HR, R (on the application of) v Medway Council [2010] EWHC 731 (Admin)

Case No CO/1746/2010[2010] EWHC 731 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 st April 2010
Before
Miss Geraldine Andrews Q.C.(sitting as a judge of the High Court)
Between
R on the application of HRClaimantMEDWAY COUNCILDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Ian Wise QC and Stephen Broach (instructed by John Ford Solicitors) for ClaimantDavid Lawson (instructed by Medway Council Legal Services) for DefendantHearing Hearing date: 30 th March 2010
JudgmentMiss Geraldine Andrews QC:
[1]This matter comes before the Court as an expedited "rolled-up" application for permission to bring judicial review and, if permission is granted, to claim judicial review. The Claimant, HR, is a 14-year old girl with Autistic Spectrum Disorder (more commonly known as Asperger Syndrome) and related mental health problems including a severe anxiety disorder. These were only diagnosed comparatively recently. The Defendant is the unitary authority for the part of Kent where H and her family live, and is responsible for education and social services under the Children's Services Directorate.

The factual background

[2]In January 2008, H was placed under the care of the CAST Team due to feelings of general anxiety. In October 2008 they made an initial referral to the child and Adolescent Health Service (CAMHS) due to concerns with her self-harming, suicidal thoughts and low moods. She was initially prescribed anti-psychotic medication, but this ceased after 2-3 weeks as there were no ongoing symptoms of psychosis, and she was prescribed anti-depressive medication by her GP. Sadly her mental state failed to improve with community management. Her original secondary school placement at a Grammar school broke down after a fellow pupil overheard her threatening to kill herself. H did make two attempts on her own life at around that time, and on 5th November 2008 following the second of these attempts she was admitted to an Adolescent Unit of the local hospital where she received psychiatric care. There have been no further episodes of self-harming since her discharge as an inpatient on 17th December 2008. CAMHS has continued to monitor her and to offer medical and therapeutic support to her and her family.[3]H exhibits challenging behaviour which is linked to her condition, and has complex needs which require her to be treated with considerable sensitivity. Asperger Syndrome is a form of autism, but unlike those with "classic" autism, those who suffer from it are often high functioning individuals. They have particular difficulty in communication and interaction with others and in the area of social imagination, which can lead to high levels of anxiety and confusion. A package of measures to give H the help and support that she needs has been put together by the Defendant under the overall responsibility of Juliet Sevior, a former teacher and a qualified educational psychologist with 12 years' experience in that field.[4]There is no complaint about the social care that H is receiving, which includes respite placements with a foster carer, and regular visits from a social worker from the Children's Disability Team. The complaint in this case is that the Defendant is in breach of its duty to provide H with suitable education pursuant to section 19 of the Education Act 1996, read in conjunction with Article 2 of Protocol 1 to the European Convention of Human Rights.[5]H is a high achiever who has the potential, with the correct support, to achieve good academic qualifications. Her cherished ambition is to become a vet. She comes from a loving and supportive family, and I should make it clear at the outset of this judgment that both her parents have always had her best interests in mind, and that that is the paramount consideration driving their objections to the schooling options that she is being offered by the Defendant.[6]Following her discharge from hospital in December 2008 it was decided that it would be wholly inappropriate to return H to mainstream education as it was recognized she would be unable to realise her full academic potential in that environment. Neither party challenges that assessment. H began to attend a hospital special school maintained by the Defendant which I will call "School A". A operates from two sites, a room in a hospital which caters for up to 15 students at a time, and a main site which is larger, and provides mainly for learners with emotional needs. Over 50% of its students have a diagnosis of autism. An unspecified number have Asperger Syndrome and the head teacher told Mr Holme, the Claimant's expert educational psychologist, when he visited the school in February 2010, that as a result of training provided the staff had a good understanding of the condition. The school provides home tuition when learners cannot attend either site. I have seen an Ofsted report following an inspection of School A in July 2009 which is full of praise, with the highest possible score being given to the school for care, guidance and support, and personal development and well-being.[7]H's placement at School A was originally intended to be short-term pending determination of where she should be educated in the longer term. At that time her parents fully supported the decision to place her there. On 18th September 2009 the Defendant made a Statement of Special Educational Needs ("SSEN") in respect of H under section 323 of the Education Act 1996. Part 2 of the SSEN sets out the assessment of H's special educational needs, Part 3 deals with the special educational provision which the Defendant intends to provide to meet those needs, and Part 4 deals with placement. Although a specific educational establishment need not be identified in Part 4 it is quite common for the local education authority to do so, and in this case, Part 4 identified a community special school and named School A.