Case overview

In this case the child’s parents withdrew him from school (the First School), around 8 months after he started, because he had been bullied. His parents then paid for him to attend an independent school. After a year there, they withdrew him following a serious bullying assault.

When the child’s parents asked the local authority (LA) what education it would provide, the LA said the First School remained suitable for him and he could attend it with support from educational welfare officers who he knew. The school had bullying action plans in place and had been praised by Ofsted for its performance regarding this too.

Alternatively, if because of his experiences, the child was “wholly unwilling to explore readmission” to the First School, the LA said he could go to a school an hour and 17 minutes away from home.

His parents disagreed with these options, brought a judicial review claim against the LA and got an educational psychology assessment to provide evidence for it. The psychologist’s report said returning to the First School would be detrimental to the child’s self-esteem and “could lead to serious depression”.

The LA’s educational welfare officer and senior specialist psychologist dealing with vulnerable children said otherwise and the LA continued to offer the above options.

All the professionals who assessed the child thought he needed to be educated in school to interact with other children.

The judge noted that the report the parents obtained did not take into account that the child had been bullied at a different school since leaving the First School, so it was debatable that his anxiety at the time of the claim was due to what happened at the First School.

In this particular case, the judge decided that it was reasonably possible for the child to go to the First School or, failing that, to the further away school. So, the LA had not acted unlawfully.

What does this mean?

LAs have to arrange suitable, full-time education for compulsory school age children who would not otherwise receive it because of illness, exclusion or “otherwise” (section 19 Education Act 1996).

Earlier case law clarified that when the reason a child is out of school is not illness or exclusion, the LA’s duty to arrange education applies when it is not reasonably possible or practicable for the child to take advantage of any existing suitable schooling.

This case reiterates that this is not about whether the child or their parents have a reasonable objection to the child attending a particular school/s but whether, objectively, the education offered by the LA is “is available, is possible and is accessible to the child.”

The judge in this case emphasised the importance of parents pursing “all reasonable opportunities and suggestions” before the court would declare an LA to have breached this duty. They said that prematurity, either in removing a child from school without exploring all the options, or starting a judicial review claim without all the options having been pursued to a reasonably full extent, may be counterproductive.

The full case report for R (R) v Kent County Council [2007] EWHC 2135 ELR 648 can be viewed online.

For more information see other case summaries on this duty and our pages on children out of school and asking the LA to arrange alternative education.