DS, R (on the application of) v Wolverhampton City Council

The claimant is a thirteen year old boy who lives with his parents in Wolverhampton. An anonymity order is in place to protect the claimant and I will refer to him as DS throughout this judgment. He brings these proceedings through his mother and litigation friend, SS.

DS suffers from autism and severe learning difficulties. Until 12 October 2016, he attended Tettenhall Wood School in Wolverhampton. DS arrived home from school on that day wearing nothing beneath the waist except a towel. As a result of that incident, DS’s parents stopped DS attending the school. Despite various investigations and reviews that have taken place since, DS has never returned to Tettenhall Wood School.

By these proceedings against the City of Wolverhampton Council the claimant challenges what those acting for him describe as “the Defendant’s ongoing failure or refusal to provide suitable education at school or otherwise than at school in breach of its duty under section 19(1) of the Education Act 1996”. That application is brought with permission of Singh J, who refused permission to apply for judicial review on a second ground relating to an alleged failure to provide information requested by the claimant’s parents.

The claimant was born on 9 July 2003. He has a diagnosis of severe learning difficulties, pervasive developmental disorder and autism, severely delayed speech and communication skills including social communication. He is described as “non-verbal”; he has difficulty in making known his needs and wishes. As acknowledged in the skeleton argument filed on his behalf, his behaviour can sometimes be challenging due to frustration. He has limited independence and limited self care skills. He has delayed fine motor skills and significant sensory needs.

DS is the subject of an education, health and care plan (“EHC plan”) maintained by the defendant Council. Since about 2010, DS has attended Tettenhall Wood School, a maintained special school in Wolverhampton. Because of his special educational needs, DS was transported to and from school on a school bus. He would be met by his mother on his arrival home and she would escort him from the bus into the family home.

On Wednesday 12 October 2016, SS left her home in the usual way to meet DS from the bus. She describes what happened in her witness statement:

The Head Teacher of Tettenhall Wood School is Ms Sarah Llewellyn. She says that at approximately 15.00 hours on 12 October 2016, DS

Mrs S explains in her statement that after she had collected DS she wrote to the family social worker, Jigna O’Callaghan, to explain what had happened and to request that the incident be investigated. That email was sent at 17.28 on 12 October 2016. Mrs S wrote:

Later that same evening Mrs S emailed Ms O’ Callaghan again saying:

She says that the following day she and her husband raised their concerns with Mr Paul Cooper, the Council’s Designated Officer. They wrote:

Mrs S says that she also:

On 13 October 2016 Mrs S also wrote to the head teacher of Tettenhall Wood School. Her email read:

In response to the email of 13 October Mr Cooper informed the claimant’s parents that a Position of Trust meeting had been arranged for 18 October and that they would be updated following the meeting. In fact the parents were told only that the meeting had been held and that an investigation would take place.

Mr and Mrs S wrote to the Interim Head of Special Education Needs at the defendant council on 27 October 2016. That email read as follows:

On 3 November 2016 solicitors instructed by Mr and Mrs S also wrote to the Interim Head of Special Education Needs at the defendant council. That letter concluded with the following:

On 4 November an interim review of the EHC plan was held. The claimant’s parents attended that meeting with their solicitor. By email dated 9 November 2016 the claimant’s mother requested home tuition for the claimant pending the amended EHC plan.

By letter dated 16 November 2016, the claimant intimated a claim for judicial review. The defendant responded by letter dated 30 November 2016. By that letter the Council indicated that Tettenhall Wood School remained responsible for meeting the claimant’s educational needs and that arrangements were being made for DS to receive a maximum of 10 hours home tuition pending conclusion of the investigation and the issue of the amended plan.

By letter dated 20 December 2016, the defendant indicated that the police had decided to take no further action in respect of the events of 12 October, that the outcome of the defendant’s investigation was that “a case to answer” had been found in respect of two current members of staff and one former member of staff; that no case to answer was found in respect of the transport company and that no further information would be divulged pending the conclusion of disciplinary proceedings. It was said that the defendant would undertake a “lessons learned” review because “a degree of fault” had been found. The letter indicated that the claimant continued to have a full time place at the school but that the defendant had also commissioned up to 10 hours education for the claimant from the defendant’s pupil referral unit.

