R G" (by his father & litigation friend"

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date30 January 2004
Neutral Citation[2004] EWCA Civ 45
Docket NumberCase No: C3/2003/1987
Date30 January 2004

[2004] EWCA Civ 45

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR GEORGE BARTLETT QC, DEPUTY HIGH COURT JUDGE)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Phillips of Worth Matravers, Mr

Lady Justice Arden and

Lord Justice Dyson

Case No: C3/2003/1987

Between:
The Queen on The Application of "g"(By His Father & Litigation Friend "r.g")
Appellant
and
Westminster City Council
Respondent

Mr Ian Wise (instructed byMessrs Ashok Patel & Co) for the Appellant

Miss Sarah Jane Davies (instructed byWestminster Council Legal Department) for the Respondant

Lord Phillips, MR :

This is the judgment of the Court.

Introduction

1

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:

"19 Exceptional provision of education in pupil referral units or elsewhere

(1) 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.

(6) In this section "suitable education", in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have."

2

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.

3

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.

4

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.

5

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.

6

The issues explored before us can be summarised as follows:

i) Is G unable to attend St George's by reason of illness?

ii) Is Mr G acting unreasonably in refusing to permit G to continue to attend St George's?

iii) 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?

iv) 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?

The facts

7

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.

8

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.

9

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.

10

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.

11

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:

"[G] had also considerable difficulties at school. He was bullied by fellow students and felt singled out by some teachers. I have not formed the impression of a paranoid reaction, what seems more plausible is that [G]'s attitude invite him becoming target of been bullied (sic) by his peers and rejected by teachers. [G] is a big boy, self-conscious and with a low self-esteem that he tries to hide by adopting an air of superiority. I find him insightful and easy to relate to. …My impression is that there is some improvement at school in terms of how he handles himself under pressure and in the father-son relationship."

12

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.

13

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.

14

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:

"In light of the incidents that our client was experiencing at the school, our client's father had no option but to withdraw him from the school in or around October 2002 following his fixed term exclusion of seven days. Our client has no intention of returning to St George's School as the relationship between our client and the school has broken down. The school failed to take any positive steps in ensuring that the consistent bullying would not continue.

Our client is out of school. You will be aware that the Local Education Authority has a non-delegable duty pursuant to Section 19 of the...

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