[8]However by the time of the SSEN, H's parents, particularly her mother, had become convinced that School A was unsuitable for H's needs. Mrs R's statements (which I have read with care) paint an unhappy picture of H's time at School A, both before and after the SSEN. By way of example she describes an incident in July 2009 when H initially refused to go to the school and upon arrival ran away from the site, refusing to return, and a teacher had to collect her from the local park. The Defendant's evidence is that on that occasion, once in school H behaved perfectly well, and that the teachers never managed to find out what the trigger was for her initial refusal to go. Mrs R also describes H's difficulties in interacting with her peers and the distress that H suffered in respect of an incident when a fellow pupil self-harmed in the classroom.[9]However, there is also a plethora of contrary evidence adduced by the Defendant which paints the picture of a teenager who was settling in well, including a statement from her social worker, Julie Arnold, in August 2009 in which H was reported as being extremely frightened of any change and saying that she wanted to remain at School A, and a progress report from the Head Teacher, Mrs Rogers, dated 4th February 2010. The logs in the school monitoring notebook for H for the period from September 2009 and 3rd November 2009 appear to be positive, with very few references to worries or anxiety. However, appearances can be deceptive. The nature of H's condition is such that the anxiety can be suppressed and lie under the surface, so that it is only after she returns home from school that her frustration manifests itself in violent outbursts.[10]As for H herself, she has stated that she feels that the teachers at School A do not understand autism or Aspergers sufficiently. She says that they treat her like everyone else when everyone is different and they do not understand her. At her school "there are lots of different types of children and it's really hard being around kids that are constantly feeling down or upset all the time." She also specifically mentions the distress she felt at the incident when a boy in her class started to self-harm in the classroom. On the other hand she liked the fact that the classes were small and she seemed to have developed a good relationship with one of the teachers, the deputy head. It would appear from the evidence, taken in the round, that H's attitude to School A is at best described as ambivalent and at worst as antipathetic. In her latest statement dated 1st March 2010 she says "I don't like going to [School A] and I don't want to go back.... It has been really hard work for me to get to feeling like I can go into a school again and I don't want to have to do it all over again." She also says that she "hates that other people are deciding what is best for me schoolwise when I can tell you."[11]There is another local specialist school, which I shall call School B, which H has visited and which obviously formed a favourable impression on her. It would appear to be more expensive for the Defendant to place H at School B, and that is a legitimate consideration if both schools are suitable. However if a placement at School B is the only means by which the Defendant can satisfy its statutory obligations to H, the cost becomes irrelevant. Both H's parents and the Defendant are agreed that School B is suitable for H. However, the Defendant disagrees with the parents' claims that the provision offered at School A was or is unsuitable for H, and has concerns that School B may be a worse option. The aim of these proceedings is to compel the Defendant to place H at School B (there has been very late mention of another school, School C, but I do not consider that has any bearing on the issues I have to decide).[12]H has been without education since she was withdrawn from School A by her parents on 5th November 2009. This is obviously an extremely undesirable state of affairs and it is having a serious detrimental effect on H. Any bright child, let alone a bright 14 year old with Aspergers, would find the situation incredibly frustrating. Numerous offers of provision have been made to H and her parents or discussed with them, including going back to School A, (either the hospital unit or the main school) home tuition, or tuition at other centres. However H's parents are convinced that H's educational needs will only be served if she goes to School B. They may well turn out to be right about that, but this is not the proper forum in which to make that decision.[13]There is a statutory route for challenge to the SSEN. H's parents have availed themselves of it by appealing the contents of parts 2, 3 and 4 of the SSEN to the First Tier Tribunal (SENDIST). Normally one would anticipate the outcome of such an appeal to be determined within around six months, and in this case a hearing was fixed for 8th March 2010. The hearing is part heard, and will conclude on 4th May. A decision is likely to be made within 2 weeks thereafter. School B's Easter holiday is from 1st to 21st April. This claim is therefore about the relatively short period of school days that will elapse between the start of the new school term, and the outcome of the appeal. However, the fact that an appeal is pending does not relieve the Defendant of its statutory obligation to provide suitable education for H in the interim.[14]The judicial review claim form was issued on 4th February 2010, together with an application for urgent consideration. Two applications made by H to this court for interim relief (in the form of a mandatory order requiring the Defendant to fund a placement for H at School B) have already failed. On 8th February Nicola Davies J. refused H's application for a mandatory order that the Defendant should place her at School B from 8th February but granted the application for urgent consideration. She ordered this "rolled up" hearing and directed that the matter be heard before the end of March. On 5th March 2010, following an oral hearing, Mr Timothy Corner QC, sitting as a judge of this court, dismissed H's renewed application for interim relief and expressed the view that it was unarguable. Nothing daunted, H has gone ahead with the application for permission to bring a claim for judicial review. Whilst I would not take quite the same negative view of the merits as Mr Corner QC, I am nevertheless persuaded that the claim for judicial review must fail, and accordingly that it is inappropriate for me to grant permission.

