G, R (on the application of) v Westminster City Council

The claimant, G, is a fifteen year old boy. With the permission of Carnwath LJ, granted on 13 October 2003, he seeks judicial review of a decision of the City of Westminster Council (‘the Council’) that was made on 16 July 2003. By that decision the Council declined to make arrangements for the provision of education for G other than at St George’s School, Westminster (‘St George’s’). G contends that this decision constituted a breach of the duty imposed on the Council by section 19 of the Education Act 1996, which, so far as material, provides:

No evidence from G himself has been placed before the Court. The principal evidence of fact given on his behalf has been provided by his father, (‘Mr G’), in two witness statements. The principal evidence given on behalf of the Council is contained in witness statements provided by Pauline Bastick, the Council’s Acting Head of Social Inclusion, and Alison Toia, the Deputy Head Teacher of St George’s. There is little conflict of evidence.

G started attending St George’s on 10 December 2001 and was then placed on the register of the school. He remains on that register, and the Council contends that the availability of a place in this school satisfies its obligation under section 19 of the Act to make arrangements for the provision of suitable education for G. On 3 October 2002 G was excluded from St George’s for a period of 7 days. His father has declined to send him back to the school. He contends that it is not reasonable to expect him to do so, having regard to the fact that his son had experienced repeated incidents of bullying in the school.

G’s case, as advanced by his counsel, Mr Ian Wise, is as follows. G is someone who, ‘by reason of illness, exclusion from school or otherwise’ will not receive suitable education unless arrangements for this are made at a school other than St George’s. He contends G is precluded from continuing to attend St George’s in consequence of illness – namely depression and stress brought on by the bullying that he has received at St George’s. Alternatively, he submits that circumstances embraced by the word "otherwise" are preventing G from receiving suitable education, so that section 19 obliges the Council to make arrangements for the provision of this.

On behalf of the Council, Miss Sarah-Jane Davies challenges G’s contention that illness has prevented his continued attendance at St George’s. Nor does she accept that his father has acted reasonably in refusing to allow him to continue his schooling at St George’s. She contends that a reasonable parent would send G back to that school. She further contends, however, that even if G’s father acted reasonably in withdrawing him from St George’s, section 19 imposes no duty on the Council to arrange for the provision of alternative education. Provided that the Council offers a place at a school that satisfies the criteria in section 19(6) and that G is physically able to attend the school, it is the duty of Mr G to send G to that school or, himself, to arrange suitable alternative schooling. Miss Davies submits that this proposition is established when section 19 is considered in conjunction with other relevant provisions of the Act.

The issues explored before us can be summarised as follows:

Is G unable to attend St George’s by reason of illness?

Is Mr G acting unreasonably in refusing to permit G to continue to attend St George’s?

Does section 19 require the Council to arrange for the provision of suitable education other than St George’s if Mr G is acting unreasonably in refusing to permit G to continue to attend that school?

Does section 19 require the Council to arrange for the provision of suitable education other than St George’s if Mr G is acting reasonably in refusing to permit G to continue to attend that school?

Before turning to the issues set out above, we propose to summarise the material facts. We are assisted in this task by an analysis of the evidence prepared by Miss Davies, to most of which Mr Wise assented.

We will deal first with G’s family background. His parents are separated, and initially he lived with his mother. His relationship with her was bad and life both at home and at school was stormy and unhappy. The former culminated in his mother deciding ‘to throw him out of her house’. Custody was transferred to his father with whom he went to live. The change was beneficial and he has become devoted to his father, who, unhappily, enjoys poor health.

G changed schools on a number of occasions. He finally moved to St George’s as the result of a managed transfer from Barnhill School in the London Borough of Hillingdon. A School Referral Form, completed by the Marlborough Education Unit (as to which see below) records both physical and verbal violence to other pupils at this school and occasional verbal violence towards teachers. There was at least one occasion on which he was excluded from this school.

From the outset special steps were taken to manage G’s transfer to St George’s and his integration into the school. Mr Lewis, then the deputy head teacher responsible for inclusion, was established as his mentor. In January 2002 Mr G approached Mr Lizandro Torres, the Council’s Education Welfare Officer, requesting assistance in relation to unresolved incidents of bullying at St George’s.

