R (Khundakji and Salahi) and Admissions Appeal Panel of Cardiff County Council and Cardiff County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 13 March 2003 |
| Neutral Citation | [2003] EWHC 436 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 March 2003 |
| Docket Number | Case No: CO/4730/2002 |
[2003] EWHC 436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/4730/2002
Case No: CO/4371/2002
Mr John Friel (instructed by Sinclairs) for the Claimants
Mr Peter Oldham (instructed by Cardiff City Council Legal Department) for the Defendant
The court has before it two claims for judicial review, each with similar facts and raising materially the same issues. Both cases involve children whose parents sought infant class places at Rhydypenau Primary School for the academic year 2002–2003. The admission authority, Cardiff County Council, refused admission and the council's admission appeal panel refused the parents' appeals. It is alleged that the admission appeal panel erred in law, failed to give adequate reasons, reached irrational decisions and failed to take account of the provisions of the European Convention on Human Rights and, in the case of Khundakji, that there was procedural unfairness. The claimant in Khundakji was originally the child's mother but, by amendment, is now the father; the claimant in Salahi is the child's father. The claim in Khundakji proceeds on the basis of re-amended grounds, that in Salahi on the basis of amended grounds.
Facts: Khundakji
An application was made in January 2002 for admission of the claimant's youngest child, Lutfi, to the reception class at Rhydypenau Primary School in September 200The accompanying letter from the claimant's wife explained that she already had two children at Rhydypenau and a daughter at Cardiff High School. Arrangements for taking them to school and picking them up from school would therefore be easier if Lutfi were at Rhydypenau. Further, Lutfi already went to Rhydypenau Nursery.
In a letter dated 22 March 2002 the council explained that the number of preferences received in respect of Rhydypenau exceeded the number of places available and that the matter would have to be referred to a committee. An opportunity was given for additional details to be provided in support of the request for a place at Rhydypenau. In reply, the claimant's wife again gave information about the advantages of Rhydypenau as regards taking her children to school and picking them up, adding that she was a housewife and a part-time PhD student which put more stress on her.
The committee's decision was communicated by letter of 10 May 2002, which stated that it was not possible for the council to admit Lutfi to Rhydypenau for the following reasons:
"(a) Each school has a Standard Admission Number for the relevant age group which in the case of Rhydypenau Primary School is 60. The school is over subscribed, that is to say the number of applications for places exceeds the standard admission number. Applications are considered under the Council's published admission arrangements and this sets the priority for admissions to Community Schools. The Council received a total of 77 preferences and authorised the admission of 60 pupils who are resident within the recognised catchment area of Rhydypenau Primary School.
(b) The Council is also under a statutory duty under the Schools Standards and Framework Act, to ensure that reception classes do not exceed 30 pupils. We cannot offer a place to your child because the admission would cause prejudice to the efficient education or efficient use of resources as a result of the measures we would have to take to comply with the duty to limit the size of infant class sizes. In shorthand this is called 'class size prejudice'."
The claimant's wife lodged an appeal against that decision. In the supporting reasons she referred first to the fact that if Lutfi was unable to join his brother and sister at Rhydypenau she would find it very difficult to get four children to three different schools by 9 a.m. and collect them from school at 3.30 p.m. She had no family in this country to help her with the problem and her husband's health had deteriorated and he had to go to Moorfields Eye Hospital regularly. She herself was a housewife and PhD student, which put more stress on her. She was the kind of person who could not make friends easily, whilst at Rhydypenau she had made a good number of good, supportive and helfpul friends. She was suffering from a depressive illness and a physical problem and felt it would worsen her condition if she had to transport her children between three different schools. Lutfi himself was a sensitive and shy boy who had been going to Rhydypenau Nursery and felt comfortable there, whereas if forced to go to a different school he would feel lonely and isolated. She had no intention of transferring her other children from Rhydypenau to her catchment area, Glyn Coed, for various reasons.
Supporting evidence included a letter from a GP stating that on days when the claimant could not take the children to school, his wife had to do so by public transport. She suffered with depressive illness. The doctor felt that should it become necessary for her to transport her children to three different schools each morning it would have a detrimental effect on her mental health and would be likely to make her condition worse. A letter from Cardiff Children's Services emphasised the immense problems that would be created for her if Lutfi could not attend the same school as two of his older siblings, especially as they were an immigrant family without extended family members in the locality to assist with drop-offs and collections. A letter from the Women Connect First Project, where the claimant's wife was a maths tutor, explained that owing to timetabling constraints the maths sessions could only be allocated in the afternoon period from 1–3 p.m. and it would be almost impossible for her to get to three different schools to collect her children on time.
The council's written statement of case to the panel referred to the statutory provisions and stated that applications had been considered under the published admission arrangements. Places had been allocated to 60 children resident within the catchment area of the school. In referring to the grounds on which the panel might allow the admission of further pupils, the document stated that regard could not be had to "the differential circumstances of individual children in the circumstances of the case".
This appeal and the Salahi appeal were two out of five appeals to the panel against refusal to admit children to Rhydypenau. The first hearing of the appeals took place on 24 June. The claimant and his wife had no legal representation but a number of other appellants, including Mr Salahi, were represented by a solicitor, Mr Charles. He submitted that the council had erred by allocating places automatically to children who resided within the catchment area without considering whether some children living outside the catchment area might have a more compelling case. He also submitted that the failure to consider individual circumstances made the decision unreasonable. Those submissions prompted an adjournment to enable the clerk to the panel to take legal advice.
At the resumed hearing, on 12 July, the council's representative, Mr Fitzgerald, conceded that the council believed that it had no power to admit a further child once the 60 places had been filled. Mr Charles continued to press the point that there had been a failure to consider applications from people outside the catchment area irrespective of whether they might have a stronger case. After hearing the various submissions the panel ruled unanimously that "the [admission] arrangements were not correctly implemented especially in the light of Mr Fitzgerald's admission that they did not consider the circumstances of the parents once they had filled the 60 places". The panel did not accede to the submission that the council's decision was unreasonable.
The panel was advised by its clerk, Mr Anderton, that it should consider individual circumstances and ask itself what a reasonable local education authority might do if the admission arrangements were carried out correctly. In his submissions in this court, Mr Friel said that a distinction has to be drawn between the advice given to the panel and what the panel actually did. In my judgment, however, it is clear that the panel acted on the advice given to it. The panel went on to hear from the council's representative and from the head teacher, who said that the school was bursting at the seams and she did not know what to do if further children were allowed into the school. It considered the personal circumstances of each of the appellants, allowing each in turn to present their case.
The claimant's wife says in her witness statement that within the time allowed she was unable to expand on all the issues in her written case. She explained that due to her husband's health and eyesight problems he was not available to drive the children to school on a regular basis; that her eldest daughter came from a minority Muslim background and also had to be taken to school; that the other two were also taken to school, resulting in trips to two separate schools; and that if the appeal did not succeed, Lutfi would be regularly late for school.
After hearing from everyone, the panel deliberated and then announced its decisions. Two of the appeals were allowed, the others were unsuccessful. A note of proceedings taken at the time, though not purporting to be a verbatim record or transcript,...
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