R v Secretary of State for Education and Employment, ex parte Begbie

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PETER GIBSON,LORD JUSTICE LAWS,LORD JUSTICE SEDLEY
Judgment Date20 Aug 1999
Neutral Citation[1999] EWCA Civ J0820-10,[1999] EWCA Civ J0820-1
Judgment citation (vLex)[1999] EWCA Civ J0820-3
Docket NumberQBCOF 1999/0782/4

[1999] EWCA Civ J0820-1

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CROWN OFFICE LIST

(MR JUSTICE MAURICE KAY)

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Peter Gibson

Lord Justice Laws

Lord Justice Sedley

QBCOF 1999/0782/4

Regina
and
The Department Of Education And Employment
Respondent
Ex Parte Heather Charis Begbie (by Her Mother And Litigation Friend Rachel Begbie)
Claimant/Appellant

MICHAEL BELOFF QC & PHILIP ENGELMAN (Instructed by Teacher Stern Selby, London, WC1R 4JH) appeared on behalf of the Appellant

PHILIP HAVERS QC & NEIL GARNHAM (Instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent

1

LORD JUSTICE PETER GIBSON: The Appellant, Heather Begbie ("Heather"), appeals with the leave of Maurice Kay J. from his dismissal on 10 July 1999 of her application for judicial review of the decision of the Secretary of State for Education and Employment not to permit her to continue with her assisted place at the Leys School, Cambridge ("The Leys"), for the duration of her secondary education. We are told that this is a test case and that between 1,200 and 1,500 children are in circumstances similar to those of Heather. The issues raised are therefore of some general importance.

2

The facts are these. Heather was born on 7 July 1988. She lives with her parents in Cambridge. She went to a local primary school. But that did not serve her well and in February 1997 it failed its OFSTED inspection. Heather's parents accordingly sought to transfer her to The Leys. It has an integral junior school known as St. Faith's. The Leys is an independent school and at the time it was a participant in the Assisted Places Scheme ("the APS"). The APS is a scheme whereby some pupils at independent schools have their school fees paid out of public funds. It originated under the terms of the Education Act 1980. Until 25 August 1996 the APS was only available to those over the age of 11 receiving education at schools providing secondary education, but on that date the APS was extended to children who had attained the age of 5 years and received education at schools which provided both primary and secondary education (reg. 3 the Education (Assisted Places) (Amendment) Regulations 1996, amending reg. 5(1) the Education (Assisted Places) Regulations 1995). Those within that extension have been referred to as "the first tranche". On 4 April 1997 the APS was further extended to apply to primary schools by virtue of s. 1 Education Act 1997. Those within that further extension have been referred to as "the second tranche".

3

Before 1 November 1996 the Labour Party, then the Opposition, made it clear publicly that if it regained power it would dismantle the APS so as to redirect the saving in public expenditure towards reducing class sizes in the public sector of education. That day Mr. Tony Blair MP, the Leader of the Opposition, caused a letter to be written to an interested parent, Dr. Tillson, about the Labour Party's proposed policy on the APS, in which it was said,

"We do not believe the scheme is a good use of inevitably scarce resources …. However, we do not wish to disrupt the education of individual pupils and any children already on the scheme will continue to receive support in their education."

4

Other similar statements were made on behalf of the Leader of the Opposition to an interested grandparent, Mrs. Treadwell, on 6 December 1996 and to an interested parent, Mrs. Williams, on 27 January 1997. Also on 27 February 1997 Mr. John Trickett MP wrote to one of his constituents who was a parent of a child with an assisted place at a school with an integral junior school, Mrs. Brookes, outlining Labour's policy on the APS, and saying:

"David Blunkett's office have confirmed that Labour will honour those existing places which have already been given; your child will not be forced to move school."

5

On 24 February 1997 The Leys offered Heather a place on the basis of the APS. The offer was for a place at St. Faith's in the autumn term 1997 for four years to be followed by a move to The Leys in the autumn term of 2001. That offer was accepted by letter dated 27 February.