The Legal and Statutory Framework

[15]Article 2 of the First Protocol to the European Convention of Human Rights, as incorporated into English law through the Human Rights Act 1998 ("A2P1") provides inter alia as follows:
"No person shall be denied the right to education."
In the case of Timishev v Russia (2007) 44 EHRR 37, the European Court of Human Rights held that this was a provision whose structure was similar to that of Articles 2, 3, 4(1) and 7 of the Convention which together enshrine the most fundamental values of the democratic societies making up the Council of Europe. As Lord Bingham made clear in Ali v Headteacher and Governors of Lord Grey School [2006] 2 AC 363, following an illuminating review of the relevant Strasbourg jurisprudence, Article 2 was intended to guarantee fair and non-discriminatory access to the established system of state education by those within the jurisdiction of the respective states. However, he went on to explain that the guarantee is a deliberately weak one:
"There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education by or at a particular institution... The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny a pupil effective access to such educational facilities as the state provides for such pupils?"
[16]In England and Wales, the obligations of Local Education Authorities ("LEA") such as the Defendant with regard to educational provision are set out in the Education Act 1996. Section 19(1) of the Act provides as follows:
"Each local education 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" "
Suitable education" is defined in section 19(6) as "efficient education suitable to [the child or young person's] age, ability and aptitude and to any special educational needs he may have."[17]Section 9 of the Act provides that in exercising or performing all their respective powers and duties under the Education Acts, LEAs shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and the avoidance of unreasonable public expenditure. Thus although the wishes of the parents are a relevant consideration, the parents do not have the entitlement to a final say in where their child is to be educated.[18]Section 19(4A) of the Act provides that in determining what arrangements to make under subsection (1) in the case of any child or young person a local education authority shall have regard to any guidance given from time to time by the Secretary of State. Mr Ian Wise QC, who appeared with Mr Stephen Broach for H, took me to the current statutory guidance for the purpose of demonstrating that it reflects the strong public policy imperative that children should not be out of school. For example, the guidance on exclusion provides that even if a child has been excluded for a fixed period of six school days or longer, the school has a duty to arrange suitable (alternative) full-time educational provision from and including the sixth school day of the exclusion. Mr Wise submitted that the duty of an LEA in respect of a child who has not been excluded but who has been withdrawn from school should be no different.[19]Mr Wise reinforced this submission by reference to s.7 of the Act which imposes a duty on the parents of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have, either by regular attendance at school or otherwise. This obligation can be enforced by the making of school attendance orders under s.437, and, in the case of non-compliance (which is a criminal offence under s.443) the making of an education supervision order under s.447.[20]Thus, submitted Mr Wise, the statutory scheme relating to state education in this country does not anticipate a child being kept out of school for anything like the length of time that has already elapsed in H's case, pending the determination of a dispute between the child's parents and the LEA over the suitability of a chosen educational establishment. Every day of full time education missed is unjustifiable, and although it may now only be a short time until the appropriate school for H's long-term placement is identified, there is good reason for the Court to step in at this juncture.[21]To reinforce that submission Mr Wise referred to the decision of HH Judge McKenna in the case of R (B) v Barnet LBC [2009] EWHC 2842 (Admin). B was a 15-year old disabled girl with learning difficulties and hearing problems. She had been subjected to serious sexual and physical abuse from a young age, which left her at a high risk of sexual abuse or statutory rape. The LEA had issued a SSEN naming a particular mainstream school as suitable to meet B's needs; that decision was the subject of an appeal to SENDIST that was due to be heard on 15th December 2009. However, the SSEN had named the school notwithstanding that its headmaster had stated very clearly that he considered the school to be unsuitable, inter alia because he considered that B's attendance at the school would be a health and safety risk not only for B herself but for other pupils.[22]Notwithstanding the proximity of the tribunal hearing, on 12th November 2009 the judge granted an application for judicial review on the basis that the LEA was in breach of its duties under s.19(1). The court went out of its way to express no view on the suitability or otherwise of the chosen school for B's educational needs, as to do so would abrogate the jurisdiction of the tribunal. However, the judge was highly critical of the LEA. He held that the guidance and care plan fell far below what was required by the Framework Guidance and case law dealing with the duty to assess the needs of vulnerable children. It had not sufficiently addressed what was required under the statutory guidance Safeguarding Children and Young People from Sexual Exploitation 2009. In circumstances where the head teacher had made it clear that in his view the school was not a suitable placement for B, it was not reasonably practicable for her to attend that school, and therefore the LEA was obliged to make alternative provision for her full time education instead of simply providing her with part-time tuition in a local library.