Two incidents occurred at the school on 28 February 2002, though the precise nature of these is not agreed. They led, however, to G being referred by his doctor to the Marlborough Family Service, which forms part of the Mental Health NHS Trust. There he was seen by Dr Varchekver, a consultant psychiatrist, and Ms Salman, a mental health worker. On 10 June 2002, the latter reported to G’s doctor:

There is no record of any further incident involving G until September 2002. Then an incident took place, which resulted in a fight between G and a girl called B. G sustained a cut lip. No action was taken as both children were considered equally to blame. G complained that he was being picked on by girls in his class, so he was moved to a higher set. Despite this G was, on 18 September, assaulted by a different female pupil. The pupil was excluded for two days and sent for counselling.

On 3 October 2002 there was a considerable fracas involving a fight between G and a girl called C. This was carefully investigated by the school and it was concluded that G was predominantly to blame, although Mr G does not accept this. G was excluded from the school for 7 days. The school made plans for reintegrating G on his return, which included the use of a learning mentor, a modified timetable and a pastoral support plan. G did not, however, return at the end of the 7 day period. With some difficulty a meeting was arranged on 15 October between the Head Teacher, Ms Toia, Mr Torres and Mr G to discuss the position. Little discussion took place, for Mr G declared firmly that he was removing his son from the school.

Mr G then consulted solicitors who, on 18 October, wrote to the Council alleging that G had been constantly bullied at St George’s and continuing:

Thereafter, such steps as were taken by the Council in an attempt to assist with G’s education were taken against a backdrop of adversarial legal correspondence. While attempting to assist in providing G with alternative education, the Council has always maintained that, by keeping G on the roll at St George’s, they were discharging their duty under section 19 to arrange for the provision of suitable education.

We can deal briefly with the steps taken by the Council after G had been withdrawn by his father. While Miss Davies submitted that they amounted to best endeavours by the Council to arrange for the provision of suitable alternative education, she did not submit that this goal was in fact achieved. A place was offered at the school’s learning support unit in conjunction with a placement at the Skills for Work Training Programme based in Camden, but this was not acceptable to Mr G. After a period a place was offered for a therapeutic course at the Marlborough Education Institute. G was unable to take this up as it was an essential requirement for the therapy that his father should attend with him and this was not compatible with the demands of treatment for Mr G’s own medical problems. Meanwhile, up to the summer of 2003, a limited amount of tuition was provided to G by the Westminster Home and Education Service. This was intended to be an interim measure with a view to re-integrating G into mainstream education.

Efforts were made to find a place for G in an alternative school, but without success. At the time of the hearing before us it seemed likely that a place would be offered to him by Quintin Kynaston School, which would have been acceptable to G and his father. The parties have provided the Court with information as to what transpired after the hearing in relation to this possibility. The position is best demonstrated by setting out the letter written to Mr G by the Director of Learning at Quintin Kynaston School on 1 December.

Even with support, [G] has a lot of ground to make up and would probably benefit from a phased re-integration.

Given his traumatic emotional history as described by you, your comments on his behaviour and the instances of aggression in his recent school placements, [G] will require considerable emotional support in his return to education.

GCSEs are not a realistic goal for this school year but it is important that [G] has appropriate educational goals to work towards, and progression routes for post 16 education.

As you are aware, year 11 at Quintin Kynaston is full at present. However, we can offer him a gradual re-integration package. Having met with you, and considered [G]’s school records we are prepared to offer a package of measures as set out below.

[G] is to attend school on Thursday 11 December at 10.30 initially to meet with my colleague Ms Sheel. A timetabled programme is being prepared for the remainder of the day, which will include [G] meeting with three members of the Inclusion Department and an Educational Welfare Officer.

A uniform consisting of a t-shirt and sweatshirt will be provided on the 11^th December. He must come in wearing black trousers and black shoes.

I understand that the LEA is arranging for an educational psychologist to assess [G]. We will liase with the LEA in respect of this assessment.

