R, R (on the application of) v Kent County Council [2007] EWHC 2135 (Admin)

Case No CO/2291/2007[2007] EWHC 2135 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 6th September 2007
Strand
London WC2
B E F O R E:
MR NICHOLAS BLAKE QC
(sitting as a deputy High Court judge)
Between
THE QUEEN ON THE APPLICATION OF RClaimant-v-
Between
KENT COUNTY COUNCILDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Marc Beaumont (instructed by Bennett Wilkins) appeared for ClaimantMr John McKendrick (instructed by Kent County Council) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an application for judicial review by a 14-year-old child, who the Court has ordered to be named as S, made through his father and litigation friend. It concerns a decision of the defendant, Kent County Council, as to what provision for education ought to be made by that County Council for the child in the light of events that I will now recount.[2]In September 2004 S enrolled at his local secondary school the Wildernesse School in Kent, described in a recent Ofsted report "as a small non-selective school for boys aged 11 to 18". His progress there was brought to an end in April 2005, that is some eight months after he enrolled. It seems that S had been called names relating to his racial appearance and had been bullied. Particular incidents related to an occasion on 25th April concerning a boy on the bus taking S to school, which was the subject of a statement by S to the police, to the effect that he had a sandwich thrown at him, causing him anxiety and his uniform being messed up.[3]On 26th April his father met with the headmaster who undertook to take the matter seriously, as did the company providing the transport on the bus. The boy who threw the sandwich was disciplined. He was removed from the ability to travel on the bus, and the bus company undertook to take measures to monitor the behaviour of any child on that bus. That was a prompt and appropriate response to those matters. It seems, however, about the same time another boy who thought that he might have been the subject of a complaint by S, but he was not, also goes went to him on the bus and made threats of a bullying variety, but S, on that occasion, was protected by the intervention of an older boy, who suggested that he sat next to him.[4]Nevertheless, the cumulative effect of those experiences, particularly those incidents on the bus, resulted in S, supported by his family, not wanting to continue at Wildernesse School and he was withdrawn. In their evidence to the Court the head teacher of the school and members of the defendant local authority concerned with attendance and behaviour point out that this is a very short period for a relationship with a school to breakdown on the grounds of concerns about bullying.[5]Thereafter, S attended a private school, paid for by his family; he was taken off the school roll of the Wildernesse School and he received his education elsewhere from mid-May 2005. After a year at that school, that placement broke down because S was withdrawn from the school. It seems that he was the victim of a quite serious bullying assault by a pupil at that school, causing S understandable concern.[6]So since May 2006 S has not been attending school. He has been home educated on a computer programme and both educational experts who have given their opinions in statements to the Court, agreed that that is undesirable, and he should enjoy the benefits of a mainstream education where S could socialise with other pupils of his peer group. Those sentiments are obviously common sense, but equally ones that the Court emphasises and would concur with.[7]Having had the private school placement, there was then discussions with Kent as to what education at public expense should be provided for him by the Kent County Council, the defendant authority. The defendants took, and still take the view that despite his experiences at the Wildernesse School, despite the fact that he has clearly been a child who is fearful of the threat of future bullying at that school, and despite the difficulties that occurred in the relationship between the head teacher and the father when the matter summarily came to an end shortly after the problems being investigated by the school, that that school is the available local school. It is a suitable school. It is an appropriate school.[8]The local authority further points out that if S's concerns are such that he does not want to go to his local school, then there is available to him the next best option, which is the nearest alternative school to him, which unfortunately is some distance away and would require a journey by public transport, bus and train, which is in the order of 1 hour and 17 minutes, although that has been pointed out that journey may be vary and that may be the best time and it could be significantly longer if there are transport breakdowns. Clearly the shorter a journey a child makes to school the better, and lengthy journeys are less desirable than short journeys. But nevertheless it is to be noted that the general policy of this local authority with respect to school transport is that school pupils in Kent can reasonably be expected to travel unaccompanied for journeys of up to one-and-a-quarter hours, but that may vary depending upon age and circumstances.[9]The local authority submit that primarily the original school, the Wildernesse School, remains available for S and he can be reintroduced there with the assistance of their educational welfare officers, who have visited S in May 2005 and have spoken to him about his concerns and would assist in reintroduction. The school does have action plans for bullying. It has been commended by Ofsted for its performance in that respect, and so it is a school which is not indifferent to the problems that arise in secondary schools with young people of 14. Sadly bullying, name calling, violence and threats of violence can never be entirely eliminated from the daily events in a young person's life, although all persons, pupils, schools and the local authority are undoubtedly concerned to do their best to respond to issues and to protect children from future harm. Those were the relevant factual circumstances at the time that the local authority reaffirmed its decision in May 2007, pursuant to the threat of legal action brought by the claimant.[10]A lengthy decision letter was set out in response to that claim, which explains the defendant's view that the withdrawal of S from Wildernesse School in 2005 was not reasonable and that the education offered at that school was suitable and it was essentially available to S within the meaning of the jurisprudence on this area summarised in the case of G v Westminster City Council [2004] EWCA Civ 45, reported [2004] ELR 135, to which I will turn in one moment.