[23]That case certainly illustrates that the fact that there is to be a SENDIST hearing in the near future does not necessarily preclude this Court from granting judicial review, although it must be only in an exceptional case that such relief would be appropriate. This is because of the danger that anything said or done by this Court in the exercise of its reviewing function might either trespass upon matters that are for the tribunal to decide (such as the underlying merits) or, at the very least, have an unwarranted impact on the tribunal's decision, such as causing the decision to be postponed. For example, if relief were to be granted in the form of a mandatory order directing the Defendant in the present case to make immediate provision for H in school B, the tribunal is likely to want to see how she gets on at school B before reaching its decision on the appeal. Moreover, the tribunal (or indeed the Defendant) may feel that once H was settled in school B, it would cause unnecessary disruption, or indeed risk serious harm to her health and well-being, to require her to go back to school A. Thus the court's decision might well create a situation in which the Defendant is forced to accede to the parents' wishes regardless of what the tribunal might otherwise have decided on the question of suitability.[24]The facts of R (B) v Barnet appear to me to be exceptional, because it was obvious that the Tribunal in that case was highly unlikely to have reached the conclusion that the SSEN was adequate let alone that the chosen school was suitable. The determination of the LEA to place the child there in the face of the views of the school's headmaster and after having carried out what appears to have been a superficial assessment of the child's needs might well have been described as perverse. That case is very different from the present case.

The proper approach to the resolution of the issue of breach of statutory duty

[25]The key matter that I must consider is whether the Defendant in this case is in breach of its statutory duty under s.19(1) and/or obligations under A2P1. It is only if I conclude that it is, that I then have to consider, in the exercise of my discretion, what (if any) remedy to grant.[26]In my judgment, the duty under A2PI adds nothing of substance to the duty under s.19 of the Act. In the case of C v London Borough of Brent [2006] ELR 435, 2006 EWCA Civ 728, it was conceded by counsel for the claimant that the duty to comply with C's A2P1 right to education added nothing to the defendant's duty under s.19 of the Act. If there was no breach of s.19, there would be no breach of A2P1. Mr Wise accepted that this was the case, but submitted that the role of A2P1 in these proceedings was to heighten the standard of scrutiny by the Court of the way in which the Defendant has gone about discharging its duty under s.19. In the light of that concession, I need not consider further the interesting arguments about cases such as A v Essex County Council [2008] ELR 321 and SP v The United Kingdom, (a decision of the First Chamber of the European Court of Human Rights on the admissibility of a claim for breach of A2P1 dated 17th January 1997). I would merely observe that the approach of the courts in those cases would have posed a formidable obstacle to any self-standing claim in the present case based upon a breach of A2P1.[27]Both Mr Wise and Mr David Lawson, who represented the Defendants, referred me to the well-known passage in the speech of Lord Steyn in R(Daly) v Home Secretary [2001] 2 AC 532 at para 27 on page 547 and to some of the observations made by Lord Bingham in the same case. That of course was a case under Article 8 ECHR, and the discussion was in the context of the application of the principle of proportionality in respect of a review where the ECHR rights at stake were of a nature that allows for qualified and proportionate interference by the State. Whilst I accept that the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, rather than simply whether it is within the range of reasonable or rational decisions, or require attention to be directed to the relative weight accorded to different interests and considerations, it does not go so far as to transform the function of this Court from a court of review into a court that decides the underlying merits, or anything close to it. In any event, in a situation such as the present, where an unqualified fundamental right is concerned, there is no question of interference being proportionate: either the right is being infringed or it is not.[28]As Munby J. rightly observed in another case involving Article 8, CF v Secretary of State for the Home Department [2004] 2 FLR 517, [2004] EWHC 111 (Fam):
"The court's function in this type of dispute is essentially one of review – review of the Secretary of State's decision – rather than one of primary judicial decision-making. It is not the function of the court itself to come to a decision on the merits... A case which properly analysed is a public law case is not transformed into something different merely because European Convention rights are relied upon."