One of the options we consider may well be appropriate is Work Related Learning, which would mean that [G] came to our school 2 days a week and worked in the Inclusion Unit, goes to College one day per week, and spends two days per week in a work placement. We can discuss this further on the 11^th December.

[G] will remain on roll at St. George’s until such time as the re-integration has been successfully completed.

On 30 January 2003 Mrs Salman and Mr Varchevker wrote to the Council in the following terms:

This letter is the most recent medical evidence in relation to G’s mental state. To this should be added a number of positive comments in G’s Summer Term Report from the Hospital and Home Education Service. In particular, his English report commented: "There has been a massive improvement in maturity and attitude. I feel that [G] has the potential to achieve greatly and would like to see him push himself further to get the education he needs".

The evidence suggests to us that G will require special assistance of the type suggested in the letter from the Director of Learning at Quintin Kynaston if he is to be successfully re-integrated into mainstream education. That is the position whatever school he attends. As we understand the position St George’s is as well placed to provide a ‘re-integration package’ as is Quintin Kynaston. Special assistance of this kind is intended to compensate for the educational and social detriment that G has suffered as a result of not attending school for over a year. It has never been part of G’s case that he is not sufficiently fit to go to school. The evidence does not establish this to be the case. Accordingly we conclude that G is not prevented from attending St George’s by reason of illness.

This question has to be answered objectively. We are in no doubt that St George’s is a school able to provide G with suitable education, as defined in section 19(6). G’s past history and the evidence provided by St George’s suggest that the problems that he experienced at that school were attributable, at least in part, to his own personality. It is a sad fact that some children are more susceptible to bullying than others, and G plainly has a problem in relating peaceably to his classmates. He got off to a bad start at St George’s, but the school was prepared to persevere with him and to put in place special measures to help him to become satisfactorily integrated in the school. We have sympathy for the predicament in which Mr G found himself. We do not think that he was unreasonable in attempting to find another school where G could make a fresh start. We do, however, consider that he acted unreasonably in withdrawing G from St George’s when there was no alternative school available. Had he acted reasonably, he would have considered what the school had to propose at the meeting of 15 October, discussed G’s needs with the staff and allowed the school to attempt to cater for those needs. Since then he has resolutely set his face against returning G to St George’s, although no suitable alternative placement has been provided. We do not consider that in so doing he has acted reasonably.

The final two issues involve consideration of the ambit of the duty imposed on the Council by section 19 of the Act and we shall consider them together. G’s Statement of Grounds filed in support of his claim make the following contentions:

In argument, Mr Wise argued that, whether or not the more extreme proposition in the Grounds of Appeal was correct, a duty under section 19 will undoubtedly arise where a father acts reasonably in withdrawing his child from a school.

Miss Davies argued that section 19 had to be construed having regard to its statutory context, and summarised the relevant provisions in her skeleton. It is convenient to set out part of that summary at this point.

Local Education Authorities (LEAs) and their general functions are dealt with in Chapter III, Part I of the Act. Under the heading "General functions", s13 of the Act sets out the general responsibility of LEAs for education in their area, s13A imposes on them a duty to promote high standards in primary and secondary education and s14 imposes on them a duty to secure that sufficient schools for providing primary and secondary education are available for their area.

The next heading is "Establishment etc of schools" and, by virtue of s16 of the Act, an LEA has power to establish, maintain and assist primary and secondary schools and by virtue of s17 it has power to establish, maintain and assist nursery schools. We have already set out the provisions of section 19.

By virtue of s7 of the Act, responsibility for causing a child of compulsory school age to receive efficient full-time education either by regular attendance at school or otherwise is imposed on the child’s parents:

Sections 438, and 440 give a parent a right to make arrangements for a child to attend an alternative suitable school to the school originally named in an attendance order.

Section 443 makes it an offence to fail to comply with a school attendance order, as follows:

Miss Davies submitted that the words ‘or otherwise’ in the expression ‘by reason of illness, exclusion from school or otherwise’ in section 19 should be construed consistently with the preceding items listed in section 19. Illness and exclusion were what might be termed ‘unavoidable’ reasons why a child might not receive suitable education. The expression ‘or otherwise’ should be construed as being confined to such circumstances. Such an approach accorded with an established canon of statutory construction – see Bennion Statutory Interpretation (4^th Edition) Section 382.

