QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a judge of the High Court)
| R on the application of HR
(by her mother and litigation friend CR)
|- and –
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
David Lawson (instructed by Medway Council Legal Services) for the Defendant
Hearing date: 30th March 2010
Crown Copyright ©
Miss Geraldine Andrews QC:
The factual background
The Legal and Statutory Framework
"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  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?"
"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."
The proper approach to the resolution of the issue of breach of statutory duty
"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."
"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."
" 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.
 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."
"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."
Has there been a breach of the s.19 duty?