[29]In a later passage of his judgment at paragraph 30, the judge went on to reject a submission, similar to the submission made by Mr Wise in the present case, that the intensity of the review demanded in an Article 8 case involving consideration of a decision as to what was in a child's best interests was but "a whisker away from a merits review". He said that he must subject the decision to "intense and anxious scrutiny on an objective basis" whilst at the same time recognising and allowing the Secretary of State a significant margin of discretion.[30]Of course the complaint in the present case is of a continuing breach of statutory duty. There are two Court of Appeal authorities offering guidance as to the proper approach to be taken in the specific context of a review of the discharge by an LEA of its statutory duty under s.19(1) of the Education Act. The first in time is R(G) v Westminster City Council [2004] 1 WLR 1113 [2004] EWCA Civ 45; the second is the case of C v London Borough of Brent which I have mentioned in paragraph 26 above. I have also been referred to the very helpful decision of Mr Nicholas Blake QC (sitting as a judge of this court) in R(R) v Kent County Council [2006] EWHC 2135, [2007] ELR 648, in which both those authorities were considered.[31]In R(G) v Westminster City Council the child had been excluded from school for seven days following the latest in a series of fights. G's father claimed that G had experienced repeated incidents of bullying at the school. Efforts were made to find him a place at an alternative school but without success. When it became apparent that there was no alternative school available, G's father withdrew him and began proceedings for judicial review. The Court of Appeal decided that his behaviour was unreasonable, but later authorities have made it clear that the reasonableness or otherwise of a parent's behaviour in withdrawing the child from school is not a necessary consideration when the issue is whether the LEA is in breach of its duty under s.19. It may be of some relevance in determining, as in the G case, whether the duty was engaged in the first place.[32]The Court of Appeal then considered the ambit of the duty imposed on the council by s.19. The conclusions are expressed in paragraphs 42 to 48 of the judgment of the Court, which was delivered by Lord Phillips MR. He said that if the LEA has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, it would not seem logical that the authority should be under a duty to provide alternative suitable education simply because, for one reason or another, the child is not taking advantage of the existing facility.[33]Thus where the section refers to a child who "by reason of illness, exclusion or otherwise" may not for any period receive suitable education unless such arrangements are made for them, the word "otherwise" 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. In other words, the duty under s.19 does not even arise if it is reasonably practicable for the child to attend a suitable school in which a place has been found for him or her by the LEA, but the child has developed an antipathy towards the school and refuses to go there. The same is true if the reason why the child is not attending school is that the child's parents (with or without the support of an expert) genuinely believe that the chosen school is not best suited to his or her needs and that there is another in the area that is more suitable. Where, as in the present case, there has been a SSEN the parents can challenge the LEA's assessment of suitability through the statutory appeal system but, as Lord Phillips put it, "if the LEA makes available a school that does not please the parents, it is for the parents to arrange for alternative suitable education."[34]Lord Phillips went on to say in paragraph 48 that it is possible to envisage exceptional situations where, although a school satisfies the criteria in s.19(6), and there is no physical impediment to the child attending that school, it is none the less not reasonable to expect the child to attend the school. He gives the graphic example of a case where three other children in the school were facing criminal charges, which they denied, of sexually assaulting that child. In such a case it might not be reasonably practicable for the child to continue to attend the school, and the LEA would then come under a duty under s.19 to make alternative arrangements. In R(G) v Westminster the Court decided the question of reasonable practicability for itself and concluded that it was reasonably practicable for G to attend the school. The claim for judicial review therefore failed.[35]In C v London Borough of Brent the case was again one in which there was a difference of opinion between the LEA and the parents of the child as to what was suitable education for C after she had been excluded from school for violent behaviour. The parents did not dispute that the Pupil Referral Unit to which the LEA wished to send C was a good unit and suitable for most pupils who had been excluded for violent or disruptive behaviour, but contended that for various reasons it was unsuitable for C. Smith LJ considered the case of R (G) v Westminster in paragraph 39 of her judgment. After quoting from what Lord Phillips had said in paragraphs 46-48, she said that the focus of paragraph 48 was not on whether the parents' view according to their understanding of the facts is reasonable but rather on whether it is objectively unreasonable to expect the child to attend the school in question.[36]When considering the question whether the LEA in that case had provided "suitable" education for C, Smith LJ said this:
"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 his short concurring judgment Laws LJ, a

judge with particular expertise in the public law field, added this observation:

"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 LEA to make. That is of course no more than an application of the ordinary public law rule that the court will not usurp the role of the statutory decision maker. Where that role includes the elaboration of expert judgment in a delicate and difficult area, the rule is all the more important."
