(1) HPSPC Ltd v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill DBE |
| Judgment Date | 09 December 2022 |
| Neutral Citation | [2022] EWHC 3159 (Admin) |
| Docket Number | Case No: CO/2780/2022 |
| Year | 2022 |
| Court | King's Bench Division (Administrative Court) |
The King (on the application of)
and
[2022] EWHC 3159 (Admin)
Mrs Justice Hill DBE
Case No: CO/2780/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe KC, Sarah Sackman and Aidan Wills (instructed by Leigh Day) for the Claimants
Jonathan Auburn KC and Katharine Elliot (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 24 November 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on 09/12/2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By this claim, issued on 2 August 2022, the Claimants seek judicial review of the process that led to the Defendant's decision, later taken on 19 August 2022, to approve the transfer of Holland Park School (“HPS”) to a Multi-Academy Trust (“MAT”), and that the MAT in question would be United Learning Trust (“ULT”). The effect of the decision is that HPS would cease to exist as a standalone, autonomous academy and would instead become part of a national network of academy schools.
The Holland Park School Parents Collective (“HPSPC”) is a group of around 350 parents and carers of current HPS pupils, formed to discuss the future of the school and to make representations to the HPS Board. A smaller group of parents and carers have formed the First Claimant, a company limited by guarantee incorporated in May 2022. Its individual members have different views as to what is best for HPS but share the view that transparency and proper consultation is essential. Their case is that they have not been properly consulted during the process that led to the decision, in breach of the principles set out in R v Brent LBC, ex p Gunning (1985) 84 LGR 168 and R (Moseley) v Haringey LBC [2014] UKSC 56; [2014] 1 WLR 3947.
The Second Claimant (“the NEU”) is the largest independent trade union for educational professionals in England and Wales. It has 76 members at HPS including teachers, leadership and support staff members. A new arrangement with ULT would be a significant legal change for them and they are very concerned as to how the school would be governed in future if the transfer is effected. They also consider that they have not been adequately consulted during the discussions around the proposed transfer.
The Defendant is the Secretary of State with responsibility for education. The Education and Skills Funding Agency (“ESFA”) is an executive agency of the Department for Education (“DfE”) which oversees the funding of academies. Regional Directors, formerly known as Regional Schools Commissioners, exercise the Defendant's contractual powers in many decisions relating to academies, including in respect of transfers. Some academy-related decisions, such as the ultimate decision in this case, are also made by the Minister.
The Interested Party is HPS's Board of Governors.
By a consent order sealed on 14 October 2022 it was agreed that it was necessary for this claim to follow an expedited timetable and for there to be a “rolled-up” hearing of the permission and substantive stages. This was because if it is decided that HPS should transfer to a MAT, the transfer will need to take place as soon as possible. The Defendant has agreed not to take the irreversible step of signing a new funding agreement with ULT, pending the outcome of this challenge.
The rolled-up hearing took place before me on 24 November 2022. The Claimants relied on witness statements from Ranbir Hunjan, Sebastian Peattie, Shane Leonard, Palmira Morais, Sam Hesketh (all parents at HPS) and Clive Romain (Head of Legal Strategy for the NEU). Sam Hesketh is also one of the elected parent governors on the HPS Board. The Defendant relied on witness evidence from Dame Kathleen Dethridge, the Regional Director (“RD”) for South-East England. The Interested Party relied on witness evidence from Vic Daniels (the current Chair of the HPS Board), but otherwise played no active part in these proceedings. The parties also provided a core bundle of documents and a three volume supplementary bundle.
I am grateful to all counsel for their detailed written and oral submissions. Having considered all the arguments advanced, I find the claim arguable. I therefore grant the Claimants permission. The remainder of this judgment addresses the substance of their claim.
The issues are:
(1) Did the Defendant undertake a consultation which met the minimum legal requirements?
(2) Can the Defendant show that it is highly likely that the outcome would not have been substantially different for the Claimants in any event?
