Case overview

This case concerned a child who had experienced repeated bullying. He was later suspended from school for 7 days. After his suspension, he did not go back to school, although his name remained on the school’s roll.

His parent said his son could not attend due to bullying and depression and stress caused by being bullied, and that the local authority (LA) had a duty under section 19 of the Education Act 1996 to provide alternative education for his son. 

Section 19 of the Education Act 1996 says an LA must put in place suitable education arrangements at school or otherwise for children of compulsory school age who, for any reason, will be without suitable education unless these arrangements are put in place for them. The education provided by the LA must be: 

• full-time. It can only ever be part-time if that is in the child's best interests due to their physical or mental health needs, and 
• suitable to the child’s age, ability and aptitude and to any special educational needs they may have. 

The LA said it didn’t have a duty under section 19 as the child had a place at his school and there was no physical reason he could not attend. The parent disagreed with this and applied to the Court of Appeal for permission to judicially review the LA’s decision. 

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.

Children absent from school due to illness or exclusion:

In these cases, the Court said the LA has to arrange suitable education where it is impossible for the child to attend an existing school. 

Children absent from school due to any other reason:

If the reason for the absence is due to any other reason then the LA duty will apply if it is not reasonably possible for a child to take up any existing suitable schooling.

Whether it is reasonably possible for a child to attend their school must be looked at objectively, looking at all the issues. 

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

Therefore, on the facts, the Court decided that the LA had not acted unlawfully. Throughout the time the child 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.  

What does this mean?

If there is no suitable education available that is reasonably practicable for a child, the LA will be in breach of section 19 of the Education Act 1996.

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

If your child is not attending school for  any reason, you can ask for your LA to put in place temporary education.

If your child cannot attend due to a reason other than ill-health or exclusion, your LA must look at all the circumstances when deciding whether:

• there is a suitable education already available, and
• it is reasonably possible for your child to attend it.

Your LA should not refuse to put temporary alternative education in place for children who remain on the school roll as a blanket policy.

When requesting temporary education, you should set out any relevant reasons as to why it is not reasonably possible for your child to attend their registered school. Any evidence you have which shows why it is reasonable to refuse attendance will be helpful. 

If you are not sure, it is really important to get legal advice because LAs can 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. You should speak to a solicitor who is familiar with education law, and don’t forget to check if you qualify for legal aid.

The full case report for G, R (on the application of) v Westminster City Council [2004] EWCA Civ 45 can be accessed online.   

You can find more information about exclusion and children out of school and what your LA should do to help on our website.