[37]It follows that C v Brent is authority for the proposition that, in the exercise of its statutory duty to provide suitable education for a child under s.19, it is for the LEA to exercise a professional judgment as to what is "suitable," and that judgment is only open to public law challenge on traditional Wednesbury-type grounds. For the purposes of this application I am prepared to accept, without deciding the matter, that the review by the Court should adopt the heightened standard of scrutiny introduced by Daly and contended for by Mr Wise (which I note was the approach adopted by the judge in R(R) v Kent County Council.) It is not for this Court to get drawn into the merits of the rival arguments on suitability any more than is absolutely necessary for the purposes of exercising its review function.[38]Both Court of Appeal authorities were followed in R (R) v Kent County Council. That was a case where a child, S, was withdrawn from school by his parents after some serious bullying. The LEA proposed to send him back to the same school, as the nearest suitable alternative was a considerable distance away from his home and would have required him to travel for over 1 ¼ hours by bus on his own. Measures had been taken in the interim to address the issue of bullying at the school. S relied on evidence from an expert psychologist that a return to the school would be psychologically detrimental to him. The LEA did not accept that returning S to the school would cause him illness in the future and relied on their own expert psychologist. S sought judicial review on the grounds of a breach of s.19. The application was dismissed.[39]The judge first considered the case of R(G) v Westminster and decided that the court's focus of attention was 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. Having quoted from paragraph 46 of Lord Phillips' judgment he continued:
"[21] In my judgment, those passages indicate that the focus of the s.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 practicability 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 are primarily for the LEA although 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 R(G) v Westminster City Council, 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."
[40]He then considered the case of C v Brent and said that it may provide further support for the proposition that it is for the LEA to decide what is reasonably practicable in the first instance. His conclusion in paragraph 25 was as follows:
"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 is used and adopted in the other two limbs, medical illness and exclusion."
[41]Mr Wise sought to persuade me that both the question of "reasonable practicability" and the question of suitability were matters for the Court to determine on an objective test and that insofar as C decided otherwise it was per incuriam as inconsistent with R(G) v Westminster. He made the point that if it is not reasonably practicable for a child to access the education on offer it cannot be suitable.[42]Mr Wise submitted that the correct approach was dictated by two matters, firstly as a matter of construction of the statute as in the case of R (A) v Croydon LBC [2009] 1 WLR 2557, and secondly because s.19 is a statutory duty not a power. It is the exercise of discretionary powers that are traditionally reviewed on Wednesbury grounds. The question of compliance or otherwise with a mandatory statutory duty, being a determination of lawfulness, is a question for the court. He relied upon R(G) v Southwark LBC [2009] 1 WLR 1299 [2009] UKHL 26. However, as Mr Lawson pointed out, that case concerned a very different statutory regime and the House of Lords was not considering the exercise of value judgments. The issue in that case was, once certain conditions were satisfied, which statutory provisions an authority should act under. That is plainly a pure question of law.[43]I do not consider that the case of R(A) v Croydon LBC supports Mr Wise's contention; indeed it may lend support for the opposite view. That was a decision of the Supreme Court concerned with the duty on a local authority to provide accommodation for any child in need within their area who appeared to them to require accommodation in consequence of certain specified matters. "Child" was defined as "a person under the age of 18". The issue was whether it was for the court to determine whether a person was a child on the balance of probabilities or whether the authority must decide the matter, subject to judicial review on the usual principles of fairness and rationality. The Supreme Court decided that it was a matter for the court to determine. Baroness Hale, in paragraphs 26 and 27, drew a distinction between on the one hand a question which requires a number of value judgments, such as whether a child is or is not "in need", and a question of fact, such as whether a person is or is not a child, which admits of only one correct answer. She made it clear that a question of the former kind is one for the public authority subject to the control of the courts on the ordinary principles of judicial review.[44]In my judgment, the examples given by Lady Hale in paragraph 26 point clearly to matters such as "suitability" and even "reasonable practicability" being questions of the former, rather than the latter type. In any event it is clear from paragraph 28 of the judgment that the decision in Ali depended heavily on the way in which Parliament had made its intentions plain through the drafting of the relevant statute. Moreover, in paragraph 33 Lady Hale made it clear that if her approach to the determination of age was accepted by the other members of the court (as it was) that did not mean that all the other judgments involved in the decision whether to provide services to children or to other client groups must be subject to determination by the courts. They remain governed by conventional principles.[45]As for the point that compliance with a mandatory statutory duty is a question for the court, of course I accept this, but the way in which the LEA has gone about complying with that duty necessarily involves the taking by the LEA of a value judgment about the suitability of the proposed educational provision for the needs of the particular child after making a series of highly complex assessments. I am not only bound by the approach in C v Brent but I consider it to be correct. I also agree with the observations of Mr Blake QC in R(R) v Kent quoted in paragraph 39 above.

Has there been a breach of the s.19 duty?

