D, R (on the application of) v Hampshire County Council

Under section 19(1) of the Education Act 1996, the question whether illness prevents a child from receiving suitable education is assessed by applying a reasonable possibility or reasonable practicability standard in context. The statute does not impose a separate test of absolute impossibility for illness cases.

At the permission stage, the court reviews the local authority’s reasoning and does not exercise an original merits or best-interests jurisdiction. Where the alleged breach is ongoing, the court may consider updated evidence and the current position, while maintaining the local authority as the primary decision-maker.

The claimant, an eight-year-old child who had been absent from school since September 2019, sought judicial review of Hampshire County Council’s alleged continuing breach of its duty under section 19(1) of the Education Act 1996.

The council accepted that the duty existed but contended that its statutory trigger was not engaged and that it had reasonably concluded that attendance was practicable. The claimant challenged the council’s use of a reasonable-practicability test in an illness case and its reasons for rejecting medical and educational evidence.

The court considered whether either ground was arguable at the permission stage.

1. Outcome. Permission for judicial review was refused on ground one and granted on ground two.
2. Section 19(1) of the Education Act 1996 does not establish a dichotomy between an impossibility test for illness and a reasonable-possibility or reasonable-practicability test for the other statutory triggers. The language used in G [2004] EWCA Civ 45 was understood as explaining an ejusdem generis and symmetrical approach to the three categories. The appropriate standard is applied contextually.
3. The central issue was therefore whether the council had reasonably and justifiably applied that standard to the evidence. The court’s jurisdiction was supervisory. It was not an original jurisdiction, merits appeal or best-interests jurisdiction.
4. Ground two was arguable because the council’s reasons arguably failed reasonably to justify rejecting the consultant psychiatrist’s view, appeared to mischaracterise the general practitioner’s evidence, and did not adequately address the educational psychologist’s evidence that the child could not access mainstream schooling without further support.
5. Because the claim concerned an alleged ongoing failure to discharge a statutory duty and sought declaratory and mandatory relief, updated evidence could be considered. This did not convert the proceedings into a merits review. The local authority remained responsible for evaluating the statutory trigger.
6. The court declined to direct that a later consultant’s letter be treated as formal expert evidence under CPR Part 35. The parties’ duties to cooperate and the court’s ability to assess relevance and weight were sufficient at that stage.
7. Costs were ordered to be costs in the case. Directions were given for the substantive claim.

This was a first-instance permission hearing in the Administrative Court. Freedman J had directed that permission be considered at an oral hearing.