By letter dated 22 December 2016 the claimant’s solicitors asserted that the defendant had failed to find, or propose, a new school placement and threatened proceedings.

At the permission hearing on 24 March 2017 the defendant told the Court that the claimant had been offered both home tuition and four afternoons at a pupil referral unit and that an EHC plan would be issued on 27 March 2017.

A new EHC plan was issued on 30 March 2017. That plan named a different school, Wightwick Hall School, as the proposed school for DS. The claimant’s parents were told subsequently that that school would not be able to accommodate the claimant until mid-July 2017 and in the interim the claimant should return to Tettenhall Wood School.

Educational provision was commissioned by the defendant for the claimant from an organisation called the Nightingale Centre. It was suggested that that centre would provide a maximum of four sessions, of one hour each, per week. In fact, the logs kept by the Nightingale Centre demonstrate that the claimant did not receive four hours tuition in any week.

Following an event at the claimant’s home on 29 March 2017, the Nightingale Centre withdrew from providing educational provision for the claimant. Subsequently care was provided for the claimant by an organisation called Progress Care. That organisation, however, is not an educational provider and is not registered as such with Ofsted.

The claimant has attended no school in the period from 12 October 2016 to date.

Mr and Mrs S have initiated an appeal to the First Tier Tribunal against the choice of school. They argue that the appropriate school for the claimant is Rugeley School.

I was told that the appeal was listed for hearing in mid-October 2016. It was common ground before me that the choice of school in the new plan was a matter for the Tribunal in that appeal, not for me in this judicial review.

Section 7 of the Education Act 1996 sets out the duty of parents to secure education of children of compulsory school age.

This case turns on the proper construction and application of section 19 of the Education Act 1996. That provision provides as is material:

I had the benefit of detailed skeleton arguments from Ms Charlotte Hadfield on behalf of the claimant and Ms Aimee Fox for the defendant. I heard oral submissions from both counsel. I am grateful for their assistance.

Ms Hadfield argues that the combination of the circumstances of the incident on the 12 October 2016, the lack of information provided by the defendant to the claimant’s parents, especially regarding the avoidance of similar events in the future, and what she calls a “lack of reaching out to the parents” produced a situation where it was not reasonably practical for DS to continue attending Tettenhall Wood School. She argues, further, that it was not reasonable in those circumstances to expect DS to attend school. In those circumstances, she says, there was a breach of section 19.

In response, Ms Fox argued that it was important to see the events of 12 October 2016 in their proper context. She says that the evidence shows that DS had a propensity to remove clothing and to “self-stimulate”. She said that that behaviour had happened at school previously and had happened at the claimant’s home. She said that this was the first time it had happened on the bus travelling from school to home. She argued that the use of a towel when events like this occurred was part of a policy recommended by the local authority’s education psychologist. She said that the school was seeking to address the issue of such behaviour and the majority of the time those attempts were successful.

Ms Fox argued that from the moment this incident occurred, the claimant’s parents made it clear that under no circumstances would they contemplate DS returning to Tettenhall Wood School. She argued that it was right that the matter was investigated by the local authority. She said that investigation had revealed there was a case to answer and that that case lay in the failure of all staff to check with staff on the bus that all was well with DS, and that he was fully dressed, before the bus departed.

Ms Fox argued that the defendant authority had been able to satisfy itself that it was reasonably practicable for DS to return to the school. She pointed out that he had attended the school for six years, that there was no suggestion that it was institutionally incapable of educating and caring for DS; that there was no evidence of physical or emotional harm. She said that the parents had refused even to contemplate DS’s return to the school. She said that it was reasonable to expect DS to attend the school.

Further arguments were advanced on the adequacy of the alternative provision which was offered and I return to that below.

There are two elements to this application. To succeed, the claimant needs to make out his case on both. First, he needs to show that the defendant was obliged by section 19 to make alternative arrangements for his education. Second, he must establish that they have failed to do so.

