R, R (on the application of) v Kent County Council

Under section 19 of the Education Act 1996, the question is whether suitable education is objectively available and reasonably practicable for the child to access. The test is strict and approaches, without reaching, impossibility. It is not determined by the child’s or parents’ reasonable objections alone. The local education authority must initially assess suitability and reasonable practicability, subject to judicial review. The court will scrutinise that assessment closely, but will not substitute its own view where the authority has acted rationally, considered the child’s needs and relied on professional judgment. Bullying and anxiety may be relevant, but do not automatically make an existing school unavailable. A lengthy journey may be a second-best option without being irrational.

The claimant was a 14-year-old child who had stopped attending school after bullying at his local secondary school and a later bullying incident at a private school. He was receiving home education, which the educational experts considered undesirable. Kent County Council maintained that the local school remained suitable and reasonably practicable, with reintegration support, and identified a more distant alternative if necessary.

The claimant sought judicial review under section 19 of the Education Act 1996, arguing principally that the authority had failed to arrange suitable education because returning to the local school posed a serious risk to his mental health, and alternatively that travelling unaccompanied for about one hour and 17 minutes was irrational.

1. The application for judicial review was dismissed. The authority had not breached its duty under section 19 of the Education Act 1996.
2. Following G v Westminster City Council [2004] EWCA Civ 45, the “otherwise” limb of section 19 concerns situations in which it is not reasonably possible or reasonably practicable for a child to take advantage of existing suitable schooling. The focus is objective. The issue is whether provision is available, possible and accessible, rather than whether the child or parents reasonably object to it.
3. The local education authority must initially determine what education is suitable and what provision is reasonably practicable. Its assessment remains subject to close judicial scrutiny. However, judicial review does not permit the court to substitute its own view for a rational professional judgment which takes account of the child’s personal needs.
4. The local school remained available and reasonably practicable. The authority was entitled to weigh the claimant’s reluctance and the educational psychologist’s report against the timing and focused nature of that report, the later bullying experience, and contrary professional evidence. The evidence did not establish the high threshold of illness or impossibility, nor show that the authority’s conclusion was outside the bounds of reasonableness.
5. The alternative school involving a journey of approximately one hour and 17 minutes was less satisfactory but not irrational. The authority’s general policy contemplated unaccompanied journeys of up to one and a quarter hours, subject to age and circumstances. Any individual issue about whether transport costs were necessary for the purposes of the statutory travel duty had not been addressed and would require a fresh determination if the alternative school were pursued.
6. The judge emphasised that practical cooperation and exploration of reintegration options should precede litigation where possible, particularly because the claimant was receiving no mainstream education.

This was a first-instance judicial review. Permission was initially refused on the papers, but was granted on renewal by Langstaff J in May 2007.