[11]For the Claimant, Mr Beaumont's submits that that decision letter did not use the terms "reasonably practicable" which is the term that is used in G v Westminster City Council. But having regard to the reference to that case in the letter and the overall context of the issues addressed in that letter, I do not regard that as a misdirection that vitiates this authority's decision.[12]The matter proceeded for permission to seek judicial review. It was originally refused upon the papers with the observation by the learned judge, Walker J, that the withdrawal from the school appeared to be premature. The application was renewed and permission was granted in May 2007 by Langstaff J, with permission to file certain further evidence by a certain date.[13]One of the points that had been made by the local authority in its decision letter was that there was no medical evidence supporting S's case that he was unable to return to the Wildernesse School. One of the pieces of evidence that is now relied upon strongly in the claimant's case is a report from an educational psychologist, Miss Frodsham, dated 25th July 2007. She was asked at this time to interview S about the effects of the bullying attacks at Wildernesse School upon him. She administered a self-assessment test. She concluded that S was certainly unwilling to return to Wildernesse School and she concluded in strong words that it would be psychologically detrimental to S, given his elevated anxiety and low self- esteem to return there:
"Regarding [S's] low self esteem, a return to Wildernesse would I am certain prompt a downward spiral, which in my view could lead to serious depression. Having lost trust in the staff, being returned there would do nothing for his sense of self value."
She however emphasises:
"It is crucial to re-integrate [S] into another school which can meet his needs and has a bullying policy in place."
(emphasis supplied) I am satisfied on the evidence that Wildernesse School has a bullying policy in place and is willing to provide the re-integration package that would be appropriate in a sensitive case of this sort. But there is undoubtedly the fact that S has expressed the view of his reluctance and marked reluctance to return to that school, because of his experiences and has anxieties that arose as a result of his experiences there.[14]It is necessary however to note that this was a somewhat focused report, brought into being for this bundle in this litigation. It does not take any account of the fact that S also had a more recent bullying experience at another school, in 2006, and therefore questions of the causal nexus between S's present state of anxiety and what happened at Wildernesse in 2005 must remain the basis for some conjecture and debate. The local authority do not accept that returning S to Wildernessee School will cause him illness in the future, and they rely upon the comments of their own educational welfare officer and senior specialist psychologist dealing with vulnerable children, Miss Lucille Galli-Phillips, who has made two statements, the second of which comments upon the report of the claimant's psychologist, Miss Frodsham.[15]The state of the evidence on the primary question of the suitability of Wildernessee School for S, is this broadly summarised. There are statements from the head of the educational welfare department at Kent County Council and from the head teacher, whose effect I have broadly summarised.[16]How then does the claimant put his submissions? Here section 19(1) of the Education Act 1996 is central to the case. That imposes a duty on a local education authority to make arrangements for the provision of suitable education at a 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.[17]Mr Beaumont submits that that is a duty, and he is plainly right in making that submission. The question is: is that duty breached in this case by the local authority's response to S's predicament is offering him Wildernessee School or, if that is unacceptable to him personally, the next best alternative being the school 1 hour and 17 minutes away? There are other schools, secondary schools, a little longer distance, although the personal characteristics of the school 1 hour and 17 minutes away is not in issue so that focuses sufficiently the question.[18]When he outlined his submissions, Mr Beaumont suggested that as a result of those passages that I have read from Miss Frodsham's report, S could not attend the school by reason of illness although that was not the basis for his seeking permission in his claim form, nor the basis of the way he put his case in his skeleton argument. Further, that submission would confront the very high test for illness that the Court of Appeal considered in the Westminster case, to which I have made reference. In respect of illness or exclusion, the Court talked in terms of "impossibility" of attending the school and even the evidence of Miss Frodsham taken at its highest would not in my judgment go that far.[19]The real issue in this case is that which was the basis of the permission and the original skeleton argument, which is whether S may not receive suitable education by reason of the "otherwise" limb of the test. The way that Mr Beaumont formulated his submission to the Court today was that, given the risk of mental health deterioration to S that Miss Frodsham's opinion suggests, the "otherwise" limb is engaged, applying the test that was approved by the Court of Appeal in G v Westminster. At paragraph 42 of that decision, the Court said this:
"'Illness', which is one of the specified reasons, is likely, if it prevents a child from attending a particular school, to prevent that child from attending any school. In such a situation, section 19 requires the local education authority to arrange for the provision of suitable education 'otherwise than at school'. 'Exclusion' prevents a child from attending a particular school. In that situation, section 19 requires the authority to make provision for suitable alternative education, 'at school or otherwise than at school'. In the case of both 'illness' and 'exclusion' the authority has to arrange for the provision of suitable education where it is impossible for the child to attend an existing school. It seems to us that 'otherwise', where used for the second time in section 19, is intended to cover any other situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. This conclusion is supported by the 'eiusdem generis' canon of construction, which is no more than an approach which gives a word the natural meaning that it bears having regard to its context."