The expression “or otherwise” is used twice in section 19. Its meaning on the first occasion is plain – a local authority must make arrangements for the provision of suitable education either at a school or elsewhere. Its meaning on the second occasion it is used is less obvious. It is clearly intended to widen the class of children for whom alternative arrangements for the provision of education must be made. The two identified groups of such children are those who by reason of illness or exclusion will not receive education. “Or otherwise” is plainly intended to encompass other causes of non-attendance at school or non-receipt of education. There can be little doubt that “or otherwise” is not intended to include simple parental preference; such an interpretation would be flatly inconsistent with the section 7 duty on parents to cause their children to receive “efficient full time education”.

The courts have considered the meaning of “or otherwise” in section 19 on a number of occasions. I was shown three authorities.

In R (G) v Westminster City Council [2004] EWCA Civ 45, a child applied for judicial review of the local authority's refusal to make provision for his education other than at the school at which he was registered. He had been voluntarily removed from the school by his father following a number of incidents of alleged bullying and his temporary exclusion following a fight. His father had indicated that he would not be returning the claimant to the school and had asked the local authority to discharge its duty to arrange for the provision of suitable education for him under s.19 by providing home tuition for him. Although the local authority did make efforts to provide alternative education, it argued that by keeping the child on the register at the school and keeping a place available for him there, it was discharging its duty under section 19. It was argued on the child’s behalf that because of depression and stress brought on by having been bullied at the school, he was a person who, by reason of ill health or otherwise, would not receive suitable education unless arrangements were made for this at a school other than that at which he was registered. Judicial review was refused at first instance and the child appealed. The Court of Appeal dismissed the appeal.

At paragraph 42 and following, Lord Phillips MR said:

That decision was considered by another constitution of the Court of Appeal in C v London Borough of Brent [2006] EWCA Civ 728. There the claimant applied for judicial review of the defendant local authority's decision to provide her with education at a pupil referral unit (“PRU”) following her exclusion from school. The claimant, who had made several allegations of bullying, had been excluded from school following an assault on a classmate. The local authority decided she should attend a PRU that provided education for children excluded from school. The claimant argued that the PRU was unsuitable and that her personal circumstances were not being taken into account. The Court of Appeal directed that the full court hear the application for judicial review.

Smith LJ referred to paragraphs 46-48 of the judgment of Lord Phillips in G v Westminster and said this:

In R (R) v Kent County Council [2007] EWHC 2135 a 14-year-old child applied for judicial review of a decision of the defendant local education authority that a particular local secondary school was the appropriate school for him. He had been enrolled at a local secondary school, where he alleged he was bullied and called names relating to his racial appearance. Subsequently he attended a private school, but after a year was withdrawn because of bullying. Thereafter, he was educated at home. The local authority then considered what education should be provided for the child, and in a decision letter it set out its view that his withdrawal from the local secondary school was not reasonable and that the education offered at that school was suitable and available to the child. An educational psychologist, who noted the child's reluctance to return to the school, concluded that it would be psychologically detrimental to him to return there, and that it was crucial to re-integrate him into another school that could meet his needs and had a bullying policy in place.

Nicolas Blake QC (as he then was), sitting as a deputy High Court Judge, dismissed the application. He referred to paragraph 42 and 46 of the decision in G v Westminster and said this at paragraph 20-21;

Mr Blake then turned to the question as to who is to decide whether the provisions offered are practicable or reasonable. He said at paragraph 22

I draw from those authorities the following propositions:

Section 19 is intended to cover circumstances in which it is not reasonably possible for a child to take advantage of existing suitable schooling.

The fact that parents have misconceived objections to their child attending a particular school does not mean the authority is obliged to make alternative arrangements.

There may be exceptional circumstances where there is no physical impediment to the child attending the school, but it is nonetheless not reasonable to expect the child to attend that school.

Where that latter question arises, it is to be answered objectively, not by reference to the parents’ view of the facts.

The acid test is whether educational provision offered by the local authority is available and accessible to the child.

I apply those principles to the facts of the present case.

