This case concerned a child (“G”) who did not return to their school, St George’s (“the School”), after a 7-day exclusion. Before the exclusion, G experienced repeated incidents of bullying. G remained on the school’s roll in his absence. 

G’s parent felt G could not attend due to the bullying / depression and stress caused by being bullied at the School, and that Westminster City Council (“the LA”) had a duty under section 19 Education Act 1996 (“Section 19”) to provide alternative education for G. 

Section 19 states that: 

Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (section 19(1)) 

“Suitable education…means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have” (section 19(6)) 

The LA decided it didn’t have a duty under Section 19 as G had a place at the school and there was no physical reason he could not attend.  G’s parent took legal action called judicial review to challenge the LAs decision. 

When does the duty under Section 19 arise? 

The Court of Appeal said when a child is not receiving suitable education the whole picture needs to be looked at, to decide if this is due to any breach of duty by the LA. 

It said: 

“If there is no suitable education available that is reasonably practicable for the child, the authority will be in breach of section 19.” 

But if suitable educational is available which the child could reasonably use but isn’t, the LA won’t have to provide an alternative. In fact, unless the parent is home educating, LAs could take action against them for not making sure their child goes to school.

In the case of both ‘illness’ and ‘exclusion’ the LA has to arrange suitable education where it is impossible for the child to attend an existing school. 

In this case, the Court of Appeal decided that the “otherwise” reason in Section 19 is intended to cover any other situation where it is not “reasonably possible” for a child to take up any existing suitable schooling (see paragraph 42).

If a parent acts reasonably in refusing to allow their child to attend school, the LA may need to provide alternative education under Section 19 even when a child remains on the roll and can physically attend the school.

When might it not be reasonably possible for a child to attend?

The Court said, this must be looked at objectively, looking at all the issues. 

In this case, the Court held G’s parent had acted unreasonably because he didn’t send G back to school after his exclusion and, at a meeting with the School shortly afterwards, he didn’t consider what the School had to propose or discuss G’s needs and let the School to try to meet his needs: Instead, G’s parent said that he was removing G from the School. 

The Court said there may be exceptional situations where it is unreasonable to expect a child to attend a suitable school (and there is no physical reason to prevent attendance). For example, if a child experiences persistent bullying and the school is unable to stop it, it may be reasonable for the parent to refuse attendance. In such situations, the LA would come under a duty under Section 19 to make alternative arrangements but the evidence didn’t show this applied in G’s case. 

For G, the Court decided the LA had not acted unlawfully because throughout the time he was out of education there was a suitable school which he could have gone to and his parent had acted unreasonably by refusing to let him. 

The full case report can be accessed here.

Implications of the decision  

LAs should not refuse to put temporary alternative education in place for children who remain on the school roll as a blanket policy. All the circumstances should be looked at. 

If a child remains on the school’s roll and the school is suitable for their age, ability, aptitude and any special educational needs, a LA may still have to arrange suitable, full-time alternative education if it is not reasonably possible for the child to attend school. 

Parents in this situation will need to show why it is not reasonably possible for their child to attend the registered school. Evidence to demonstrate why it’s to refuse attendance will be helpful when requesting temporary education. 

It can be difficult to decide if, in the eyes of the law, it’s reasonable to expect a child to attend their school or not. It will depend on the exact circumstances and evidence of each case. 

If a parent is unsure, it’s really important they take legal advice because LAs’ have powers to take action against parents of compulsory school age children if they are on the roll of a school that they could attend but are not.