[46]In my view, on the facts of this particular case, whichever test is to be applied and adopting Mr Wise's preferred approach of a high level of anxious scrutiny, it is reasonably practicable for H to attend School A, the decision by the LEA that School A is suitable for H's needs is unimpeachable on public law grounds, and there has been no breach of the duty under s.19 even if that duty has been engaged.[47]H's case is largely based on the premise that regardless of whether School A might objectively be regarded as suitable to meet H's needs, and even though there is no physical impediment to her attendance there, this is a case which falls within the exceptional category recognized by Lord Phillips in paragraph 48 of the judgment in R (G) v Westminster. Mr Wise submitted that it was unreasonable to expect H to attend that school because "an attempt to require her to return there is likely, given her medical history of anxiety leading to suicidal behaviour, to present a significant risk to her mental health". That is the opinion stated in paragraph 9 of the addendum expert report of Mr Trevor Holme, a Chartered Educational Psychologist, dated 3rd March 2010.[48]Mr Holme is an Associate Fellow of the British Psychological Society and has some 32 years' experience working as an educational psychologist in local authorities including 10 years as Principal Educational Psychologist for Leicestershire County Council. He is also a qualified teacher. His experience and professional qualifications, set out in detail in his first report, are impressive.[49]Mr Holme's opinion is not shared by Ms Sophie Curra, the Defendant's expert Educational Psychologist. In her report Ms Curra points out that children with Asperger's Syndrome often experience change and transitions as anxiety provoking, and that it is recommended to keep such changes and transitions to a minimum. For that reason, she did not believe a further change in school provision to be beneficial to H. She said that H had formed positive relationships at School A and that when attending she presents as settled and happy in school. Ms Curra's view is that "it is likely that a change in school placement will be anxiety provoking and detrimental to H's learning, emotional and social well-being." Ms Curra also refers to reports that a large number of year 9 students at School B display levels of challenging behaviour, including incidents of violent behaviour, and points out that it is likely that the frequent occurrence of such behaviour among her peer group will create feelings of insecurity stress and high anxiety for H.[50]Mr Holme gained the trust of H sufficiently to enable him to persuade her to talk to him at length, but Ms Curra was less fortunate and the closest she was able to get to ascertaining H's views was a statement prepared by H and handed by H to Ms Curra when she visited the family home. Mr Wise submits that this is one reason why I should prefer the views of Mr Holme. However, this is not a case in which the views of H as expressed in writing to Ms Curra were significantly different from what she said to Mr Holme. Whilst Mr Holme had some advantage over Ms Curra with regard to being able to assess H for himself, I am not persuaded that it relegates Ms Curra to the same status as a doctor who fails to examine the patient before making a diagnosis.[51]How, then, is the court to assess the competing views of these two highly competent professionals? A court or tribunal that has to decide a case on the merits may face the unenviable task of having to prefer the view of one expert to that of another, but such a court or tribunal will normally have had the advantage of seeing and hearing the experts and of assessing their answers under cross-examination, as well as questioning them itself if there are any aspects of their reports that need clarification or amplification. This Court, being a court of review, has none of these advantages and in my judgment should not allow itself to be drawn into determining which expert's view is to be preferred.[52]There may be cases in which it is easy to place little or no weight on the opinion of an expert that is relied upon by one of the parties, for example if the expert is unqualified to express the view that he does, or if the view he expresses is manifestly contrary to the rest of the evidence, or if he is reaching a conclusion without first obtaining the empirical evidence to support it – as in Shala v Birmingham City Council [2007] EWCA Civ 624. In a case which is not that extreme, it is almost impossible to decide which of them is right, and that is not the function of a review court in any event. I concur in the view expressed by Munby J in CF v Secretary of State for the Home Department (supra) at paras 216-219 about the undesirability of the use of expert evidence to challenge a public authority's decision-making.[53]The question that I have to decide is whether it is reasonably practicable for H to attend school A (or whether that view is one within the purview of the margin of appreciation allowed to the Defendant when deciding how to exercise its statutory duty under s.19). If Mr Holme's evidence, read in conjunction with the evidence of Mrs R and H herself satisfied me (despite the considerable body of evidence adduced by the Defendant to the contrary) that the case falls within the exceptional category referred to by Lord Phillips in paragraph 48 of R (G) v Westminster, then it would not be. But this is not a case in which the pupil is likely to be exposed to a risk of sexual assault or would be forced to return to the scene of some other appalling traumatic incident or would pose a significant threat to other children at that school. It is not a case where the expert evidence, taken at its highest, comes anywhere near establishing that sending H back to School A against her wishes would be likely to cause her to make another suicide attempt, or even self-harm. I must also bear in mind that wherever H is placed, it appears to be common ground that the already lengthy interruption to her education is bound to have a detrimental impact upon her ability to cope with re-entry to any school, and therefore her reintegration may be a difficult process regardless of the identity of the educational establishment concerned. In my judgment this case is no different from R(G) v Westminster, C v Brent ,and R (R) v Kent in which the LEA was held to be entitled to reject expert evidence relied on by the child's parents in reaching its conclusion.