1. The recent case of R (KS and Ors) v LB of Croydon clarified the correct test which must be applied when determining what constitutes suitable education pursuant to s19, Education Act 1996
2. The case involved 3 claimant unaccompanied asylum seeking children, all 14 years old, all in foster care provided by the local authority pursuant to s20, Children Act 1989. Thus all three are ‘looked after children’. All had been looked after by the local authority since at least end of November / early December 2010. None of them, by the time judicial review proceedings were issued in early September, had been in full-time education or at all.
3. Two of the claimants, NA and ZU, had been placed previously on an English language course for 12 weeks and 6 weeks respectively. KS had had no education.
4. The Claimants’ claim that LB of Croydon has failed:
- To provide them with suitable full-time education as required by section 19 of the Education Act 1996 (the s.19 point, Issue 1), and
- Comply with its duties under ss 13 & 14 of the 1996 to ensure that efficient secondary education is available to meet the needs of its population and secure sufficient schools for providing secondary education in its area (the ss.13 & 14 point, Issue 2)..
5. It will be seen from the outset that the two issues are inextricably interlinked; it is the failure of D to ensure that it has sufficient secondary schools that has led to D’s failure to provide education for the Claimants which has in turn led to the breach of the statutory duty specifically owed to the Claimants by s.19.
S19 of the Education Act 1996
6. S19, EA 96 is a “longstop”. Its purpose is clear; to ensure that all children of compulsory school age receive suitable education at school or otherwise than at school. Thus it matters not what the reason a child may not be in mainstream education – either by reason of illness, exclusion or otherwise. S19 is the catch-all safety net so that no child of compulsory school age is without education.
7. The “suitable education” that s.19(1) requires is defined in s.19(6): “efficient education suitable to his age, ability and aptitude ...”. As one would expect this is referable the circumstances of the individual child.
8. The previous version of s19, EA 96 specified in s19(1) that “Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school…”
9. The phrase “full-time or part-time” was repealed by way of an amendment of the Education Act 1997.
10. The section is silent on whether the education provided under s19 has to be full-time.
11. However, see DfES Circular 7/90 which states as follows:
Age Suggested minimum weekly lesson times
5-7 21 hours
8-11 23.5 hours
12-16 24 hours
12. Reading into ‘suitable education’ arguably, the minimum weekly lesson times provide a guide to what ‘suitable’ entails. Certainly as Is stated at s19(6), what is suitable will also have to be adjusted to the aptitude, age and ability of the child and any special educational needs he may have. So it is of course possible for the curriculum to be differentiated and the hours to be reduced / increased accordingly.
13. That ‘suitable education’ primarily must be full-time education can find its support in the amendment to s19 by way of the Children , Schools and Families Act 2010:
[(3A) In relation to England, the education to be provided for a child in pursuance of arrangements made by a local authority under subsection (1) shall be—
(a)full-time education, or
(b)in the case of a child within subsection (3AA), education on such part-time basis as the authority consider to be in the child's best interests.
(3AA)A child is within this subsection if the local authority consider that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child.]
14. S19(3A) and s19(3AA) are not yet in force but it is telling that there is the necessity, for clarity’s sake, to define education as full-time education.
The outcome of KS
15. The s19 point in the KS case was considered by Lindblom J on 19/ 20 October 2010. The Claimants’ contention was that the language course was not suitable education within the meaning of s19, EA 96.
16. The reason it is not s19, EA 96 is because the decision reached that a language course is all the claimant children should receive is not one done by way of consideration of each individual child’s age, aptitude and ability, as is required under s19(6).
17. The Defendant local authority contended that most unaccompanied asylum seeking children arrive with little education, some are illiterate, majority do not speak English. Thus an English language course is the most appropriate course of education.
18. The judge considering the facts of each individual claimant child found that whilst it is in principle conceivable in fact-specific circumstances that a language course could amount to s19 EA 96 suitable education, it is not so in the cases of these three claimants.
19. It is not so because the local authority did not put its mind to the educational needs of each individual claimant.
20. To arrive at a conclusion as to ‘suitable education’, the local authority had to put its mind to the age, aptitude and ability of each claimant child before arriving at a conclusion as to what suitable education for that specific child is.
21. A declaration that the LB of Croydon breached its s19, EA 96 duty was made with an order for an educational assessment to be carried out in respect of each claimant child to determine what suitable s19 education ought to be provided to each of them.
Practical Implication
21. Although it may have seemed obvious that s19(6), EA 96 imported a requirement on a local authority to assess the educational needs of the child in order to determine what constitutes s19 suitable education for the child, plainly as the facts of the KS case illustrate, local authorities have not in fact done so.
22. It is possible that the failure of local authorities to do so is highlighted by the facts of the specific claimant children in KS, all three being unaccompanied asylum seeking children.
23. Certainly, it would seem from the approach of the local authority in KS, a sweeping assumption was made about unaccompanied asylum seeking minors being either illiterate / poorly educated; non-English speakers; and thus no practical benefit can be gained by putting them in mainstream education.
24. That approach can no longer stand post-KS.
25. For 16-18 year olds, the Apprenticeship, Skills, Children and Learning Act 2009 will insert into the Education Act 1996, additional entitlements to core education (such as English, Maths / Numeracy) when it comes into force: see ss17A-D, EA 96. This could make for further interesting arguments in respect of the duties owed by local authorities to this new cohort of children and the interplay with s19, EA 96.
Note: The second part of KS, on ss13-14, remains undetermined. Lindblom J adjourned that aspect of the case for a further hearing, no hearing date yet.
