B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE MAY
LORD JUSTICE TUCKEY
| || THE SCHOOL ADMISSION APPEALS PANEL|
FOR THE LONDON BOROUGH OF HOUNSLOW
- and -
THE MAYOR AND BURGESSES OF
THE LONDON BOROUGH OF HOUNSLOW
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr T Kerr QC and Ms D Hay (instructed by A & E Smith & Son) for the Appellant
Mr P Oldham (instructed by Borough Solicitor) for the Respondent
Mr J Friel (instructed by Messrs Price Watkins) for interested parties
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice May:
- This is an appeal by the School Admissions Appeal Panel for the London Borough of Hounslow (“the Panel”) against a decision and order of Maurice Kay J made in the Administrative Court on the 14th February 2002. The judge gave permission to appeal saying that the case raised important issues with regard to the relationship between School Admission Appeal Panels and local education authorities.
- Grove Park School is a maintained primary school for which the claimant, the London Borough of Hounslow, is the responsible Local Education Authority. The parents of four unrelated children applied for them to be admitted to the infant class at Grove Park School in September 2001. Each of the children had an elder brother or sister at the school. The school was over-subscribed. They were not admitted. The parents of each of the children appealed to the Panel. The four appeals were heard together. By letters, each dated 30th November 2001 and for present purposes in the same terms, the Panel upheld the appeals. The statutory effect of this was that Hounslow were obliged to admit each of the children to the school. Hounslow applied for judicial review of the decisions of the Panel. Maurice Kay J found in favour of Hounslow and made orders quashing the Panel’s decisions.
- The facts of these appeals raise in acute form practical problems which must frequently arise when a school is over-subscribed. The problem may be particularly acute with the admission to infant classes at maintained schools, because section 1(1) of the School Standards and Framework Act 1998 obliges the Secretary of State to impose by regulations a limit on class sizes for infant classes at maintained schools. Subject to certain exceptions, the maximum number of pupils in a class is 30. Section 1(6) of the 1998 Act obliges the local education authority to exercise its functions with a view to securing that the limit is complied with. Local education authorities have to make and publish admission arrangements, as Hounslow did. Criteria which are often adopted include giving preference on the one hand to those who live close to the school, and on the other hand to those whose elder brothers or sisters are already at the school. For the first of these criteria, it becomes necessary to draw boundaries, sometimes referred to as catchment areas. It is obvious that, speaking generally, local education authorities have to adopt criteria which are fair. But there will in practice be tensions resulting in anomalies and difficulties in individual cases. In my view, neither of these criteria is intrinsically fairer in every case than the other. Nothing that has been put before this court on this appeal persuades me that school admission arrangements in general ought always to give a higher preference to one rather than the other.
- The essential contention of the parents of each of the children in the present appeal, put very simply, is that, if Hounslow had given proper and fair weight and consideration to the fact that each child had an elder brother or sister at the school, they would or should have admitted them. Hounslow’s essential position is that they made reasonable admission arrangements under which they gave preference to children who lived locally over those who had elder brothers or sisters at the school, and that the Panel had no jurisdiction to question the admission arrangements. The Panel’s essential position is that Hounslow failed to justify as reasonable their admission arrangements and made no other attempt to justify as reasonable their decisions not to admit the children.
- The School Standards and Framework Act 1998
Chapter I of Part III of the 1998 Act has provisions about admission arrangements. Section 84(1) requires the Secretary of State to issue a code of practice “containing such practical guidance as he thinks appropriate” for the discharge of their functions relating to admission arrangements by bodies involved in them, including local education authorities, appeal panels and adjudicators. Each of the bodies is required to have regard to any relevant provisions of the code, a copy of the draft of which has to be laid before each House of Parliament. Section 86 of the 1998 Act provides:
“(1) A local education authority shall make arrangements for enabling the parent of a child in the area of the authority –
(a) to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority’s function, and
(b) to give reasons for his preference.
(2) Subject to subsections (3) and (6) …, a local education authority and the governing body of a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1).
(3) The duty imposed by subsection (2) does not apply –
(a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources;
(4) For the purposes of subsection (3)(a) prejudice of the kind referred to in that provision may arise by reason of measures required to be taken in order to ensure compliance with the duty imposed by section 1(6) (duty of local education authority and governing body to comply with limit on infant class sizes).”
