R Somerset County Council v The Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 26 June 2020 |
| Neutral Citation | [2020] EWHC 1675 (Admin) |
| Docket Number | Claim No: CO/4907/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 June 2020 |
[2020] EWHC 1675 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE Mr Justice Fraser
Claim No: CO/4907/2019
and
Raj Desai (instructed by the County Solicitor Somerset County Council) for the Claimant
Leon Glenister (instructed by the Government Legal Department) for the Defendant
Owen Williams (solicitor advocate from Clarke Willmott LLP) for the Second Interested Party
The First Interested Party did not attend and was not separately represented
Hearing dates: 10 and 11 June 2020
Introduction
In these proceedings, Somerset County Council (“SCC”) seeks judicial review of a decision dated 16 September 2019 made by the South West Regional Schools Commissioner (“the Commissioner”) to make an academy order permitting Swanmead Community School (“Swanmead”) to become an academy, and join the Bridgwater College Trust i (“BCT”), which is a multi-academy trust or MAT. I shall refer to the decision in question as the Commissioner's decision. The Commissioner's decision was upheld by the National Schools Commissioner (“NSC”) on 20 November 2019.
There are six different grounds relied upon by SCC in these proceedings, which seek to have Commissioner's decision declared unlawful. The Secretary of State, to whom I will refer simply as the Defendant, defends the judicial review proceedings on each of the six different grounds. Further, even if any of the different grounds are upheld, the Defendant challenges whether SCC is entitled to the relief it seeks in any event. This separate aspect of the proceedings is addressed in the section of this judgment headed “Relief” below. It only becomes relevant if SCC succeeds on any of the grounds that are advanced.
The permission stage which is necessary for all claimants to bring judicial review proceedings has been passed in this case, as Swift J granted permission to SCC on all six grounds in an order made by him on 13 March 2020. That was only very shortly before the national lockdown due to the Covid-19 crisis. The challenge by the Defendant in respect of relief to which I have referred at [2] above was argued before Swift J, at that stage being deployed by the Defendant in aid of a submission that permission ought not to be granted in any event (notwithstanding the reasonable arguability of the grounds) because the outcome of the proceedings would be academic. I also address this point further in the section headed “Relief”.
Following the grant of permission, Swift J also made an order for directions so that an expedited hearing of the proceedings could be achieved. This hearing has taken place remotely using Skype for Business due to the ongoing Covid-19 crisis. I am very grateful to counsel for the parties, in particular, for the helpful and constructive way in which they have approached this hearing, and to the solicitors involved too, who have dealt so well with the difficulties presented by dealing with a hearing in this way.
The context in which these proceedings are brought is that SCC was, prior to the Commissioner's decision and during 2019, involved in a formal review of the education provision in the Crewkerne and Ilminster areas of Somerset (I shall refer to this as “the relevant area”). Swanmead is located within the relevant area. Currently, and this was the case both in 2019 and prior to that, the schools in the relevant area have been organised in an historic three-tier system, with first, middle and upper schools. Swanmead is one of these schools.
There are currently in the relevant area two middle schools, namely Swanmead and Maiden Beech Academy. As the name suggests, the latter was already an academy. Swanmead is the only middle school that is not an academy. Middle schools educate children in years 5 to 8. There are seven first schools, which educate children from reception to year 4. The final tier in the three-tier system is upper schools. There is only one upper school in the relevant area, namely Wadham School. Upper schools educate children in years 9 to 13 (if they have a 6 th form, which Wadham does), otherwise years 9 to 11.
There are other alternatives generally in education to the three-tier system, including (but not limited to) what might be seen by some as the traditional model of primary and secondary schools, but also other scenarios, including consolidated schools. Obviously, the same model will not apply across the whole country, which is why different councils have adopted different models. Also equally obviously, population demographics in different areas are different, and change over time. Numbers of pupils will not remain constant, or even approximately similar, over the years. The costs of operating schools can be high, and resources have to be organised in order to achieve efficiency in the provision of education. SCC has a statutory duty (dealt with in further detail below) under sections 13, 13A and 14 of the Education Act 1996 to secure the efficiency of education, to promote high standards and to ensure sufficiency of school places.
SCC accept that all six of the grounds advanced to challenge the lawfulness of the Commissioner's decision are inter-related, as indeed they are. At the heart of all the grounds is the following, which can be stated in summary only at this stage in this judgment, to put what follows in further context. SCC initiated a formal review process in early 2019 to consider the organisation of education generally in the relevant area. That review, which included a process of consultation of viable options for all the schools in the relevant area, was ongoing at the time of the Commissioner's decision. This review was undertaken due to existing problems and challenges in three-tier system in the relevant area. By making the decision when she did and on the material that she did, SCC submit that the Commissioner has had a prejudicial effect upon that review process, and indeed has severely curtailed SCC's options in terms of the entire re-organisation. SCC's position (and this is reflected in one of the specific grounds, Ground 5) is that Swanmead's application for an academy order was made specifically by that school to protect its own specific position within the review. Although Swanmead's position as a middle school will, by virtue of the academy order, be protected, SCC submits that it has wider duties in respect of the provision of education across the area and including all the different schools.
SCC also point out that by making the order and allowing Swanmead to become an academy, BCT (the MAT which Swanmead applied to join) would acquire a legal veto over significant changes to Swanmead which is not currently available. The Defendant relies upon a number of points, but submits that applications for academy status are what it terms “school led”. The Defendant draws attention to the fact that the application for academy status was made by Swanmead itself, and also further submits generally that the Commissioner could not be expected to delay or defer any decision on academy status until the review into schooling in the relevant area had been completed. It is said on the Defendant's behalf that were the Commissioner to be required to do this it “would be providing SCC with an unlawful veto over [the Commissioner's] power”. It also submitted at the hearing that had it delayed consideration of the application by Swanmead, that itself would have been potentially subject to judicial review by the school. It also relies upon co-operation by the MAT following the academy order to meet the point that the legal effect of the order is to give the school (or more accurately, the MAT which it will have joined) a veto over future re-organisation across the whole area.
The final point by way of introduction is as follows. Judicial review does not exist as a mechanism to ask the court to substitute its own decision on the substantive issue that was before the Commissioner. The issue before the court is whether the Commissioner's decision was a lawful one. A great deal of the factual material was aimed at the underlying issues facing SCC generally in the relevant area, and also its re-organisation options. However, all of this can be distilled to the following points. SCC had already initiated a serious and wide-ranging review, and the first stage in that was an independent report (explained further at [14] below) which cost SCC £75,000. That report concluded that the existing three-tier structure was not viable. A number of potential structural changes were identified, but which of those options was to be adopted required consultation, discussion and hopefully consensus amongst the different key stakeholders. It was actually during that consultation process that the Commissioner made the academy order she did. It is this that lies at the heart of this judicial review. This case contains unusual facts.
The facts
I have evidence before me from Mr Farrow, the Head of Education Partnerships at SCC, and Mr De Rivaz, who is the Delivery Team Leader of the Defendant's Regional Delivery Directorate South West, of the Early Years and Schools Group. All of the evidence gives a comprehensive picture of the surrounding circumstances, and has certainly led to a depth of understanding on the part of the court of what occurred, over a period of about nine months in 2019, the period prior to the Commissioner's decision. Not all of the evidence is of...
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