(3) Should the court exercise its discretion to refuse to grant the Claimants relief? The facts
HPS
HPS is a co-educational state secondary school located in the Royal Borough of Kensington and Chelsea (“RBKC”). It serves a diverse local community which characterises this area of central London. It has around 1,400 students. From 1958 it operated as a state maintained comprehensive school.
In September 2013, HPS became an academy school. It is operated by an academy trust, which is a company limited by guarantee, pursuant to a Funding Agreement with the Defendant dated 19 December 2012. Under clauses 13 and 14 of this agreement, the school is governed by a Governing Body who are the directors of the company constituted under the articles of the trust. The trust is a Single Academy Trust (“SAT”), meaning that the trust operates only one academy, HPS.
The December 2014 Ofsted inspection report judged HPS as “outstanding”.
Events from 21 July 2021 — 1 November 2021
On 21 July 2021 the ESFA received a whistleblowing report from 57 former staff members of HPS. They stated that unfavourable Ofsted staff questionnaires had been read by the HPS senior leadership team but not shared with the Ofsted inspectors during the January 2020 inspection. They also raised concerns about a toxic work environment, teachers being bullied, abuses of power, high staff turnover and staff being signed off work due to stress and anxiety. There was press coverage of the issue and the RD was alerted to it.
On 9 September 2021 the ESFA received a further whistleblowing report signed by 117 former HPS students. They indicated that they “recognise[d] the characterisation of [HPS] as a toxic environment” and “believe[d] the allegations made by these former teachers mirror our own experiences our students at the school”.
On 10 September 2021 the then Chair of the HPS Board resigned. HPS made contact with the DfE. The RD commissioned a review of governance at HPS, which identified that (i) there was no Chair in place; (ii) there had been non-compliance with the Academies Handbook because all five HPS members were also acting as trustees, meaning that lines of accountability were unclear; (iii) financial oversight appeared to be weak; and (iv) there were no steps in place to manage the potential conflict of interest arising from the fact that the two parent trustees on the HPS Board were married.
The DfE put forward an experienced academy trust chair as a potential Chair for the HPS Board, together with four further potential trustee candidates. These were all appointed by the HPS Board in late September 2021.
On 22 September 2021 RBKC confirmed that the Local Safeguarding Children's Partnership would be commissioning a learning review in which the concerns with the organisation and culture at HPS would be considered.
Between September and December 2021, seven trustees stepped down from the HPS Board leaving only one parent trustee. Under the HPS Articles of Association, the minimum number of parent trustees is two.
The 2 November 2021 Notice to Improve and the HPS Board's actions in response
On 2 November 2021 the ESFA issued a Notice to Improve (“NtI”) to HPS on the basis that there were “continued concerns relating to the governance and oversight of financial management by the Board prior to [the new Chair's] arrival and that of the other trustees and members in September 2021”. The NtI set out a series of conditions to address these concerns. One of these was “The trust to consider starting the process of moving the school into a [MAT]”. The RD had agreed with the ESFA that this condition would be included because she remained concerned by the issues raised by the former teachers and students and the significant turbulence caused by a resignation of a large number of HPS trustees.
On 22 November 2021 the newly constituted HPS Board instructed an independent investigator from B3sixty to undertake an investigation into the complaints that had been raised by former students and staff.
On 13 December 2021 the HPS Board discussed the condition of considering joining a MAT and agreed to form a working group of four trustees to consider this issue.
On 14 December 2021 at the request of the HPS Board, and in accordance with standard DfE practice, the DfE provided a list of MATs operating in the local area who, based on the DfE's knowledge of their capacity and expertise, could potentially be suitable trusts for HPS to join. The HPS Board reviewed the DfE's list and added other MATs that they thought should also be considered when coming up with their own shortlist.
On 17 January 2022 the HPS Board identified a list of six potential MATs and agreed to explore these options further.
On 1 February 2022 the DfE was informed that the HPS Headteacher would be taking a leave of absence, following a previous period of ill-health absence, and bringing...
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