Miss Davies further submitted that section 19 must be construed in its statutory context. She contended that the task of construing section 19 was assisted by consideration of the provisions of the school attendance regime under sections 437 to 444 of the Act. We can summarise her argument as follows: Where an attendance order has been made, the onus is on the parent to comply with the order or to find suitable alternative education for the child. Under section 444 a parent whose child fails to attend regularly at the school at which it is registered commits an offence unless the child is prevented from attending "by reason of sickness or any unavoidable cause". It is not a defence under section 444 for a parent to contend that the school in which the child is registered is not suitable, or that the parent has good reason for declining to send it to that school. It is inconsistent with this scheme for a local education authority to be under a section 19 duty to provide alternative suitable education where it remains possible for the child to continue to attend its existing school. Parliament cannot have intended that, at one and the same time, an education authority can be in breach of its section 19 duty to provide suitable education and a parent can be in breach of the section 444 duty to ensure that its child attends school. On its true construction, section 19 only imposes a duty on a local education authority to provide suitable alternative education where, by reason of sickness, illness or otherwise, it is not possible for the child to attend its existing school.

Mr Wise invited us to seek guidance in relation to the meaning of ‘otherwise’ in section 19 by reference to parliamentary material under the principle in Pepper v Hart [1993] AC p. 593. The material in question consisted of statements made by Baroness Blatch, the Minister of State for the Department of Education, when moving an amendment to an Education Bill on 4 May 1993. This Bill became the Education Act 1993 and the amendment in question was to a clause which was the precursor of section 19 of the 1996 Act.

Mr Wise also relied upon Circular 11/99 issued by the Department for Education and Employment headed ‘Social Inclusion: the LEA role in Pupil Support’. He submitted that this had particular relevance by virtue of sub-section (4A) to section 19, introduced by amendment in 1997, which provides:

Mr Wise submitted that these aids to construction of section 19 clearly indicate that ‘otherwise’ has a wide ambit. He further submitted that Article 8 of the European Convention on Human Rights, when read in conjunction with Article 3 of the United Nations Convention on the Rights of the Child, imposed a positive obligation on the Council to provide suitable education for G by way of an alternative to St George’s.

Both Miss Davies and Mr Wise have invited us to have regard to extrinsic material when construing section 19 and we will first address their respective submissions in relation to this.

We consider that there is sufficient ambiguity, or uncertainty, as to the scope of the word ‘otherwise’ in section 19 to render admissible parliamentary material that satisfies the criteria laid down in Pepper v Hart. Giving that decision its wider application, as to which see the comments of Lord Steyn in McDonnellv Congregation of Christian Brothers Trustees [2003] UKHL 63 at paragraph 29, a clear Ministerial statement as to the meaning of that word is required. We have concluded that no such statement is to be found in the debate upon which Mr Wise relies. The first problem is that Baroness Blatch was not merely moving an amendment to the clause that was to become the precursor to section 19, but was also speaking to 13 other amendments. The nature of those amendments was not explored before us. The second problem is that the clause in question, with the proposed amendment, differs somewhat from the wording of section 19. The third problem is that there is not clarity and consistency in the statements made by Baroness Blatch as to the object of the clauses to which she was speaking. At times she addressed the needs of all children who were not receiving education for any reason whatever. This contrasts with a statement that;

For these reasons we do not consider that the Parliamentary material assists in the task of construction of section 19.

We think it questionable whether this is a legitimate aid to construction. Section 19 (4A) requires local education authorities to have regard to guidance given by the Secretary of State as to the arrangements to be made for those children who are covered by section 19. We are not persuaded that such guidance can properly be relied upon as showing which children fall into this category. Nor do the contents of the Circular afford Mr Wise much assistance. The section dealing with section 19 comments

There are circumstances in which Article 8 can impose positive obligations on a State. We are, however, concerned with one of a large number of statutory provisions which impose positive obligations that are designed to promote the interests of children and that go beyond any positive obligations that might be imposed by Article 8. We do not see that Article 8 adds anything to G’s case.

