LVN, R (on the application of) v London Borough of Southwark

Under the Education Act 1996, section 19 requires a local authority to arrange suitable education that is reasonably practicable for the child. The question is objective and fact-sensitive. A child’s refusal or a parent’s unreasonable objection does not itself make an available placement impracticable. The authority need offer one reasonably practicable suitable option, not the preferred option. Under section 42 of the Children and Families Act 2014, naming an education provider does not discharge the authority’s continuing duty to secure the specified provision if the provider fails to deliver it. A judicial-review claim becomes academic when relief no longer affects the parties’ rights and obligations. Article 2 of the First Protocol to the ECHR requires more than any domestic-law breach and is assessed pragmatically in context. All grounds and the damages claim failed.

The claimant, a 16-year-old child with special educational needs, challenged the local authority’s alleged failure to provide education. Her EHCP named Evolve Academy. Following difficulties at the West Norwood site, she was not permitted to return there, declined education at the Kennington site because of safety concerns, and did not accept alternative tuition. She sought declarations under sections 19 and 42 and Article 2 of the First Protocol to the ECHR, together with damages under Article 2. By the hearing, she had completed Year 11, ceased to be of compulsory school age, and became subject to a revised EHCP. The central issues were whether the claims had become academic, whether the education offered was reasonably practicable and sufficient, and whether the threshold for a denial of the right to education had been reached.

Outcome. The judicial-review claim and the claim for damages were dismissed on all grounds.

1. Grounds 1 and 2 had become academic. The section 19 duty ended when the claimant ceased to be of compulsory school age on 26 June 2026. The revised EHCP governed her future education, and no continuing issue affected the parties’ rights and obligations. The court would therefore have refused declaratory relief even if the claims had not been academic.
2. On the merits, the section 19 test was objective and fact-sensitive. It required consideration of the whole picture, including whether the offered education was available, possible and accessible. The authority only needed to offer one suitable and reasonably practicable option. The preferred West Norwood placement was not decisive. The evidence did not identify a specific risk at Kennington. The historic incident, police advice, risk assessments and the claimant’s concerns had been considered. The claimant’s decision not to attend did not make the authority liable. The court would have reached the same conclusion both on close scrutiny of the authority’s decision and on a fresh assessment.
3. Section 42 of the Children and Families Act 2014 required the authority to secure the specified provision. Naming Evolve Academy engaged the academy’s separate duty under section 43 but did not discharge the authority’s continuing obligation if the provider failed to provide the education. On the facts, however, the Kennington offer was reasonably practicable. The interim education offered between January and February was also sufficient, consistently with R(BA) Nottinghamshire County Council [2021] EWHC 1348 (Admin).
4. Article 2 of the First Protocol to the ECHR was not breached. Not every breach of domestic education law amounts to a denial of the right to education. The threshold is assessed pragmatically and in the round, having regard to matters including age, educational history, duration of absence and alternative provision. The authority had made continuing efforts to provide education and its attempts were not so ineffectual as to reach the threshold. The court also disposed of the damages claim in the High Court. No relief was sought against the interested party.

Permission had previously been granted at a renewed permission hearing because the academicity issue was arguable. No lower-court judgment or appeal is stated; this was a first-instance judicial review.