I am entirely satisfied that Tettenhall Wood School is capable of providing efficient education suitable to the age, ability, aptitude and needs of a child like DS. The school has been assessed by OFSTED to be “a good school” on the occasion of each of the last two inspections, the local authority regard it as suitable and there is no evidence of widespread complaint about the education it provides. DS has attended the school for 6 years and, although there have been complaints from his parents on occasions in the past, there was no evidence before me as to events prior to 12 October 2016 fundamentally to call its suitability for him into question.

It cannot sensibly be suggested that there is any physical impediment to DS attending the school and the mere fact that Mr and Mrs S would prefer DS to be educated elsewhere is not determinative. The question I must ask myself, therefore, is whether the events on 12 October 2016 mean it is not reasonably possible for DS to take advantage of what would otherwise be the satisfactory schooling offered at Tettenhall Wood School

It is argued by the claimant that those events, and the reaction to them of the school and the parents, amount to exceptional circumstances of a character which mean it is not reasonable to expect DS to attend that school.

I accept without hesitation that the parents were upset, and justifiably upset, by the way in which DS was transported from school on 12 October. To permit a vulnerable child to travel home in a bus when, apart from the provision of a towel, he was naked from the waist down was a serious error by the school authorities. DS could not have removed his clothing once he was in his harness; that must mean that he was fitted into his harness whilst naked below the waist. As the defendants acknowledged before me, it was wrong of the school staff to accept the bus driver’s apparent indication that the bus was ready to move off without first ensuring that the problem created when DS removed the clothing form his lower half was properly addressed.

The position was made worse by the fact that DS is not always continent and by the fact that other children were being conveyed in the same vehicle. The complaint of Mr and Mrs S that these events demonstrate that the school was failing properly to respect the dignity of DS is, in my judgment, made out.

I accept, moreover, that the schools response to these events was inadequate. I appreciate that the need to ensure that the matter was properly and independently investigated meant that neither the school nor the local authority could discuss the details with the parents immediately. I appreciate too that the conduct of disciplinary proceedings may have inhibited discussion on some aspects of the history. But nonetheless I have no doubt that more could have been done by the school and the authority to communicate with the parents, to listen to their concerns and to offer reassurance. It ought to have been possible to explain the outcome of the independent investigation without revealing material which would prejudice any subsequent disciplinary hearing.

However, the evidence makes clear that DS had developed a tendency, on occasions, to remove his clothing at school. His condition meant that, on occasions, he was disinhibited and would self-stimulate in public places. It was the school’s job to manage that problem when DS was at, or travelling from, school. The fact that DS exhibited such behaviour in the past does not excuse the school’s failures on 12 October. But it does, in my judgment, provide relevant context; dealing with the consequences of the claimant undressing at inappropriate times was a feature of their work with him and it was not a unique event in DS’s life.

In my judgment, the reaction of Mr and Mrs S to the events of 12 October was not entirely reasonable or proportionate. Within four hours they were demanding that DS be moved to a new school. That, rather more than an explanation for what had happened or consideration of how the problem could be avoided in the future, was their primary response. Whilst I accept, as Ms Hadfield argued, that a less than temperate response was understandable in the hours immediately after the event, the parents have continued ever since to have as their focus the provision of a different school for DS.

Moreover, they have made it crystal clear that they want the authority to provide DS with a place at one particular school, namely Rugeley School. It was with a request that a transfer to Rugeley be considered that the claimant’s solicitors ended their letter of 3 November 2016. Rugeley is an independent school, the fees for which are particularly expensive. I am left with the clear impression that the events of 12 October were seen by the parents as providing valuable ammunition in their fight to get their son the school they wanted for him. Whilst that is a perfectly proper ambition for the parents to have for their son, it did in my view colour their dealings with the school and the authority from 12 October onwards.

In my view, Ms Fox is right to assert that the failures of the school on 12 October constituted a one-off event; there had been no similar failing by the school previously and there was no suggestion of a systemic failure by the school which would undermine its ability to care for DS in the future. No criminal conduct had been suggested or revealed. The school was willing to investigate what had happened and to learn from such mistakes as the investigation revealed. In my judgment, this one event notwithstanding, the school remained suitable for DS.