6

On 1 April 1997 the Shadow Minister for Schools, Mr. Peter Kilfoyle MP, wrote a letter ("the Kilfoyle letter") to the Chairman of the Independent Association of Preparatory Schools ("the IAPS"), stating:

"I shall try to resolve any confusion between us.

Much will obviously depend on the school to which a child has been admitted. If a child has a place at a school which runs to age 13, then that place will be honoured through to 13.

Similarly, we will honour an assisted place given to a child at secondary school and who remains at school until the age of 18. However, as you will recognise, we have made it absolutely clear that no new assisted places will be awarded under a Labour government."

7

On 4 April 1997, the Education Act 1997 was passed, extending the APS to primary schools. On 1 May 1997 the General Election took place and the Labour Party formed the new government. One of the first pieces of legislation enacted thereafter was the Education (Schools) Act 1997 ("the 1997 Act"), which came into force on 31 July 1997.

8

By s. 1 the APS was abolished. S. 2, headed "Transitional arrangements for existing assisted pupils", contained the following provisions:

"(1)A former participating school may provide assisted places at the school for the 1997–98 school year or a subsequent school year, but may only do so -

(a) for existing assisted pupils at the school; and

(b) subject to and in accordance with subsection (2) and regulations under section 3.

(2)If a pupil is provided with an assisted place under sub-section (1) at a time when he is receiving primary education, he shall cease to hold that place -

(a) at the end of the school year in which he completes his primary education; or

(b) if the Secretary of State, where he is satisfied that it is reasonable to do so in view of any particular circumstances relating to that pupil, determines that he should continue to hold that place for a further period during which he receives secondary education, at the end of that period."

9

On 30 September 1997 the Department of Education and Employment ("the Department") sent to head teachers a circular relating to the APS. The effect of the new statutory provisions on those within the APS was explained as follows:

"7. The Government's continuing responsibility to children holding assisted places at the start of the 1997/98 school year is to provide support for the remainder of the current phase of their education, or until they have completed their education at their current school, if this is earlier. Therefore support is confined to the current phase of the child's education and the school they currently attend. ….

9

Thus a child holding an assisted place at the beginning of the autumn term 1997 and who is in receipt of secondary education, is entitled to retain his place until he reaches the upper age limit of the school. For example, an 11 year old pupil in receipt of secondary education in a school which takes pupils to age 13 will be eligible to keep his place until the end of the school year in which he reaches that age, but will not be able to transfer to a different school after that age with his assisted place. An 11 year old child in receipt of secondary education in a school which takes pupils to age 18 will be eligible to keep his place to that age.

10

In general, children in receipt of primary education will hold their places until the end of their primary education. For example a 7 year old will hold his place until he has completed his primary education, which will normally be the end of the school year in which he reaches age 11. There is a discretionary power which provides for extended support beyond the end of primary education. Details are in paragraphs 15–16 below."

10

Paras 15 and 16 dealt with applications for the exercise of discretion under s. 2(2)(b).

"15. The Secretary of State has a discretionary power to allow assisted pupils in receipt of primary education at the start of the 1997/98 school year to continue to hold their assisted places for a further period in which they receive secondary education. The discretion can be exercised in favour of a child only where the Secretary of State is satisfied that it is reasonable to do so in view of the particular circumstances relating to that child.

16

All applications for the exercise of discretion will be considered on their individual merits. As Ministers made clear during the parliamentary proceedings on the legislation, it will normally be their policy to exercise discretion in the following circumstances:

a. where the pupil is resident in an area where a middle school system operates in the maintained sector but transfers from middle to secondary school later than age 11;

b. in respect of a pupil allocated an age 10 entry place to one of the 12 APS schools with a specific allocation at that age for accelerated entry into secondary education at that school;

c. in respect of a pupil in a free-standing preparatory school who was given a clear promise of a place through to age 13 on the understanding that the new Government had given such an undertaking."

11

It is not in dispute that Heather does not come within any of those provisions for the exercise of discretion, as The Leys (including St Faith's) is an "all-through" school and St. Faith's is not a "free-standing preparatory school".

12

The effect for Heather therefore of the 1997 Act and that policy on the exercise of discretion was...

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