R Hampshire County Council v Independent Appeal Panel for Hampshire and (1) Mr and Mrs K Hulme (2) Mr and Mrs Shrimpton (3) Mr and Mrs Jalonen (4) Miss Warren (5) Mr and Mrs Ramos (6) Mr and Mrs Beeston (7) Mr and Mrs Rushbr
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 31 August 2006 |
| Neutral Citation | [2006] EWHC 2460 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6836/2006 |
| Date | 31 August 2006 |
[2006] EWHC 2460 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Ouseley
CO/6836/2006
MR JONATHAN MOFFETT (instructed by Hamphire County Council, Legal Practice, Chief Executive's, The Castle, Winchester SO23 8UJ) appeared on behalf of the Claimant
MR OLIVER HYAMS (instructed by Bracknell Forest Borough Council, Legal Department, Easthampstead House, Town Square, Bracknell RG12 1AQ) appeared on behalf of the Defendant
This is an application by Hampshire County Council for judicial review of a decision of the Independent Appeal Panel for its area dated 28th July 2006. Hampshire County Council had on 29th June 2006 refused to accept the expressed parental preferences of the seven interested family parties for their children to go to Elvetham Heath Primary School in year 1, starting tomorrow, 1st September 2006. The school refused to accept those preferences on the grounds that there were no places available and it was not possible to offer the child a place at that school. None of the affected children are currently at that school. They are at other schools for their reception year.
A factor of importance in understanding the subsequent decisions is that at Elvetham Heath Primary School it appears that the children would stay not just for the remaining two years of key stage 1, but would also move on for the four years of key stage 2 at that school. There is otherwise real concern at the impact which a change of school at the end of key stage 1 would have for the children.
The adverse decision of the education authority was appealed (by virtue of statutory provisions to which I will come) to the Independent Appeal Panel. That Appeal Panel heard appeals by the seven families on 26th and 27th July, and sent out its decision on 28th July 2006. It is that decision which is under challenge. The hearing before me consists of what is called a rolled-up hearing, that is the permission and substantive hearings are being dealt with together. That is sensible in view of the urgency attendant upon such matters. I am grateful to all parties, including the interested parties, who are present but not represented, and who at times have expressed a desire to be represented, in enabling the matter to be dealt with expeditiously in this court.
I turn to the statutory framework which governs the appeal system first. The Education (Admissions Appeals Arrangements) (England) Regulations 2002 Statutory Instrument No 2899 provide for the relevant appeal arrangements. The appeal arrangements contain two matters which I need to examine. The first is that contained in Schedule 2, paragraph 1(8). This requires the decision of an Appeal Panel and the grounds on which it is made to be communicated by the panel in writing. There is thus a statutory obligation on the Appeal Panel to provide the grounds for its decision. Commonly, although it is not provided by the statute, they are provided at the same time. It is not envisaged by the statute that they be provided by witness statements as adjuncts to responses to judicial proceedings.
The other provision of the regulations relates to the way in which the matter has to be considered. I turn to that after considering the relevant provisions of the School Standards and Framework Act 1988. By section 1, and by associated statutory instruments, there is a restriction on the class sizes of infant classes to 30. That is a statutory limit.
By section 86(1) of the 1988 Act the local authority is obliged to make arrangements for enabling the parent of a child in its area to express a preference as to the school at which he wishes education to be provided, and by subsection (2) the education authority has to comply with a preference expressed in accordance with those arrangements. I add that preferences were indeed expressed in accordance with those arrangements. However the duty to comply with those expressed preferences does not arise, by virtue of section 86(3)(a):
"(a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources; …"
I add that the provision of efficient use of resources is plainly not confined to the provision of education at the school in question, but is capable of ranging more widely.
By section 86(4) a prejudice of the kind to which I have referred "may arise by reason of measures required to be taken in order to ensure compliance with the" statutory class size restriction of 30.
I should refer also to section 88(2), in the light of submissions made by Mr Hyams on behalf of the defendant:
"… 'admission arrangements', in relation to a maintained school, means the arrangements for the admission of pupils to the school, including the school's admission policy."
An indication of the arrangement of the scope of that can be seen from section 86(3)(c), where reference is made to selection by reference to ability or aptitude, but it also commonly covers catchment areas and arrangements for siblings.
The other aspect that I need to refer to in relation to the way in which the panel must consider the matters arises from the 2002 regulations in regulation 6. This provides that the matters to be taken into account by an Appeal Panel shall include the preference expressed by the child and the arrangements for the admission of pupils published by the local education authority. It does not provide any further express limit itself on relevant factors.
By regulation 6(2), where the decision under appeal was made on the ground that prejudice of the kind to which I have referred, that is to say prejudice to the provision of efficient education or the efficient use of resources, would arise as a result of the limit on class size:
"… an appeal panel shall determine that a place is to be offered to the child only if they are satisfied -
(a) that the decision was not one which a reasonable admission authority would make in the circumstances of the case; …"
That statutory framework has been the matter of some judicial consideration, to which I should make reference.
The Court of Appeal considered the general approach to be adopted by a panel, and more specifically the impact of the provisions to which I have just referred, in the case of R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council [2002] EWCA Civ 990, [2002] 1 WLR 3147. True it is that the main aspect of that case concerned the way in which the panel had ventured to consider the reasonableness and lawfulness of the admission arrangements in general. The two points which emerge from the judgment of the Court of Appeal are that the test to be applied by the panel by virtue of the provisions I have been considering is one of perversity, or general Wednesbury principles where those arise. More specifically in relation to the perversity test arising from the provisions of paragraph 6, to which I have made reference, May LJ said that it had been accepted all round that this was a perversity test. The circumstances relevant to the case included the child's particular circumstances, including parental preference, and the admission arrangements. Those had to be considered in the context of the decision not to admit a particular child.
May LJ (with whom the other members of the Court of Appeal agreed) had then considered that the guidance that had then been provided by the Secretary of State for Education (or whatever he then called himself) went rather too far in implying that the powers of the panel were very limited indeed. What May LJ said, in paragraph 58, was as follows:
"58. In my view, these paragraphs misrepresent the relevant legislation and go beyond 'practical guidance'. Mr Oldham was inclined to agree. As I have said, there are situations where a local education authority is obliged by section 86(2) of the 1998 Act to comply with an expression of parental preference. By a combination of subsections (3)(a) and (4), they are not obliged to comply with a parental preference, if to do so would take the size of an infant class above the statutory limit of 30. The fact that the local education authority does not have to comply with the parental preference does not mean that they do not have to take it into account. Nor does it mean that there can be no basis for an appeal against a local authority's decision to refuse admission, if their reason for refusal is that the statutory limit on the size of infant classes would be exceeded. The ground of appeal is that 'the decision is not one which a reasonable admission authority would make in the circumstances of the case'. The 'decision' is the 'decision under appeal', that is the particular decision not to admit the particular child, not, as paragraph B.13 suggests, 'the decision that class size prejudice would arise'. The 'circumstances of the case' must include that child's circumstances. The available ground of appeal is very limited. It has to be shown that the local education authority's decision not to admit the child was perverse, which may be very difficult indeed, if there are more than 30 children competing for admission to the relevant class but the circumstances of the particular child are not irrelevant."
He returned to this matter in...
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