R (M) v Haringey Independent Appeal Panel (Secretary of State for Schools, Families and Children intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Sir David Keene,Lord Justice Rix |
| Judgment Date | 12 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1103 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/2405 |
| Date | 12 October 2010 |
[2010] EWCA Civ 1103
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Lord Carlile Of Berriew Qc, sitting as a deputy judge of the High Court
Before: Lord Justice Rix
Lord Justice Wilson
and
Sir David Keene
Case No: C1/2009/2405
Mr Oliver Hyams (instructed by Corporate Legal Service, Haringey LBC) appeared for the Appellant
Mr Ian Wise QC and Mr Stephen Broach (instructed by John Ford Solicitors, London N4) appeared for the Respondent
The Intervener made written submissions to the court but did not appear
Hearing date: 28 April 2010
This appeal requires the court to address provisions of the School Admission Appeals Code (“the code”), which was issued by the Secretary of State for Children Schools and Families pursuant to s.84 of the School Standards and Framework Act 1998 and which came into effect on 10 February 2009.
The respondent, M, applied for judicial review of the dismissal by the Haringey Independent Appeal Panel (“the panel”) of her appeal against the refusal of Haringey LBC (“Haringey”), as the local education authority, to allow her daughter, MC, to attend the school of her preferred choice (“the PC school”) with effect from September 2009. By order dated 16 October 2009 Lord Carlile of Berriew QC, sitting as a deputy judge of the High Court, Queen's Bench Division, Administrative Court, declared that the panel's decision had been unlawful and he quashed it.
The judge's judgment, numbered [2009] EWHC 2427 (Admin) and reported at [2010] ELR 218, has been controversial; his interpretation of the code has caused surprise. Thus, when the panel launched an appeal to this court against his order and secured permission to bring it, the Secretary of State successfully applied to intervene in it. But he had indicated that, if allowed to intervene, he wished to make submissions on the meaning of the code only in writing. So he did not appear at the hearing of the appeal.
At the conclusion of the hearing of the appeal, which took place on 28 April 2010, Rix LJ announced our decision, namely to allow the appeal and to set aside the judge's quashing order. But we reserved our judgments.
At the hearing we were told that:
(a) MC has been attending another school in Haringey (“the X school”) “under protest”;
(b) following the judge's quashing of its decision, a freshly constituted panel conducted a rehearing of the appeal and dismissed it; and
(c) M has applied for judicial review of that second decision but the application has been stayed pending determination of the panel's appeal to this court.
In the light of our decision it is hard to imagine how she can proceed with that application.
MC was born on 18 March 1998. She and a half-brother live with M in Haringey. She was due to transfer from primary to secondary school in September 2009, when aged 11. In October 2008 M applied to Haringey for MC to be allocated a place in a secondary school. M said that her preference was first for the PC school (which is about a mile and a half away from her home) and second for the X school (which is about a mile away from it).
The PC school is very popular. Its Published Admission Limit (“PAL”) is 243 pupils each year. It is frequently over-subscribed. In cases where there are more applications to attend a particular school than places available at it Haringey applies its published admission criteria. “Priority”, it says, “will be given in the following order”; and then five categories of children are identified. The second is as follows:
“(b) Children who the Authority accept have an exceptional medical, social or educational need for a place at the school. Applications will only be considered under this category if they are supported by a written statement from a doctor … or other appropriate independent professional. In each case, the connection between the child's need and the specific school applied for must be clearly demonstrated.”
In her application to Haringey M claimed that MC fell into the second category of children identified in its admission criteria. She claimed that MC had an exceptional medical, social or educational need for a place at the PC school. In reality, however, her case was that MC's exceptional need was social rather than medical or educational. The context of it was that, so M said, she and MC had lived on the fringes of gang warfare and remained at risk of being caught up in it, including at the hands of other family members. M stated that in 2003 and 2004 she and MC had had a traumatic time during which they had been harassed and intimidated; that threats, including a threat to shoot M, had been made against them; and that false claims had been made that M was a drug-dealer. M stated that, as a result, she and MC had been forced to flee their home and had remained living in a hostel for more than a year, while their home was made more secure; and that she, M, had suffered a nervous breakdown. M said that MC had been bullied at her first primary school but had then moved to one more satisfactory for her. M enclosed copies of five letters to her from the police, sent between 2002 and 2007, each expressing concern that she had been the victim of a crime. She also enclosed a letter from the family's GP, who wrote:
“[MC] has suffered bullying and harassment at [her first primary school] from which her mother had to transfer her to another school out of the area …
I saw [MC] and her mother during that time when both of them were victims of harassment by neighbours. [MC] in particular suffered at the school from which her mother removed her. I believe that [MC] needs to be at a school which is away from her present neighbourhood and area so that bullying and harassment from the same people is minimised.”
It is important to note that, where the parental preference is for an oversubscribed school, local education authorities are required to do more than to apply their published admission criteria. Subject to exceptions, s.86(2) of the School Standards and Framework Act 1998 requires them to comply with the parental preference. The relevant exception is provided by subsection (3)(a), namely “if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources”.
By letter dated 2 March 2009 Haringey offered M a place for MC at the X school and said that it had not been possible to offer her a place at the PC school. The basis of the rejection of M's claim that MC had an exceptional social need to attend the latter was that Haringey did not accept that it was better placed than other schools to meet MC's needs and, specifically, that the GP's letter supported MC's admission not to any particular school but only to one outside her immediate neighbourhood. In its letter Haringey made no reference to its duty under s.86(2) of the Act of 1998.
Pursuant to s.94(1) of the Act of 1998 M appealed to the panel against Haringey's refusal to award MC a place at the PC school. Haringey put before the panel a letter from the headteacher of the PC school. He wrote that an increase in the number of pupils beyond that set by the PAL would endanger the safety as well as the success of the school. He gave details about already cramped conditions in classrooms (particularly when practical subjects like Design and Technology, which require more space, were taught), bottlenecks on stairways and a need to spread the service of lunch to times when pupils should be at work; and he spoke of unfair pressure on staff. Haringey also put before the panel a statement of its position, including a claim to be relieved of its duty under s.86(2) of the Act of 1998 to comply with M's preference on the basis that compliance would prejudice the provision of efficient education and the efficient use of resources at the PC school.
Section 84(1) of the Act of 1998 requires the Secretary of State to issue a code for school admissions containing such provision as he thinks appropriate in respect of the discharge of the respective functions of local education authorities and appeal panels. Subsection (3) of s.84 provides that “it shall be [their] duty … to act in accordance with any relevant provisions of the code”.
The third chapter of the code is entitled “Reaching Decisions on Appeals”. The first few paragraphs appear substantially to be based on such analysis of the duty of appeal committees (as they then were) cast upon them by the precursor to s.86(2) of the Act of 1998 as was valuably offered by Forbes J in the Administrative Court of the Queen's Bench Division in R v. South Glamorgan Appeal Committee ex p Evans on 10 May 1984 (unreported) and was generally endorsed by Woolf LJ in the Divisional Court of the Queen's Bench Division in R v. Commissioner for Local Administration ex p Croydon LBC [1989] 1 All ER 1033.
Paragraph 3.1 of the third chapter of the code opens with the statement that, other than in a situation which is irrelevant for present purposes, “panels must follow the two-stage process as set out below for all appeals”.
Paragraph 3.1(a) then provides:
“a) First Stage: establishing the facts, at which the panel considers whether the school's published admission arrangements:
i. comply with the mandatory requirements of the School Admissions Code and Part 3 of the SSFA 1998.
ii...
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