R (Hounslow London Borough Council) v Hounslow School Admission Appeals Panel
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 14 February 2002 |
| Neutral Citation | [2002] EWHC 313 (Admin) |
| Docket Number | CO/5083/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2002 |
[2002] EWHC 313 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Maurice Kay
CO/5083/2001
MR P OLDHAM (instructed by the Borough Solicitor) appeared on behalf of the Claimant.
MR T KERR QC and MS D HAY (instructed by the A & E Smith & Son, Stroud, Gloucestershire) appeared on behalf of the Defendant.
MR J FRIEL (instructed by Messrs Price Watkins, Bristol) appeared on behalf of the interested parties.
This case is concerned with the admission of pupils to Grove Park School, a maintained primary school for which the claimant, the London Borough of Hounslow (“LBH”), is the responsible local education authority. The parents of four unrelated children applied for them to be admitted to the infant class in September 2001. In each case the child in question had an elder brother or sister already at the school. The school is over-subscribed. Subject to certain exceptions, current legislation prescribes the maximum infant class size of 30. LBH operates a policy whereby, in the event of over-subscription, admissions criteria give first priority to children who live in nearby areas—known as priority admission areas (“PPAs”)—rather than to children who have siblings already at the school in question.
This policy, with some minor alterations, has been operated since 1992. When the criteria were applied to the four children with whom this case is concerned, the children were refused admission to Grove Park School by the local education authority. In each case they appealed to the Admissions Appeal Panel for LBH (“the Panel”). All the appeals were successful, the outcomes being notified in letters dated 30th November 2001.
The present case takes the form of an application for judicial review in which LBH seeks to challenge the decisions of the Panel. Because the matter is both complex and urgent Mr Justice Moses directed that permission to apply and any substantive hearing should be considered at the same hearing. Part of the case is a dispute about the relationship between an Admissions Appeal Panel and a local education authority as admissions authority.
The statutory framework
Section 1 of the School Standards and Framework Act 1998 (“SSFA”), together with the Education (Infant Class Sizes) (England) Regulations 1998 impose a limit, subject to certain exceptions, of 30 pupils in infant classes in maintained schools. Section 86(1) provides:
“A local education authority shall make arrangements for enabling the parent of a child in the area of the authority —
(a)to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions, and
(b)to give reasons for his preference”.
Subsections (2) and (3) provide:
“(2) Subject to subsection (3) … a local education authority and the governing body of a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1).
(3)The duty imposed by subsection (2) does not apply —
(a)if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources …
(4) For the purposes of subsection 3(a) prejudice of the kind referred to in that provision may arise by reason of measures required to be taken in order to ensure compliance with the duty imposed by section 1(6) (duty of local education authority and governing body to comply with limit on infant class sizes).”
If a parent is aggrieved by a refusal to admit to the preferred school there is a right of appeal. Section 94(1)(a) provides:
“A local education authority shall make arrangements for enabling the parents of the child to appeal against —
(a)any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions …”
94(5) provides:
“Schedule 24 has effect in relation to the making and hearing of appeals pursuant to arrangements made under this section.
Subsection (6) provides:
The decision of an appeal panel on an appeal under schedule 24 shall be binding on —
(a)the local education authority or the governing body by whom or on whose behalf the decision under appeal was made.”
Schedule 24 ensures that membership of panels is independent of a local education authority; previously this was not the case. Paragraph 12 of the Schedule is in these terms:
“Where the decision under appeal was made on the ground that prejudice of the kind referred to in section 86(3)(a) would arise as mentioned in subsection (4) of that section, 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; or
(b)that the child would have been offered a place if the admission arrangements (as published under section 92) had been properly implemented.”
There also exists a Code of Practice on School Admission Appeals. A panel is obliged to have regard to it by section 84(3). The Code addresses the situation arising from the statutory limit on infant class sizes in the following provisions:
“4.53 There are two main changes which arise from the class size policy. First, admission authorities will not be required to admit a child to an infant class where to do so would conflict with the requirement to comply with the infant class size limit. An admission authority can refuse to admit a child to a school where to do so would cause class size prejudice, that is to say, prejudice to efficient education or efficient use of resources as a result of the measures that would be needed to be taken to comply with the duty to limit the size of infant classes…
4.54 Secondly, the scope of appeals panels to uphold an appeal against non-admission has been limited where the admission authority has refused admission on class size prejudice grounds. For this category of appeal, there will no longer be a two-staged balancing process in determining appeals … Instead, an appeal panel will be able to uphold an admission appeal only if the decision was not one which a reasonable admission authority would make in the circumstances of the case or the child would have been offered a place if the admissions arrangements had been properly implemented.”
In Annex B to the Code it is provided in paragraph B.10:
“In ‘class size prejudice appeals’ … the grounds on which a panel can uphold an appeal are much narrower. Once the admission authority decides that the admission will cause prejudice to efficient education or the efficient use of resources as a result of the qualifying measures which are needed to comply with the class size limit and that this prejudice outweighs the parents’ preference, the appeal panel cannot intervene because it disagrees with the decision that such prejudice has occurred, nor can the panel consider whether or not that prejudice outweighs parental considerations.”
Paragraphs B.12, 13 and 14 provide:
“B.12 In determining the reasonableness of the case, the appeal panel will need to review the decision made by the admission authority made at the time and the reasons for it and to consider whether the admission authority has made a reasonable case for asserting that ‘class size prejudice’ would arise. The appeal panel is not able to substitute its own judgment about whether prejudice has occurred, for example it would not be for the panel to decide that by reorganising the school into mixed age classes it could take in an extra pupil without breaching the limit, but to decide whether the admission authority's case that class size prejudice had occurred was reasonable.”
B.13 The appeal panel can uphold the appeal only if it determines that the authority's decision that class size prejudice would arise was one which no sensible authority, properly appraised of its responsibilities, would have made taking account of such factors as the school's admission policy, the internal operation of the school and its ability to accommodate pupils in compliance with the class size limit.
B.14 A panel might uphold an appeal on this ground where, for instance, the admission authority had not considered whether class size prejudice had occurred but merely stated that it had, and it was clear that the child could be admitted to the school without any such prejudice arising. Where the panel decides that the decision was not unreasonable (in the Wednesbury sense) then it must accept the authorities view and dismiss the appeal on these grounds even though it would itself have come to an alternative view had it been deciding the issues.”
The way in which admission arrangements are devised is controlled by sections 88 and 89. The admission authority, in relation to a maintained school such as Grove Park, is the local education authority; see section 88(1)(a).
Section 89(1) provides:
“The admission authority for a maintained school shall, before the beginning of each school year, determine in accordance with this section the admission arrangements which are to apply for that year.”
Section 89(2) prescribes a process of consultation engaging the local education authority, the admission authorities for all other maintained schools in the relevant area and the admission authorities for maintained schools of any prescribed description. That procedure is governed further by detailed provisions and corresponding regulations....
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