R G v WESTMINSTER COUNTY COUNCIL
| Jurisdiction | England & Wales |
| Judge | GEORGE BARTLETT QC |
| Judgment Date | 28 August 2003 |
| Neutral Citation | [2003] EWHC 2149 (Admin) |
| Date | 28 August 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3712/03 |
[2003] EWHC 2149 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
George Bartlett Qc
CO/3712/03
MR I WISE AND MRS P SPARKS appeared on behalf of the CLAIMANT
MISS S J DAVIS appeared on behalf of the DEFENDANT
In this case the claimant, a minor aged 15, by his father seeks permission to apply for judicial review to challenge what is said to be the failure of the Defendant Council to provide suitable education for him in accordance with section 19 of the Education Act 1996.
The claimant began attending Saint George's Catholic School, Lanark Road, London in December 2001. In February 2002, the education welfare officer had a meeting with the claimant and his father, who expressed unhappiness with the school and said that the claimant was being bullied. As a result, the claimant was referred to the Marlborough Family Service for psychiatric support. In March 2002 the claimant was asked to stay at home from school after two separate incidents of aggressive and threatening behaviour.
Following a meeting at the school on 8 March 2002, which was attended by the claimant's father, the deputy headteacher and the education welfare officer, it was agreed that the claimant would return to school the following Monday and that arrangements would be made for him to spend some time in the Learning Support Unit. The claimant was referred to Marlborough Family Service in March 2002, and was seen after that by a consultant psychiatrist, Doctor Varchevker and a medical health worker.
In March 2002, the claimant's father applied for a place at Finchley Catholic High School, and the education welfare officer wrote a letter in support of that application, but the school was over-subscribed and was unable to offer the claimant a place.
In September 2002 the claimant was seen by a doctor in his local general practice, who recorded a graze on his cheek and a bruised upper lip. The claimant had said that this was due to bullying at school. On 7 October 2002 the claimant was excluded from school for a fixed term of 7 days for assaulting female pupil.
Some days later there was a meeting at the school between the head treacher, the education welfare officer and the claimant's father. Two days after that on 18 October 2002, the solicitors for the claimant wrote to the Education Authority saying that the claimant's father had no option but to withdraw the claimant from school. They requested section 19 support and details of other schools.
On 31 October 2002 formal notification was given to the school that the claimant would not be returning because, as it was said, the relationship between the school and him had irretrievably broken down due to persistent bullying, as a result of which the claimant had suffered depression, stress and weight loss. The council's response was immediate. They said that they had no duty to provide section 19 support for the claimant as he had not been permanently excluded and he remained on the school roll.
On 11 February 2002 the claimant attended Marlborough House for the purpose of education, but difficulties arose in relation to that, firstly, because the attendance of his father was required and owing, particularly, I think, to his father's medical condition, that did not seem acceptable to the father. Secondly, there was what the claimant saw as inadequate opportunity for his preparation for GCSE.
After that difficulties continued in relation to both Marlborough House and to the wider problems and disagreements between the claimant and the council and on 16 July 2003, the claimant's solicitors having written to the council, the director of Legal and Administrative Services wrote to them as follows:
"Further to my letter of 9 July I understand that G's review took place yesterday, although Mr G was unable to attend.
As you know, it is the City Council's view that it has no statutory obligation to provide education otherwise to G in circumstances that he was removed from St George's School on a voluntary basis. Without prejudice to the above however, the City Council has attempted to engage with Mr G with a view to resolving the matter of G's future education and, as you know, offered G a place at the Marlborough Education Unit and has been providing tuition for G on an interim basis by the Council's Hospital and Home Education Service.
As you also know, all the education professionals involved with G agree that it would have been in G's best interests that the offer of the place at the Marlborough Education Unit was accepted with a view to his being able to be re-integrated into mainstream provision in September. Mr G has however rejected this offer by his refusal to attend with G.
I understand that the Hospital and Home Education Services does not consider that there is a "medical" need for their continued involvement with G and will not therefore be offering further tuition after the end of this term.
The responsibility of G's future education therefore remains with Mr G who continues to have a duty to ensure that G receives suitable full time education either by returning G to St George's, enrolling G at an alternative scool or making arrangements for G to be educated at home at Mr G's own expense.
If Mr G intends returning G to St Georges's, he should contact the Deputy Headteacher, as soon as possible to make arrangements for this to happen. The Autumn Term at St George's begins on 4 September next."
Over the months there has been numerous assessments of the claimant and his difficulties. He had been seen by doctors on a number of occasions, most recently in January 2003. On that occasion one of the doctors at his general practice expressed the view that the claimant would benefit from individual tuition on medical grounds. The note said:
"He has been seen regularly at the surgery with problems related to bullying and is suffering from depression."
That note was written on 7 January 2003. On 30 January 2003, the consultant psychiatrist, Doctor Varchevker and the primary mental health worker, who had been seeing him, wrote a letter to the council that included the following:
"We are monitoring his mental state, as we are aware he was seriously depressed and had a suicidal ideation 2 years ago. The recent incident which resulted in G being suspended for a week has had a strong effect on his mental state. A combination of earlier abuse and shaky self esteem makes him vulnerable emotionally. He is extremely sensitive to perceived rejections, teasing and bullying and responds impulsively by hitting out. G is aware of these issues and wants individual therapy."
Then later:
"He has been out of school for three months. His father is trying to find a suitable school using the list of five schools recommended to him by the Education Department. In the meantime, G is not receiving any formal education. G has lost hope that a school will be found for him. He is worried about being behind with his course work and that he would not manage to go through any of the GCSE exams. He is anticipated failing educationally. We strongly recommend that G receives some tuition that would help him towards being re-integrated into main steam education. This would also improve his self esteem and faith in the educational system."
The application for judicial review was issued under the urgent protocol on 4 August 2003, and was considered on the papers by Mr Philip Havers QC sitting as a deputy High Court Judge. The application was adjourned to open court.
The case for the claimant is based on the provisions of section 19 of the 1996 Act, subsection (1) of which provides:
"Each local education authority shall make arrangements for 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."
For the claimant, Mr Ian Wise submits that the Local Education Authority are, on the facts, under a duty to make arrangements for the claimant under this provision. He puts the argument on two alternative bases. Firstly, he says that the claimant falls within what he calls the catch. All category of children who are not at school for reasons otherwise than because of illness or exclusion. Alternatively, he says that the claimant falls within the illness category due to his depression and the stress caused by bullying. For the council, Miss Sarah Jane Davis submits that he falls into neither category.
Let me first deal with the illness category, which I can do quite shortly. The most recent medical reports date from January 2003. The fact that they are, therefore, some 7 months or so old does seem on that account alone to be insufficient to found a case based on the claimant's state of health at the time the council took the decision expressed in the letter of 16 July, in...
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