HR, R (on the application of) v Medway Council

Under section 19 of the Education Act 1996, a local education authority must provide suitable education where it is not reasonably practicable for a child to receive suitable education otherwise. The duty does not arise merely because a child or parents reject a school which the authority considers suitable and accessible. Suitability involves the authority’s professional judgment, subject to close public-law review, but the reviewing court must not determine the educational merits or choose between competing expert opinions. Intervention pending an appeal to the specialist tribunal is exceptional, particularly where it risks trespassing on matters within that tribunal’s jurisdiction. Article 2 of Protocol 1 adds nothing substantive to the statutory duty in this context.

HR, a 14-year-old girl with Asperger Syndrome, anxiety and related mental-health problems, had been placed in a hospital special school named in her statement of special educational needs. Her parents withdrew her and sought judicial review compelling Medway Council to fund a place at another specialist school, which all parties accepted was suitable but which the authority considered unnecessary.

The parents had appealed parts 2, 3 and 4 of the statement to SENDIST. That appeal was part-heard and a decision was expected shortly. The central issues were whether the authority remained in breach of section 19 of the Education Act 1996 while the appeal was pending, whether attendance at the existing school was reasonably practicable, and whether Article 2 of Protocol 1 required a more intensive merits review.

1. Outcome. Permission to bring judicial review was refused. The claim would fail because the authority had discharged its duties under section 19 of the Education Act 1996, read with Article 2 of Protocol 1.
2. Convention right. Article 2 of Protocol 1 added nothing substantive to the section 19 duty. The Convention right guaranteed effective access to the state’s educational facilities, but not education of a particular kind, quality or institution. A separate breach of the Convention right was therefore not established where section 19 was not breached.
3. Scope of section 19. Following R(G) v Westminster City Council and C v London Borough of Brent, the duty does not arise where the authority has arranged suitable education which it is reasonably practicable for the child to attend. A child’s antipathy, or parental disagreement about which school is best, does not by itself engage the duty. Exceptional circumstances may exist where attendance is objectively unreasonable, such as a serious risk of sexual assault or comparable trauma.
4. Review function. The authority must exercise professional judgment about suitability and reasonable practicability. The court reviews that judgment with close or anxious scrutiny, but remains a court of review and must not determine the underlying educational merits. It should not choose between competing competent experts unless the relied-on opinion is unqualified, manifestly inconsistent with the evidence, or unsupported by necessary empirical material.
5. Pending tribunal appeal. A pending SENDIST appeal does not remove the authority’s statutory duty. Nevertheless, judicial review intervention is exceptional where it might trespass on the tribunal’s merits jurisdiction or affect its decision. On the evidence, School A was reasonably practicable and the authority’s conclusion that it was suitable was not irrational or perverse. No breach was shown.

The matter came before the Administrative Court as an expedited rolled-up application for permission to seek judicial review and, if permission were granted, determination of the claim. Earlier applications for mandatory interim relief requiring funding of a place at School B had been refused. The claimant’s statutory appeal against the statement of special educational needs remained pending before SENDIST.