KGH, R (on the application of) v North Tyneside Council

Under section 19 of the Education Act 1996, a local authority must arrange suitable education only where a child may otherwise receive no suitable education. Where suitable education is available at an existing school and it is reasonably practicable for the child to access it, the duty is not engaged merely because the child is absent or the parents object. Exceptional circumstances may make attendance unreasonable. The authority must form its own sensible and rational view, taking account of the child’s needs. Judicial review permission requires an arguable ground with a realistic prospect of success. Amendments introducing materially different grounds after issue may be refused where they lack merit, were not before the decision-maker, or would evade procedural requirements. Mandatory interim relief requires a strong prima facie case and an appropriate balance of convenience.

The claimant, the father of HLF, sought permission to challenge North Tyneside Council’s decision of 28 April 2026 to stop preparatory arrangements for possible education otherwise than at school under section 19 of the Education Act 1996. He also sought interim relief reinstating that provision.

The claimant applied to amend the claim to challenge an 18 May 2026 panel decision and to add allegations of irrationality, unlawful delegation, failure to inquire, procedural impropriety and reliance on an altered school policy. The Council maintained that no section 19 duty had arisen because suitable education remained available at the school and was accessible to HLF. The central issues were whether the amendments should be permitted, whether the original or proposed grounds had a realistic prospect of success, and whether interim relief could be granted.

Disposition. Permission to amend was refused. Permission to proceed on the existing grounds was refused. The application for interim relief was dismissed. Consideration of the final order, costs and permission to appeal was adjourned.

1. Amendments. An amendment must contain sufficient detail to make the case intelligible and disclose reasonable grounds. The court may reject implausible, self-contradictory or inadequately supported pleadings. The discretion to permit amendments after issue includes preventing materially new grounds from evading time limits or the pre-action process. The principles in Amersi v Leslie [2023] EWHC 1368 (KB) were applied. Proposed Grounds 1, 3 and 4 had no real prospect of success. Ground 2 raised materially different matters which had not been before the section 19 panel and was refused on case-management grounds.
2. Section 19. The court applied the construction of section 19 explained in R(G) v Westminster City Council [2004] EWCA Civ 45; [2004] 1 WLR 1113. Where suitable education is available and reasonably practicable for the child to access, the statutory duty is not engaged merely because the child is not attending. The authority must form its own rational view of suitability, taking account of the child’s needs, as recognised in R (S) v Kent CC [2006] EWCA Civ 728 and R (C) v Brent LBC [2007] EWHC 2135 (Admin). The court also endorsed the principle that, once the threshold is crossed, the duty is substantive and non-delegable, although that issue did not arise on the facts.
3. Application. The 28 April decision merely ended precautionary arrangements while the Council checked whether a section 19 duty might arise. It was not a decision withdrawing an existing statutory entitlement, and no section 19 duty had previously been engaged. The Council’s panel, rather than the school’s headteacher, made the statutory assessment. The panel’s conclusions on suitability and accessibility were rational. The Tameside duty required reasonable steps to obtain relevant information, but did not require investigation of matters not raised as reasons for alternative education or a forensic audit of school policies. There was no evidence that the amended policy document had been supplied to or relied upon by the panel.
4. Interim relief. The court stated the American Cyanamid Company v Ethicon Limited [1975] AC 396 approach, refined by the requirement for a strong prima facie case where mandatory relief is sought against a public body, as stated in De Falco v Crawley Borough Council [1980] QB 460 and R (RRR Manufacturing Pty Ltd) v British Standards Institution [2024] EWCA Civ 580. As permission was refused, there was no basis for interim relief.

First instance. The judgment records an earlier order dated 17 June 2026 made by Mr Tom Little KC, sitting as a deputy High Court judge, and a hearing before HH Judge Davis-White KC on 24 July 2026. No appellate decision is stated.