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

Section 19(1) of the Education Act 1996 imposes a mandatory duty where illness or another qualifying circumstance makes it not reasonably possible or practicable for a child to take advantage of suitable schooling. The decision belongs to the local authority, which must consider the available medical, educational and other evidence, including information from the child’s school. A local authority is not legally bound to accept a medical expert’s opinion about whether a child is fit to attend school. It may assess the reliability and scope of the information underlying that opinion and give greater weight to contrary evidence, provided its decision is rational and lawful in public-law terms. The court will not substitute its own assessment of the child’s educational needs.

D, an eight-year-old child with autism spectrum disorder, asthma and urinary incontinence, had been out of school since September 2019. His parents relied principally on reports from a consultant psychiatrist, Dr Fry, stating that anxiety and associated difficulties made him unable to attend school. The local authority considered that he could attend a mainstream school with suitable support and refused to arrange alternative provision under section 19(1) of the Education Act 1996.

The claim for judicial review alleged that the authority had addressed the wrong question, considered irrelevant matters, failed to consider relevant matters and acted irrationally. The court considered both the position when the claim was issued and subsequent expert and educational evidence.

1. Claim dismissed. The local authority’s decision not to provide out-of-school education was lawful and rational, both when the claim was issued and in light of subsequent developments.
2. Section 19(1) of the Education Act 1996 requires alternative education where, because of illness, exclusion or otherwise, it is not reasonably possible or practicable for the child to take advantage of suitable existing schooling. The local authority must make that assessment. It is not required to accept a parent’s view that the child cannot attend school.
3. The authority had asked the correct question: whether D’s health difficulties made him unable to attend any suitable school, rather than merely whether he could return to the school previously attended. Information about his experience at that school was directly relevant to that assessment. The authority was entitled to consider the breakdown in relations and the competing accounts of D’s presentation, not to apportion blame, but to assess whether he had been able to cope in school.
4. The applicable challenge was on ordinary public-law grounds. The court could intervene only for legal error, failure to consider a mandatory relevant matter, consideration of an irrelevant matter, or irrationality. The authority was entitled to decide the relevance and weight of considerations, subject to rationality, and had regard to the statutory guidance required by section 19(4A).
5. A statutory decision-maker is not legally obliged to defer to an expert’s opinion. The authority was entitled to examine Dr Fry’s expertise concerning educational provision, the information on which his opinion was based, his failure to contact the school, and the school’s contrary evidence. It was rational to prefer the school’s direct evidence that D had generally been settled, sociable and able to participate in school life. The later reports did not compel a different conclusion.
6. The court therefore rejected both grounds of challenge. The claim for a declaration and mandatory order was dismissed.

Not stated in the judgment.