KS & Anor, R (on the application of) v London Borough of Croydon

A local education authority exercising its duty under Education Act 1996, section 19, must consider the individual circumstances, abilities and educational needs of each child. A generic assessment of a group is insufficient. The authority must decide what suitable education is reasonably practicable, whether at school or otherwise than at school, and may take account of factors including educational history and language ability. The court must respect the authority’s professional judgment, but may intervene on conventional public law grounds where the decision-making process is irrational, inadequately reasoned or fails to consider relevant matters.

The claimants were looked-after, unaccompanied asylum-seeking children of compulsory school age. They had been unable to obtain full-time secondary school places and had received only limited educational provision. One related claim was withdrawn after a school place was found.

The rolled-up judicial review hearing was divided. This stage concerned whether the Council had complied with its duty under section 19 of the Education Act 1996 by providing suitable interim education. The wider challenge concerning the sufficiency of secondary school provision under sections 13 and 14 was adjourned.

1. The section 19 duty. The Council had not properly exercised its duty under section 19 of the Education Act 1996 in respect of KS and ZU. The provision at Purley Language College could in principle constitute education otherwise than at school, and section 19 did not yet require full-time education because the relevant amendment was not in force.
2. Individual assessment required. The Council had failed to demonstrate that it had considered what was suitable education for each child according to his individual abilities and needs. The assessment had treated the claimants generically as members of a group. Relevant considerations included educational history, ability to speak and write English, and other matters bearing on the efficiency of the child’s education. The Council’s dispersed social-services records did not establish a rational section 19 decision-making process.
3. Role of the court. It was initially for the local education authority to determine what education was suitable and reasonably practicable. The court should not usurp that expert statutory function, consistent with C v London Borough of Brent Council [2006] EWCA (Civ) 728 and R(S) v Kent County Council [2007] EWHC 2135 (Admin). That deference presupposed a lawful decision-making process. Where relevant considerations had not been addressed, conventional Wednesbury review permitted relief.
4. Relief and costs. The Council was ordered to comply with section 19 by reconsidering the needs of KS and ZU and putting suitable education in place by 9 am on 27 October 2010. The order did not prescribe the particular form of education. The claimants were awarded their costs relating to the section 19 issue and the interim provision application. Other costs were reserved.

The judgment describes earlier procedural steps in the Administrative Court. Collins J expedited the claim on 6 September 2010 but refused interim relief. On 27 September 2010 Lord Carlile of Berriew QC, sitting as a deputy High Court judge, granted interim relief requiring the Council to provide suitable interim education under section 19. The present court determined the section 19 issue and adjourned the wider sections 13 and 14 issue.