Miss Davies contended that section 19 dovetails neatly with sections 437 to 444 of the Act. If there is a suitable school that is both available and accessible to a child, the authority’s duty under section 19 is discharged and the parents are under a duty to ensure that the child attends that school, or to arrange alternative education. If it is impossible for the child to attend the school, the authority has an obligation to arrange for the provision of alternative education and the parents are not criminally liable for their failure to ensure that their child attends school.

We do not consider that the respective provisions of the Act dovetail as neatly as Miss Davies suggests. The possibility always exists that the school at which a child is registered is, or becomes, unsuitable for the child’s educational needs. In such a situation the local education authority will be under a duty under section 19 to arrange for the provision of suitable alternative education while the parents will remain under a duty under section 444 to see that their child continues regularly to attend the school in question. We think, however, that Miss Davies is right to emphasise the overall scheme of the legislation.

In the absence of any case precedent, or any extrinsic aid to construction, we shall seek to give section 19 a meaning that accords with the natural meaning of the language used and makes sense, having regard to the overall scheme of the legislation. Section 19 covers the situation where there exists at least one suitable school which, for one reason or another, a child is unable to attend. ‘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.

This meaning of ‘otherwise’ is one that makes sense. If the local education authority 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.

This meaning of ‘otherwise’ also accords well with the overall scheme of the legislation. A local education authority and, more widely, the social services owe many duties in relation to the welfare of children. This appeal has focussed on only one of these – the duty to arrange for the provision of suitable education. This is a duty to ensure that there is available for each child an efficient educational facility that is suitable for the child’s age, ability and aptitude and any special educational needs that the child may have. If the local education authority makes available a school that does not please the parents, it is for the parents to arrange for alternative suitable education – see sections 438 and 440 of the Act. The primary duty of seeing that a child goes to school lies on that child's parents – see section 7 of the Act. If the parents fail to perform this duty, the local education authority has power to take coercive action. Miss Davies has drawn attention to sections 443 and 444 of the Act. In her skeleton argument she has submitted that:

We agree with this proposition. We would add that, where a child is failing to attend, the authority also appears to have power under section 447 of the Act and section 36 of the Children Act 1989 to apply for a local education supervision order. Furthermore, in some cases where a child is not receiving education, this may be symptomatic of a state of affairs that calls for care proceedings.

In any case where a child is not receiving suitable education it is necessary to consider the whole picture in order to decide in what respect, if any, this is attributable to a breach of duty by the local education authority. 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.

The fact that parents have misconceived objections to their child attending a particular school does not make the situation one in which it is not reasonably practicable for the child to receive education so as to give rise to an obligation on the part of the authority to provide alternative arrangements: in assessing what is reasonably practicable, the parents’ unreasonable objections must be disregarded.

It is possible to envisage exceptional situations where, although a school satisfies the criteria in section 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 that school. Imagine, for instance, a situation in which three other children in the school were facing criminal charges, which they denied, of sexually assaulting that child. In such circumstances it might not be reasonably practicable for the child to continue to attend the school. The local education authority would then come under a duty under section 19 to make alternative arrangements.

If a school is unable to prevent a child being subjected to persistent bullying it may be reasonable for the parents to withdraw that child from the school. In such circumstances it will not be reasonably practicable for the child to continue to attend that school. That is not this case. We have held that Mr G has acted unreasonably in refusing to permit his son to continue to attend St George’s. There is no doubt that he has been acting in what he considers to be his son’s best interests. While we sympathise with him in the dilemma with which he has been confronted, we believe that he has taken the wrong decision. This claim is not, however, Mr G’s claim; it is the claim of his son. G has "fallen through the net". For over an academic year he has not received proper schooling. This was not attributable to any breach of the duty owed to G by the Council under section 19. At all times there has been available a place at St George’s, which is a suitable school for G. It may be that a case could have been made out that the Council were in breach of duty in failing to use their powers to see that G was sent to school at St George’s. No such case has been advanced.

For the reasons that we have given, we would dismiss this appeal.