The Queen (on the application of Dounia Gassa and Dominic Matthey-Flemming) v Richmond Independent Appeals Service
| Jurisdiction | England & Wales |
| Judge | James Strachan |
| Judgment Date | 22 April 2020 |
| Neutral Citation | [2020] EWHC 957 (Admin) |
| Date | 22 April 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4205/2019 |
[2020] EWHC 957 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Strachan QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/4205/2019
and
Denis Edwards (instructed by Edwards Duthie Shamash Solicitors) for the Claimants
Tom Amraoui (instructed by South London Legal Partnership) for the Defendant
Jack Anderson (instructed by South London Legal Partnership) for the Interested Party
Hearing date: 18 February 2020
Approved Judgment
James Strachan QC (sitting as a Deputy Judge of the High Court):
Introduction
In R v South Gloucestershire Education Appeals Committee ex parte Bryant [2001] ELR 53, Buxton LJ observed:
“Nobody who has had any sorts of dealings with educational matters … would wish to undervalue the importance that is placed by parents upon having their child educated at the school that they would prefer. The legislation recognises that, but at the same time has to make provision for that right to be exercised within the constraints of what is practically available.”
This claim for judicial review concerns that right and the practical constraints that affect it.
In this case, the Claimants' basic challenge is to a decision of the London Borough of Richmond upon Thames (“the Council”) to refuse to treat their current address in East Sheen as their permanent home for the purposes of their application for a primary school place for their son. Their appeal against the Council's consequential decision to offer him a place to their preferred school was rejected by an appeal panel of the Defendant (“the Appeal Panel”) by decision letter dated 16 September 2019. The Claimants now challenge that decision on various grounds.
The Defendant and the Council have now conceded the challenge to the adequacy of the reasoning of the Appeal Panel. They concede the underlying appeal should be redetermined by a fresh Panel. Consequentially, they argue that these proceedings have become academic. The Claimants do not agree. They argue there are three issues of law as to the approach a fresh panel must take on redetermination which require resolution by this Court before an Appeal Panel make a fresh decision. I deal with each issue in turn below.
Factual Background
The Claimants' Circumstances
The Claimants' son is now five years old. Both before his birth and whilst he was an infant, the Claimants lived in a flat which they own in Barnes in London. The flat is within the Council's area. They also owned a second flat in the Barnes area (now sold) and a third flat in East London which they rent out.
As their son grew older, the Claimants took the view that they needed a larger property. They were also concerned that its location on a main road was related to their son's symptoms of asthma for which he required an inhaler. They also wanted access to a garden in which their son could play.
In 2016 they began to look at East Sheen as an area. They made an offer to purchase a property there in 2016 and again in 2017, but they were outbid each time.
They decided that their financial circumstances might not enable them to purchase a suitable home in East Sheen as quickly as they had hoped, so they started to look at properties to rent. They found a house to let in East Sheen. They moved into it in December 2018 on a standard form assured shorthold tenancy agreement for 1 year. They informed the landlord of an intention to stay longer. The lease has subsequently been extended for a further year until December 2020. They moved in with their existing furniture and new furniture to furnish the property.
The Claimants retained ownership of the flat in Barnes, but they let it out to a tenant on a lease of 18 months in January 2019. The Claimants have stated to the Council that until they find a home in the East Sheen area which they can afford to buy, they believe it is better to retain and let their flat to have a rental income to offset the significant expense of renting a house in the East Sheen area.
The Claimants' Primary School Application
At the time of this move, the Claimants applied to the Council for a reception school place for their son. The application form identified their permanent home address as the rented house in East Sheen. Their preferred choice of school was Sheen Mount Primary School, approximately 35 metres away from that property. They listed two other schools near to the house in East Sheen, followed by three schools near to the flat that they continued to own in Barnes.
The Council's admission arrangements
The Council's admission policy to its primary schools for the relevant school year was set out in a document entitled “Admission to Richmond's Primary Schools” 2019. This lists all the primary schools in the Council's area, including a map of their location. It identifies the number of places available and the number of applications received in the previous year.
Section 3 of that document sets out six steps for an application. Step 1 is described as understanding the admissions process. It identifies that an applicant may apply for up to six state funded schools on one application. The applicant must list the schools in the Council's area and in any other council's area in the order that the applicant prefers them. It explains that each school listed on the application will consider the application against the school's admission criteria only, and not according to the order of preference in the application. If a child meets the admission criteria for more than one school, the Council will look at the preference order and the applicant will be offered the highest preference school for which the child has met the admission criteria. If the Council is not able to offer the child a place at any of the schools applied for, the applicant will be offered, where possible, a place at another school.
The document advises an applicant to think carefully about the order of preference when deciding how to list the schools, because if a child qualifies for a place at a number of schools, the applicant will only be made one offer of the school which is named as a higher preference.
An example of a completed table with schools in order of preference is given. In the example given, only 5 out of the 6 spaces for potential preferences are completed.
The document also states that if an applicant wishes to change the preferences after the closing date, all the preferences will be considered as late applications and considered after all on-time applications.
Step 3 sets out five admission criteria that apply in sequential order to all community infant and primary schools. The first criterion is for places for “looked after children and previously looked after children”. The next criterion is for cases of “exceptional family, social or medical need”. The third is the offer of places to siblings. The fourth is the offer of places to children of members of staff employed at the school for two or more years. The fifth and last criterion identifies that the remaining places will be offered to children who live nearest to the school. It explains that this will be measured by the shortest route by road and/or maintained footpath from the property to the nearest pedestrian school gate used by the relevant year group and all distances using the Council's geographical information system. The way in which the measurement is carried out is explained in more detail, but it is unnecessary to set out that detail here as the mechanics of that measurement are not in issue here.
The notes to this section state:
“1. Any offer of a place on the grounds of distance must be based on the child's permanent address. A business address, a childminder's address or any address, including a family member's address, other than the child's permanent home will not be accepted. Proof of address will be sought if there is doubt about the validity of the address given and it may be the subject of further investigation. Temporary addresses will not be used for the purpose of administering applications.”
It is the application of this fifth criterion, and in particular the identification of the child's “permanent address”, that is at the heart of this case.
Step 4 deals with “Completing Your Application”. This section includes the following in relation to this question of a child's “home address”:
“ Child's home address
To ensure that offers of school places are made correctly and fairly, the Council is committed to following strict address verification procedures. The Council will investigate any applications where there are doubts about the information provided or where information has been received that suggests a fraudulent or misleading application has been made. Before we make our decision as to whether we will accept an address or not, we will consider your circumstances in accordance with the guidance set out below, which should be read in its entirety.
As part of the admission process, we will check Council records to confirm that the address you have given in your application is your child's permanent home address. If there are any doubts about your address details we may request further evidence. It is your responsibility, as the applicant, to provide evidence to support your application.
We may seek evidence from Council...
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