Furthermore, the defendants argued, and it was not disputed, that after this event the school’s policies on child protection and safeguarding were reviewed, and revised polices ratified by the Governing Body. All staff at the school had undertaken, or were required to undertake, refresher training in relation to pupil safety, safeguarding and managing school transport. That suggests a willingness on the part of the school to adapt, so as to improve its systems and management and, as a result, to improve the care they would be able to offer DS.

In my judgment, against that background, the events of 12 October and the school’s response to them do not mean that it was “not reasonably practicable” for DS to attend Tettenhall Wood School. The lack of information provided by the defendant to the claimant’s parents, and the limited contact initiated by the school, was regrettable but it does not, in my view, bring this case into the sort of exceptional category described in G v Westminster by making it objectively unreasonable to expect DS to attend the school. On the contrary, with a proper degree of open-mindedness on the part of the parents, the deficiencies in the school’s arrangements which the events of 12 October 2016 revealed could have been put right and DS could have returned to the school in safety, and with proper respect for him ensured. Instead, in my judgment, the parents made clear that they were not willing even to contemplate the claimant’s return to Tettenhall Wood School.

I make it clear that I do not blame the parents of DS alone for what has occurred. On the contrary, they have my sympathy for the difficulties they face and my admiration for their efforts to do the best for their son. Furthermore, as I have made clear above, the school and the authority bear a share of the blame for the difficulties that have arisen. But my task is not to decide who bears what blame, but to decide whether section 19 (1) is engaged. It is my firm conclusion that it is not.

In those circumstances, the claimant fails to make out his case that the defendants were obliged to make alternative provision for him.

In the light of that conclusion, it is not necessary for me to address the second element of the claim. For the sake of completeness, however, I set out, in summary form, my views on this issue.

Ms Fox argued that the defendant was offering to provide adequate education via the school’s outreach programme or at home. She says the claimant’s parents refused, or never took up, the offer of outreach support. She says that the Nightingale Centre were commissioned to provide tuition for 10 hours each week, but their attempts to do so failed because of the claimant’s behaviour and the response of Mrs S. She says a company called Progress Care were commissioned to provide “sensory work” with the claimant and Regis Group were instructed to provide four hours educational provision each week. But the claimant’s parents have again not taken up the offer. She argues that, in effect, all attempts to provide education had been rebuffed by the claimant’s parents. Nonetheless, she says, the authority remained willing to make proper provision available for the claimant.

Had it remained an issue in the case, I would have rejected the defendant’s submissions in this regard. In my view, what was offered to the claimant fell a long way short of adequate educational provision.

Ms Hadfield referred to statutory guidance produced in accordance with the 1996 Act. The guidance provides at paragraph 10.39 that:

She points out that under paragraph 10.40, where education is arranged elsewhere than at school, it “should be on a par with mainstream schools”. Further, the guidance provides that where “alternative provision is specified in a child or young person’s EHC plan the local authority must arrange its provision”.

There was no evidence before me that the defendant had carried out any formal assessment to the effect that a reduced level of education would be in DS’ best interest. I accept Ms Hadfield’s submission that, in those circumstances, where educational provision is required under section 19, it must be full time, on a par with mainstream schooling and in line with the EHC plan.

Both the new and the original EHC plan provided that DS should be educated at a school; DS was not being so educated. The provision of a maximum of 10 hours educational assistance a week does not, in my judgment, constitute full time education, even when taken with the offer to provide “outreach” from Tettenhall Wood School. The log produced by the Nightingale Centre demonstrates that the EHC plan was not being fully addressed. I note, in particular, that DS was not receiving educational provision sufficient to meet the requirements for cognition and learning set out in section E3-E4 of the EHC plan.

It follows that, had I found that the defendant authority was under a duty to make alternative provision for DS’s education, I would have found that they had failed in their attempts to do so. However, for the reasons set out above, I have concluded that they were not under such a duty because Tettenhall Wood School remained suitable and available for him.

In those circumstances, this application for judicial review must fail.

I note that the new plan provides for DS to attend Wightwick Hall School and that he can be accommodated there from 10 July 2017.