does not breach section 19.

G, a 15-year-old registered pupil at St George’s School, did not return after a seven-day exclusion. His father considered that persistent bullying made the school unsuitable and sought alternative education from Westminster City Council. The Council maintained that the available place at St George’s discharged its duty under section 19 of the Education Act 1996.

A Deputy High Court Judge in the Administrative Court rejected G’s judicial review claim. On appeal, the principal questions were whether illness prevented G’s return, whether his father reasonably refused to permit it, and whether section 19 required alternative provision where an existing suitable school remained available.

1. Appeal dismissed. The evidence did not establish that illness prevented G from attending St George’s. Although he required assistance to return successfully to mainstream education, St George’s was capable of providing an appropriate reintegration package.

2. G’s father acted unreasonably by withdrawing him when no alternative school was available and by refusing to consider the support proposed by St George’s. The school could provide education suitable to G’s age, ability, aptitude and special educational needs within section 19(6) of the Education Act 1996.

3. Section 19 applies where a child cannot attend an existing suitable school because of illness, exclusion or another circumstance which makes it not reasonably possible to take advantage of suitable schooling. The second use of “otherwise” therefore covers any other situation in which existing suitable education is not reasonably practicable for the child. This construction accords with the statutory language, the ejusdem generis approach and the wider statutory scheme.

4. Where an authority has made suitable education available and it is reasonably practicable for the child to receive it, section 19 does not require alternative provision merely because the child does not take advantage of that education. In such circumstances, responsibility may instead lie in the authority’s failure to exercise school-attendance or child-welfare powers.

5. Unreasonable parental objections must be disregarded when reasonable practicability is assessed. Conversely, exceptional circumstances may make attendance unreasonable despite the school satisfying section 19(6) and there being no physical impediment. Persistent bullying which a school cannot prevent may have that effect.

6. The parliamentary material admitted under Pepper v Hart [1993] AC 593 did not contain the clear and consistent ministerial statement needed to assist construction. Circular 11/99 did not support a duty to arrange alternatives for voluntary absence. Article 8 of the European Convention on Human Rights added nothing to the statutory obligations in issue.

7. A suitable place remained available at St George’s and attendance was reasonably practicable. G’s loss of schooling was therefore not attributable to a breach of section 19, although the Council might arguably have failed to use its powers to secure his attendance; no such claim had been advanced.

• Court of Appeal (Civil Division): By [2004] EWCA Civ 45, dismissed G’s appeal and upheld the rejection of his claim that Westminster City Council had breached section 19 of the Education Act 1996.
• Administrative Court: Mr George Bartlett QC, sitting as a Deputy High Court Judge, rejected G’s judicial review claim. No citation is stated in the judgment.