[20]So there the Court of Appeal indicate that the "or otherwise" limb of reasons why it is not possible for a child to receive public education should be construed in broadly the like manner as the tests for illness and exclusion, where impossibility is the test, but otherwise is modified by the adjective "reasonably possible". Elsewhere the test is expressed as "reasonably practicable". But the eiusdem generisrule gives an indication of the high test that has to be met. It is apparent from G itself that the question is not whether the parents or S himself have reasonable objections to attending the school, the focus of the court's attention is not upon the parental objections or the child's objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question. At paragraph 46 the Court said this:
"If there is no suitable education available that is reasonably practicable for the child, the authority will be in breach of section 19. If suitable education has been made available which is reasonably practicable, but for one reason or another the child is not taking advantage of it, the local authority may well be in breach of duty in failing to exercise its powers to ensure that the child receives that education. It will not, however, be in breach of section 19."
I stress those words "but for one reason or another the child is not taking advantage of it".[21]In my judgment, those passages indicate that the focus of the section 19 duty is concerned with whether educational provision offered by the local authority is available, is possible and is accessible to the child, although the test is one of reasonable practicable as opposed to absolute impossibility. Nevertheless that is an objective and strict test.[22]The problem then occurs as to who is to decide whether the provisions offered are practicable or reasonable. In my judgment, it is clear that questions as to what is suitable education are primarily for the local education authority, though subject to supervision by the court. Equally, one would imagine that what is reasonably practicable should in the first instance at least be grappled with by the education authority, again subject to the supervision by the court. In the case of G, the Court appeared to decide the issue of 'reasonable practicability' for itself. It may well be, however, that there is not much difference in this particular branch 'between the local authority or the court's assessment' of what is practicable because something is either available, objectively speaking, or it is not. In my judgment, the educational provision at Wildernessee School is practicable, in the sense that it is available for S to return there, if he were willing to do so, with the support that is presently offered by way of re-integration. The question of whether it is reasonably practicable is therefore the issue in the case.[23]The subsequent decision of C v London Borough of Brent [2006] EWCA Civ 728, I understand unreported, may provide some further support for the proposition that it is for the local education authority to decide what is reasonably practicable in the first instance. I draw some assistance from paragraph 45 of the judgment of Smith LJ, who said:
"I have considerable sympathy with the point of view of C and her parents. They see things differently from the way in which they are seen by the defendant. They may even be right, but that is not the point. The defendant is entitled, indeed bound, to form its own view of what is suitable education for C after her exclusion. In doing so it must of course pay attention to C's views and those of her parents, but in the end it is for the defendant to form a professional judgment. If that judgment and the action taken in pursuance of it is sensible and rational and takes into account C's personal needs, it cannot be impugned by the judicial review simply because C and her parents profoundly disagree with it."
In paragraph 52 Laws LJ added some short concurring comments and said this:
"It is, I think, of the first importance to recognise that the decisions falling to be made as to the provision of educational facilities for C after she had been excluded were quintessentially for the local education authority to make."
