Chandler v Camden London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Forbes
Judgment Date13 Feb 2009
Neutral Citation[2009] EWHC 219 (Admin)
Docket NumberCase No: CO/11496/2007

[2009] EWHC 219 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Before:

The Honourable Mr Justice Forbes

Case No: CO/11496/2007

Case No: CO/3986/2008

Between
Gillian Chandler
Claimant
and
The London Borough of Camden
Defendant
and
(1) University College London
(2) The Secretary of State for Children, Schools and Families
Interested Parties
Between
Gillian Chandler
Claimant
and
The Secretary of State for Children, Schools and Families
Defendant
and
(1) University College London
(2) The London Borough of Camden
Interested Parties

Rhodri Thompson QC and David Wolfe (instructed by Leigh, Day & Co) for the Claimant

Clive Lewis QC and Miss Holly Stout (instructed by Ms Ros Alexander, LB Camden, Legal Services) for the London Borough of Camden

The Hon Michael J Beloff QC, Gerard Clarke and Sam Grodzinski (instructed by the Treasury Solicitor) for the Secretary of State

Hearing dates: 5 th, 6 th, 7 th, 10 th and 11 th November 2008

Mr Justice Forbes

Mr Justice Forbes :

1

Introduction. These proceedings are concerned with two separate but closely related claims for judicial review occasioned by the proposed establishment in the London Borough of Camden (“the Council”) of an Academy (“the Academy”) sponsored by University College London (“UCL”) pursuant to section 482 of the Education Act 1996.

2

The first set of proceedings (“JR1”) relates to the claim brought against the Council by Gillian Chandler (“Ms Chandler”) seeking to challenge the Council's decision of 21 st November 2007, described in section 3 of the Claim Form as “a decision not to hold an open competition to decide what secondary school should be built on the Adelaide Road site in Camden but instead to circumvent that process by promoting an Academy to be sponsored by UCL”. UCL and the Secretary of State for Children, Schools and Families (“the Secretary of State”) are both named as Interested Parties in JR1. It is to be noted that the original claimants in JR1 were Ms Deseline Djiayep and Ms Juliet Prew (“Ms Djiayep” and “Ms Prew”). However, on 17 th July 2008 Ms Chandler was substituted as claimant by order of Plender J (see below) in both sets of proceedings for judicial review.

3

On 14 th February 2008, Mitting J. refused permission to apply for judicial review in JR1, following his consideration of the papers. When doing so, he made this helpful observation:

“This claim would be arguable if the decision to establish an academy sponsored by UCL was, or is to be, made by the Defendant, but it is not. The decision whether or not to enter into an agreement with UCL to establish the academy is the Secretary of State's: section 482(1) Education Act 1996. That decision may or may not be challengeable by Judicial Review; but it is not, or will not be a decision of the Defendant. The Defendant is entitled to be consulted: section 482(3) (a); but is not, itself, the authority which conducts the consultation. Paragraph 16 of the (non-statutory guidance) creates no obligation on the Defendant to conduct a competition in circumstances in which the Secretary of State decides to exercise his powers.”

4

On 29 th February 2008, the Secretary of State decided to approve UCL's formal Expression of Interest (as to which, see paragraph 48 below) and agreed to release “feasibility funding” to enable the proposal for the establishment of the Academy sponsored by UCL to be developed further, stating in a letter of even date addressed to the Council:

“During feasibility we expect that you and UCL will continue to develop the detailed vision for the Academy and its key policies, including its admission arrangements, which will be fully in accordance with the Admissions Code of Practice.”

The release of feasibility funding enables UCL to undertake development work on its proposals for the Academy, as an essential first step towards entering in due course into an agreement with the Secretary of State (known as a “funding agreement”) for him to fund the establishment and operation of the Academy, something that has not yet happened in the case of this proposed Academy (for the relevant statutory provisions, see below).

5

On 25 th April 2008, the second set of proceedings for judicial review (“JR2”) was issued. As I have already indicated, on 17 th July 2008 Ms Chandler was also substituted as claimant in JR2, the original claimant having been Ms Prew. In JR2 Ms Chandler seeks appropriate relief by way of judicial review of the Secretary of State's decision of 29 th February 2008, described in section 3 of the Claim form as a decision “to approve the Expression of Interest submitted by the University College of London for Camden academy”. The Council and UCL are both named as Interested Parties in JR2.