[54]I have noted that in both his original report and his addendum report Mr Holme is not addressing the question whether School A is unsuitable for H nor is he addressing the question whether it would be unreasonable for H to attend School A. Rather, he sets out his assessment and opinion of H's special educational needs and then addresses the question of placement. He refers to the fact that both School A and School B have positive Ofsted reports and that the curriculum at both schools is rated as outstanding. In terms of the quality of both schools he says that there is, in general terms, no difference between them. He then lists a number of factors to be taken into account in determining "which of the schools would best meet H's special educational needs" (emphasis added). In his addendum report he specifically provides an opinion on how that question should be answered and comes down in favour of School B, for a number of cogent reasons which the tribunal may or may not ultimately accept. (I would add that Ms Curra gives a number of equally cogent reasons for her opposing view).[55]However Mr Holme then expresses the opinion in paragraph 9 to which I have already referred. Although elsewhere in his reports Mr Holme has taken pains to explain the reasons for his opinions and demonstrate his chain of reasoning, the only express reason given in the addendum report for his view that an attempt to require H to return to School A is likely to present a significant risk to her mental health is "her mental history of anxiety leading to suicidal behaviour". Yet Mr Holme's earlier report based on his discussions with H states, in paragraph 28, "in reflecting on her episodes of mental ill health H is quite clear in saying that it now feels as if that were a different person. I asked if she feared that such an episode could recur. She told me that she was determined that it would not happen again and that if she decided that it wouldn't happen then it wouldn't." There are also no reports of H self-harming or attempting to do so during her time at School A. The evidence shows that there are numerous measures being taken to help H to cope with her anxiety, and that the re-integration plan would address this, as one might expect it to. Moreover, Mr Holme's interview with the head teacher, Sue Rogers, revealed only one example of a case in which H displayed extreme anxiety at school – and that was about a proposed school trip. In the event H did not go on the trip, and the manifested anxiety was appropriately managed.[56]Accordingly whilst I have no doubt that Mr Holme's view is honestly held, it seems not only somewhat surprising, appearing in the report as it does with no forewarning and no reasoned explanation, but there is no clear support for that conclusion in his earlier report or anywhere else. Indeed, it could be regarded as running contrary to the tenor of the information set out in his first report.[57]Mr Wise drew the Court's attention to paragraphs 49 and 57 of Mr Holme's first report and paragraphs 5 and 6 of his second report as supporting the view expressed in paragraph 9 of the latter. The first of the two passages in the first report to which Mr Wise refers, however, does no more than express the view that H's anxieties are real and present risks if not managed skilfully; if and insofar as Mr Holme criticises the way in which those risks have been managed by School A (and I am not sure that he does) there is a genuine difference of opinion between him and Ms Curra.[58]As for the recommendation of Cognitive Behavioural Therapy, which is available or accessible at School B, there is nothing in Mr Holme's reports to suggest that such therapy must be made available at school. In any event there is evidence that steps are being taken by to arrange for H to have CBT if she returns to School A, if that is an appropriate therapy. I refer to the proposed reintegration plan for H annexed to the School Report by Ms Rogers dated 4th February 2010. As for the observation in the addendum report that the fact that School B is H's preferred option and this is an important factor in considering a placement which presents less risk to her mental health, the issue here is not which school presents less risk, but whether H's mental health would be actively put at risk by returning her to School A to such an extent as to make it unreasonable for her to go there. I do not believe that Mr Holme is suggesting that unless H is allowed to choose her school her mental health will suffer.[59]I do not intend any disrespect to the remainder of Mr Wise's arguments about the "objective unsuitability" of School A when I say that they appear to me to be nothing more than an attempt to persuade this Court to decide the matter on the merits by preferring Mr Holme's assessment to that of the Defendant. It is for the SENDIST tribunal to decide whether or not School A can meet the full range of provision that H requires. After very careful consideration of all the evidence in this case I cannot find that the Defendant's behaviour was perverse or irrational, or that it fell outside the proper and reasonable bounds of its determination as to how to go about exercising its statutory duty to provide H with full-time education that is suitable for her specific needs.

CONCLUSION

[60]I have carefully considered whether the Defendant's statutory duties under s.19, read in conjunction with A2P1, have been discharged, and I reach the conclusion that they have.[61]In my judgment, applying the Daly approach in scrutinizing the way in which the Defendant exercised its statutory obligations, and taking into account all the evidence in this case, the Defendant was entitled to take the view that School A was available and reasonably practicable for H to attend. As in the case of R(R) v Kent County Council this Court is unable to reach the conclusion that the Defendant has gone beyond the bounds of reasonableness that would enable this Court to intervene. Although H is not receiving full-time education, and this is most regrettable, her situation is not one that engages a duty under s.19(1) on the Defendant to provide her with suitable alternative education pending the determination of the appeal by SENDIST.[62]It follows that permission to bring a claim for judicial review will be refused because that claim would fail.