[24]Both C v Brent and G v Westminster were cases of children who had suffered or claimed to be suffering bullying, although in both cases they themselves had used violence and hence the reference to exclusion.[25]The Court will undoubtedly review with close scrutiny the assessment of the local authority, having regard to the fact that there must be educational provision available for a child which is both accessible and reasonably accessible in all the circumstances. But those terms must reflect the strict test, verging upon but not quite the same as impossibility, which is the test that was used and adopted in the other two limbs, medical illness and exclusion.[26]One has the greatest sympathy in this case with S and his father, concerned to protect and promote his interests, because bullying is always a distressing experience for a young child, setting off in educational curriculum in secondary school. But it must be recognised, living in the real world, that these risks can never be entirely eliminated, even when every school and every education authority does its best. To some extent, dealing with them, coping with the ordinary rough and tumble of school life is part of the growing up and educational experience. As I indicated, everyone who has assessed S thinks he needs to go to an ordinary school to interact with boys and girls of his own age.[27]It is in those circumstances that I conclude that the primary attack based upon the education authority's decision in this case is not made out. In my judgment the education authority were entitled to conclude that Wildernessee School was available and reasonably practicable for S to attend. They were entitled to maintain that view, notwithstanding the report of the claimant's educational psychologist. They were not bound to accept all its conclusions and they have made observations as to the weight that they would attach to it, having regard to when it was obtained, the circumstances it was obtained, the quantity of supporting material explaining its reasoning that has been lodged with the Court, and the contrary views of their own educational psychologist. Strong as the views of Miss Frodsham are, this Court is unable to conclude that in maintaining the view to which they do that the education authority has gone beyond the bounds of reasonableness which would enable this Court to intervene in what is a fact-sensitive question of judgment, by educational professionals who have skills in this area and experience of the difficulties that vulnerable and sensitive children may have in getting on at school.[28]Mr Beaumont complained that the decision letter was not formulated by an educational welfare officer. But I have no doubt that the defendant is able to and did call upon the skills of all its professionals who had been associated with the family in 2005, and who were having to reassess the question in 2007, admittedly without the benefit of a further meeting with S. Such a meeting could only take place if there had been continued co-operation and consensus between the claimant and the defendant. Sadly, as so often, litigation may have had a chilling effect upon practical arrangements to continue that.[29]But since on any view it is the claimant's case that the defendant County Council owes the duty to secure educational provision is available to S, it really does behove the claimant to ensure that all reasonable opportunities and suggestions are pursued before the court is moved that the defendant County Council are in breach of that duty. Prematurity, either in removing a child from school without exploring all the options, or in instituting litigation on the basis of a breach of duty without all the options having been pursued to a reasonably full extent, may indeed be counterproductive. What is surely wholly counterproductive is the fact that S is not in school and he is not, at this important age, getting the benefit of mainstream education and development with his peers. However strongly S or his family think about that, I hope that the result of this judgment will not be to impede future co-operation between the claimant and the defendant to see what practical measures can be done to promote his welfare, which is the primary issue that all parties should be focused upon.[30]Further, the alternative provision that the defendants would rely upon to demonstrate that there is no breach of their section 19 duty would be for them to point to the alternative school which involved some travel. That does seem to be very much a second best alternative, given the obvious problems that excessive travel may have upon the young mind. But the travel estimate is only two minutes beyond what they would normally consider to be reasonable for pupils, and the local authority do not promote that as their best solution or their first solution, but only as an alternative solution if S's experiences are such that he is wholly unwilling to explore readmission and reintegration into Wildernessee School. As such, it does not seem to me to be capable of the submission that it was a wholly irrational proposal, which is what Mr Beaumont submitted to the court. He submitted that, given the anxious times in which we live and the notorious cases of violence, abduction, or killings, or injury to children in certain terrible criminal cases that have come to public attention, then no parent could permit and no reasonable local authority could possibly suggest that it us a rational solution to an educational need for a 14 year old child to travel unaccompanied for an-hour-and-a-quarter plus to school. I reject that bold submission made, it seems to me, without any supporting material evidential or otherwise, and inconsistent no doubt with the daily experiences of many young people who travel some distance in rural areas to get their secondary education. That of course is not to diminish the fact that any extensive travel is a second best option, nor to diminish the fact that S's own experiences which led him to be anxious about Wildernessee School were during, in particular, travel to school. However the defendant pointes out that travel on public transport, with members of the public being able to supervise or observe what is going on, may be somewhat different from a "pupils only" bus in which tensions and squabbles in the classroom may spill over to misbehaviour on the bus. In this particular case, for reasons I have already given, the Court is impressed with the prompt action that the school and the bus company took to deal with it.[31]Mr Beaumont having set his alternative case so high, on the basis that any unaccompanied travel of that duration is irrational, then the further question of whether the school can make practical arrangements to facilitate travel seems to me to be very much a secondary question. It is a new question previously unconsidered that would now require a de novo determination if the alternative school provision were to be adopted. Certainly, there is in place the powers, and indeed the duty, on the local authority to pay for any travel to school over 3 miles, where it is "necessary" to do so. Whether it is necessary in the individual circumstances of this case is not a question to which minds have been addressed, because it has never been the basis of an application and submission. There is certainly room for that issue to be canvassed by representations and interview with S, and assessment by the local authority if that came to it. If indeed the local authority's own educational psychologist began to share the opinion of Miss Frodsham having interviewed S, that would no doubt be a highly material matter and the views of S of course must be fully taken into account, although for reasons I have given they cannot drive the definition of the duty.[32]For those reasons, the Court has carefully considered the submissions made by the claimant, but cannot conclude that the local authority has acted in breach of its legal duty and therefore dismisses this application for judicial review.[33]Are there any other application?[34]MR McKENRICK: My Lord, no.[35]THE DEPUTY JUDGE: Thank you very much.[36]MR BEAUMONT: My Lord, could I have a moment please? (Pause) My instructing solicitor reminds me that in relation to costs, although my learned friend has not said anything yet, I must not forget to apply for a public funding detailed assessment.[37]THE DEPUTY JUDGE: You can have public funding -- the full CLS assessment, yes. Thank you very much.

Cited in 4 later judgments