6

On 17 th July 2008, the applications for permission to apply for judicial review in both JR1 and JR2 were listed for oral argument before Plender J. (as a renewed application, in the case of JR1). As well as granting permission for the substitution of Ms Chandler as claimant in both sets of proceedings, Plender J granted permission to apply in respect of the first ground of challenge in JR2 (“The EU/Domestic Procurement Challenge”: see below). However, it appears that there was insufficient time to deal with either the remaining grounds of challenge raised in JR2 or the renewed application for permission in JR1. So it was that the parties agreed the terms of a consent order, whereby all such outstanding matters (including any substantive hearing, where permission is granted) were to be “rolled up” with the substantive hearing of the first ground of challenge in JR2 for which Plender J. had granted permission. It is in that form that these proceedings now come before me for determination.

7

The Statutory Framework. The statutory provisions concerned with the establishment of new schools that are relevant to these proceedings are contained in the following three Acts: (i) The Education Act 1996, (ii) The School Standards and Framework Act 1998 and (iii) The Education and Inspections Act 2006.

8

The Education Act 1996: Section 482 of the Education Act 1996 (“the 1996 Act”) makes provision for the establishment, maintenance and carrying on of a particular type of “independent” school in England to be known as an Academy. Section 482 was substituted by section 65(1) of the Education Act 2002 and came into force on 26 th July 2002. So far as material, section 482 provides as follows:

482 Academies

(1) The Secretary of State may enter into an agreement with any person under which –

(a) that person undertakes to establish and maintain, and to carry on or provide for the carrying on of an independent school in England with the characteristics mentioned in subsection (2) and such other characteristics as are specified in the agreement, and

(b) the Secretary of State agrees to make payments to that person in consideration of those undertakings

(2) …

(3) Before entering into an agreement under this section, the Secretary of State must consult the following about the establishment of the school –

(a) the local education authority in whose area the school is to be situated; and

(b) If the Secretary of State thinks that a significant proportion of the pupils at the school is likely to be resident within the area of another local education authority, that authority.

(4) An agreement under this section shall make any payments by the Secretary of State dependent on the fulfilment of –

(a) conditions and requirements imposed for the purpose of securing that no charge is made in respect of admission to (or attendance at) the school or, subject to such exceptions as may be specified in the agreement, in respect of education provided at the school, and

(b) such other conditions and requirements in relation to the school as are specified in the agreement.

(5) A school to which an agreement under this section relates shall be known as an Academy.

(6) …

9

The School Standards and Framework Act 1998: Section 20 of the School Standards and Framework Act 1998 (“the 1998 Act”) deals with new categories of schools maintained by local education authorities (“LEAs”) and, so far as material, is in the following terms:

“20 New categories of maintained schools

(1) Schools maintained by local education authorities on or after the appointed day shall be divided into the following categories –

(a) community schools;

(b) foundation schools;

(c) voluntary schools, comprising –

(i) voluntary aided schools, and

(ii) voluntary controlled schools;

(d) community special schools; and

(e) foundation special schools.

(2) …”

For the purposes of section 20(1), the appointed day is 1 st September 1999: see SI 1998/2083, art. 2.

10

The Education and Inspections Act 2006: Part 2 and Schedule 2 of the Education and Inspections Act 2006 (“the 2006 Act”) is concerned (inter alia) with the establishment of new schools and, pursuant to section 7, empowers LEAs to hold a “competition” with regard to proposals from others for the establishment of such a school (“a section 7 competition”) So far as material, the relevant provisions are as follows:

“Establishment of new schools

7 Invitation for proposals for establishment of new schools

(1) A local education authority in England may publish a notice under this section inviting proposals from persons other than local education authorities for the establishment of any new school falling within subsection (2).

(2) The schools falling within this subsection are –

(a) a foundation, voluntary or foundation special school, other than one providing education suitable only to the requirements of persons above...

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