Challenge over lack of education for child in GCSE year fails in High Court

In LVN, R (On the Application Of) v London Borough of Southwark [2026] EWHC 2254 (Admin) (28 August 2026), Simon Tinkler, sitting as a Deputy Judge of the High Court, dismissed the claim on all three grounds, finding that a second school site was one that the defendant council was “lawfully entitled to offer to [the Claimant]”, and one that she could “reasonably have been expected to go to”.

The claimant in the case was a 16-year-old child, with special educational needs.

The defendant was her local education authority, which maintains an Education, Health and Care Plan (EHCP) for her.

The Interested Party was an Academy which provides education to children at two sites in South London.

The judge said: “The Claimant's EHCP names the Interested Party as the provider of her education but does not require the education to be at a particular site operated by the Interested Party.”

The claimant attended school at one of the sites until the end of 2025.

There were issues at that site relating to the claimant's behaviour. The claimant was, in light of those issues, required by the Interested Party not to attend the original site from the start of the school term in January 2026.

The defendant offered education to the claimant at the second site operated by the Interested Party. That offer was not accepted because the claimant said that this other site was not safe for her.

The defendant offered to consider other alternatives. Those included tuition in a non-school setting. The claimant declined to consider those alternative options.

At the time of the hearing, the claimant had not been in formal education since the start of term in January 2026, other than to return to the first site on days when she was sitting her GCSEs.

The claimant argued that the defendant had failed in its statutory duty to provide education for her, on the following three grounds:

• Ground 1 - Breach of s42 Children and Family Act 2014 ("s42");
• Ground 2 - Breach of s19 Education Act 1996; ("s19"); and
• Ground 3 - Breach of Article 2 of the First Protocol to the ECHR ("A2P1")

In response, Southwark argued that the claims for declarations of unlawfulness had all become academic as the claimant had ended her education at the Interested Party.

The judge said: “The Defendant says that the [second] site was not unsafe and that by making an offer to the Claimant of education there it has complied with all its legal duties to her.

“It says her non-attendance at the [second] site was a voluntary choice that she made. In addition, the Defendant says that it offered interim education, and potentially permanent education, in a non-school setting but the Claimant chose not to consider that offer.”

Considering the arguments, the judge first set out some important factual background.

He said in June 2025, the claimant had been on a bus in Peckham when there was an incident in which the claimant was verbally threatened by another person.

The claimant believed that the person who accosted her was close to a gang who she believed operates in the same area as the academy’s second site.

The claimant reported the incident to the police. No charges were brought following it.

Considering grounds 1 and 2, and whether they were academic, Simon Tinkler said: “The Claimant will move to a different school or college for her education after Year 11. There is a revised EHCP in place for that education. There is no current challenge to that ECHP. The claim for failure to provide education under Ground 1 under s42 therefore only relates to a historical period.

“The Claimant is no longer of compulsory school age. That means that the duty of the Defendant under s19 has ended. Any declaration on Ground 2 also therefore only relates to a historical period.”

The judge added: “It seems to me that this claim became academic [in] June 2026 in relation to s19. It also became academic in relation to s42 on that date when the revised EHCP became the relevant document in relation to the Claimant's education from then on. At that point, in relation to those 2 grounds, there is therefore no ongoing obligation to comply with s19 nor any ongoing challenge to the EHCP.”

Turning to the question of whether the offer of education at the second site was “reasonably practicable”, the judge outlined the following relevant facts:

“i) the Claimant and her grandmother had expressed fears about her safety attending the [second site];

ii) the claimant's social worker had reported these worries to the SEN team responsible for ensuring the Claimant had access to education;

iii) this fear appeared to derived largely, if not entirely, from the Peckham bus incident;

iv) the Claimant was sufficiently threatened by the incident to call her grandmother to meet her from the bus and after she got off the bus both the Claimant and her grandmother were threatened, and the assailant took their photographs;

v) there is no evidence that the attacker or any associate of them made direct or indirect contact with the Claimant after the incident at the time;

vi) there is no evidence that there was any such contact in the 13 months since the incident;

vii) there had not been any other reported incident involving the Claimant being threatened;

viii) the incident was not in [the area of the second school] nor is it said that the assailant on the bus came from [that area] – Peckham is some 3 miles from [there] across densely populated South London;

ix) neither the Claimant, nor the Defendant, nor the Interested Party nor the police identified any person who went to school at the [second] site and who had threatened the Claimant either directly or indirectly;

x) as I understand it, the Claimant had not visited the [second] site and her belief in the risks to her there were, to an extent, based on assumptions rather than actual experience;

xi) the police responsible for the safety of the school told the Interested Party they did not have concerns about the Claimant attending the school; and

xii) the Interested Party is a specialist provider of education services that is familiar with the risks it had to assess and mitigate.”

Taking these facts into account, the judge said: “It was, in my judgment, perfectly reasonable for the education authority to accept the conclusion of the Interested Party, based on police advice, that notwithstanding the concerns expressed by the Claimant and her social worker, the [second] site was an appropriate option.

“The Defendant was entitled lawfully to conclude that it was reasonably practicable for the Claimant to attend the [second] site. The risks related to a single incident some 6 months previously which had been considered by the school, raised with the local police, and factored into an assessment of whether the Claimant could access the education at the [second] site, taking into account the fears expressed by the Claimant. The decision the Defendant made was well within the bounds of the decisions reasonably open to it to make.”

Dismissing the claim on all three grounds, Simon Tinkler concluded: “The sad fact is that at the heart of this case is a child who has missed out on education during an important year of her school life. It is clear to me that the Claimant's grandmother was in a very difficult position. The Claimant clearly wanted to return to [the original school]. Both the Defendant and her grandmother tried to persuade the Interested Party to accept her at [that school]. The Interested Party remained clear, however, that due to the behaviours in 2025 this was not an option that it would offer.

“The site at [the second school] was one that the Claimant did not wish to go to. The evidence shows that she was apprehensive about the school and the area. [The second school] was, however, a school site that the Defendant, taking all the factors into account, was lawfully entitled to offer to her, and one that she could reasonably have been expected to go to. It became even more reasonable when the Defendant offered extra security measures for her. The decision not to go to the [second] site was a choice that the Claimant made.”

Lottie Winson