High Court considers a local authority’s duty to provide education for a pupil with EHCP

The High Court has recently considered whether a local authority had discharged its statutory duties to provide education to a child with special educational needs and an Education, Health and Care Plan (EHCP), where the child’s existing educational placement has broken down and an alternative placement was offered.

The judgement provides useful guidance for local authorities and academies dealing with difficult cases where safeguarding, behaviour, SEND provisions and the availability of alternative education intersect.

The facts

The claimant was a 16-year-old child with special educational needs. Southwark Council maintained an ECHP for her which named Evolve Academy. The academy operated two sites in South London: West Norwood and Kennington. The EHCP did not specify which of its sites the claimant was to attend.

The claimant had attended the West Norwood site during 2025. During the latter part of that year, however, there were increasing concerns regarding her behaviour, including concerns relating to attendance, cannabis use, vaping, peer exploitation and intimidation, the safety of other pupils, staff safety and persistent difficulties in the relationship between the pupil’s parents/guardians and the academy.

Accordingly, the academy and the local authority considered a number of alternatives. These included education at the Kennington site, temporary community-based tuition and a different school placement. The claimant refused to attend the Kennington site because she believed it was unsafe. That arose principally from an earlier incident in Peckham in which she and her grandmother had been threatened. The claimant consequently received very little formal education during the spring and summer terms of 2026, although she returned to West Norwood for the purpose of sitting her GCSE examinations. She brought judicial review proceedings against Southwark, with Evolve Academy as an interested party.

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The Legal Framework

Three duties were central to the claim.

Section 19 Education Act 1996

Section 19 requires a local authority to make arrangements for suitable education, at school or otherwise than at school, for children of compulsory school age who may not otherwise receive suitable education because of, amongst other things, illness or exclusion.

The parties accepted that the question under section 19 was whether the education offered was “reasonably practicable” for the claimant. The court drew on R(G) v Westminster City Council [2004] EWCA Civ 45, which establishes that where suitable education has been made available and is reasonably practicable, but the child does not take advantage of it, the authority will not necessarily be in breach of section 19.

Section 42 Children and Families Act 2014

Section 42 places an obligation on a local authority maintaining an EHCP to secure the specified special educational provision for the child or young person. The court emphasised that this is an absolute duty rather than merely a duty to use best endeavours.

Section 43 separately imposes a duty on an educational institution named in an EHCP to admit the child, although that provision expressly preserves the institution’s power to exclude.

Article 2 of Protocol 1 ECHR

The claimant also relied on Article 2 of Protocol 1 to the European Convention on Human Rights (A2P1), which protects the right to education. The court noted that the question is whether the circumstances amount to a denial of effective access to education. The assessment is highly fact-sensitive and may include matters such as the child’s educational history, duration of the absence from education, alternative provision offered and the particular circumstances of the child and family.

Decision

The judge carefully considered the evidence concerning the alleged safety risk. The claimant and her grandmother had genuine concerns, and those concerns had been communicated to the local authority by the claimant’s social worker. However, the court found that there was no evidence of a specific threat to the claimant at the Kennington site. The police responsible for school safety had considered the issue and did not identify a specific risk associated with the claimant attending the Kennington site. The academy also undertook a formal written risk assessment which concluded that risks at Kennington could be managed. The court therefore concluded that the local authority was entitled to regard the Kennington site as reasonably practicable.

The court considered the period between the claimant being refused access to West Norwood and the full-time offer at Kennington on 9 February 2026. On 6 January, the claimant was offered interim education at Kennington. The academy had also proposed supervised tuition, while the wider position was considered. The judge was satisfied that suitable interim education had been offered during this five-week period.

The A2P1 clam also failed. The judge found that the claimant had been offered reasonably practicable education and, in any event, the local authority had taken sufficient steps to provide alternative education. Those steps included investigating non-school tuition and investigating another school placement.

The court therefore concluded that Kennington was an option which the local authority was lawfully entitled to offer and which the claimant could reasonably have been expected to attend. Her decision not to attend did not make the local authority responsible for the resulting absence from education.

Lessons

The judgement has important practical implications for academies. Firstly, where a placement breaks down, alternative arrangements must be considered at an early stage. In this case, the academy did not simply stop the claimant’s education. It proposed an alternative site and interim community-based tuition while the longer-term position was being considered.

Secondly, safeguarding concerns must be properly investigated. The academy sought external advice, including police input and carried out a formal risk assessment. This evidence was important to the court’s conclusion that the alternative placement was reasonably practicable.

Thirdly, academies should consider reasonable measures to make an alternative placement accessible. The offer of dedicated transport and adjusted start and finish times, strengthened the court’s conclusion that the proposed education was reasonably practicable.

If you are managing a complex exclusion or difficult behavioural issues with pupils will SEND, our Education team has significant experience and can support you.