DS, R (on the application of) v Wolverhampton City Council

Section 19 of the Education Act 1996 requires alternative educational arrangements where, for a reason other than illness or exclusion, it is not reasonably possible for a child to take advantage of existing suitable schooling. Parental preference alone does not engage the duty. The question is objective and focuses on whether the education offered is available and accessible to the child. Exceptional circumstances may make attendance unreasonable even without a physical impediment. A serious one-off safeguarding failure and inadequate communication did not, on the facts, make attendance objectively unreasonable where the school remained suitable and could address its deficiencies. Where section 19 is engaged, provision must ordinarily be full-time, on a par with mainstream schooling and consistent with the child’s EHC plan.

DS, a thirteen-year-old child with autism and severe learning difficulties, stopped attending his maintained special school after being returned home on school transport partially undressed. His parents sought alternative education and a different school placement. The Council investigated the incident, revised safeguarding arrangements and offered limited home and other provision, while maintaining that the original school remained suitable.

DS sought judicial review for breach of section 19(1) of the Education Act 1996. The choice of school in a revised EHC plan was before an appeal to the First-tier Tribunal and was outside the scope of this claim. The central issues were whether section 19 required alternative arrangements and, if so, whether the provision offered was adequate.

1. The claim failed. Section 19 was not engaged because Tettenhall Wood School remained suitable and available to DS.
2. The expression “or otherwise” in section 19 extends the duty beyond illness and exclusion to other situations in which it is not reasonably possible for a child to take advantage of existing suitable schooling. It does not include simple parental preference.
3. The relevant question is objective. The court must determine whether the offered education is reasonably possible, reasonably practicable, available and accessible to the child. Parental objections are not determinative, although exceptional circumstances may make attendance unreasonable despite the absence of a physical impediment.
4. The incident involving DS was a serious error, particularly given his vulnerability and lack of continence. The school’s subsequent communication was inadequate. Nevertheless, the incident was treated as a one-off failure rather than evidence of systemic incapacity. Safeguarding policies and staff training had been reviewed, and the school remained capable of providing suitable education. The parents’ continuing refusal to contemplate DS’s return therefore did not make attendance objectively unreasonable.
5. Although unnecessary to the result, the court held that any provision required under section 19 would have to be full-time, on a par with mainstream schooling and consistent with the EHC plan. Ten hours of weekly assistance, together with outreach support, would have been inadequate.
6. The application for judicial review was dismissed. The revised plan provided for attendance at Wightwick Hall School from 10 July 2017.

First-instance judicial review in the Administrative Court. The judgment states that an appeal to the First-tier Tribunal concerning the choice of school was pending; that issue was outside this claim.