- Thus section 86(2) imposes a duty on a local education authority to comply with an expression of parental preference, but they do not have to do so, if that would prejudice the provision of efficient education or the efficient use of resources. In a case in which these considerations arise, there has to be a balancing exercise between the parental preference and the factors referred to in subsection (3)(a) put forward as countervailing the parental preference. The effect of subsection (4) is that a local education authority does not have to comply with a parental preference, if to do so would take the size of an infant class above the statutory limit of 30. However, in my view, the fact that the local education authority does not have to comply with the parental preference does not mean that they do not have to take it into account. Nor does it mean that there can be no basis for an appeal against a local authority’s decision to refuse admission, if their reason for refusal is that the statutory limit on the size of infant classes would be exceeded.
- Section 89(1) requires a local education authority for a maintained school to determine admission arrangements in accordance with that section. The authority is required to consult specified bodies. These do not include parents. Section 90 provides for objections to admission arrangements to be referred to an adjudicator. The adjudicator may decide whether and, if so, to what extent the objection should be upheld or, in certain prescribed cases, refer the objection to the Secretary of State. The effect of section 90(2), with regulations made under it, is that in certain prescribed circumstances (but not generally) a group of at least 10 parents who live in the area may refer an objection to admission arrangements to the adjudicator. The decision of the adjudicator or the Secretary of State on an objection to admission arrangements is binding on the admission authority.
- It is accepted by all parties to this appeal that the decision of an adjudicator on an objection to admission arrangements might be challenged by judicial review. It is Hounslow’s case that this is the only legitimate route of challenge against admission arrangements. That question has to be considered in the light of the statutory provisions relating to appeals. Speaking generally, it might be feasible in an individual case for one of the bodies whom the local authority is obliged to consult about their admission arrangements to apply for judicial review of the decision of an adjudicator. But it would be scarcely practical for parents who wanted their children to go to a maintained school to seek judicial review of previously published admission arrangements. We were told that in Hounslow admission decisions are communicated to parents in about May of each year for the following September. No parent would be likely to think about the possibility of challenging admission arrangements before they knew whether their child had been offered a place at the school. In the short time between May and September, an appeal to an appeal panel would be feasible, but judicial review of the decision of an adjudicator in relation to previously published admission arrangements would not, even if it were theoretically possible. An application for judicial review would probably be seen as seriously out of time. The published admission arrangements may never have been referred to an adjudicator. The expense of judicial review proceedings would be disproportionate. In practice, there would probably not be enough time. Generally, the parents of small children about to go to a new school would not be thinking about, and should not be expected to think about, the paraphernalia of judicial review.
- Section 94 of the 1998 Act requires local education authorities to make arrangements for enabling parents to appeal against any decision made by or on behalf of the authority as to the school at which education is to be provided for the child. Schedule 24 has effect in relation to the making and hearing of these appeals. Section 94(6) provides that the decision of an appeal panel is to be binding on the local education authority. Children admitted to infant classes at maintained schools pursuant to a successful appeal are exceptions to the statutory maximum limit on class sizes until the beginning of the school year following the year in which they are admitted. So an infants’ class at a maintained school can have 32 or 33 children in it for a year, if the 2 or 3 children over the 30 enter the class as a result of a successful appeal.
- Part I of Schedule 24 of the 1998 Act provides for the constitution of appeal panels. A feature emphasised by Mr Kerr QC on behalf of the Panel in the present case is that all the members now have to be independent of the local education authority. This was not so under earlier legislation. Paragraph 7 of Schedule 24 provides that the local education authority has to indemnify the members of any appeal panel against any reasonable legal costs and expenses reasonably incurred by them in connection with any decision or action taken by them in good faith as members of the panel.
- Part II of Schedule 24 provides for procedure in relation to appeals. Paragraph 10 requires the appeal panel to give the appellant an opportunity of appearing and making oral representations and may allow him to be accompanied by a friend or to be represented. This suggests, as one would expect, an informal procedure and one which would not normally be taken over by expensive lawyers. Paragraphs 11 and 12 of the Schedule contain the provisions which are central to this appeal. They provide:
“11. The matters to be taken into account by an appeal panel in considering an appeal shall include –
(a) any preference expressed by the appellant in respect of the child as mentioned in section 86, and
(b) the arrangements for the admission of pupils published by the local education authority … under section 92.
12. Where the decision under appeal was made on the grounds that prejudice of the kind referred to in section 86(3)(a) would arise as mentioned in subsection (4) of that section, an appeal panel shall determine that a place is to be offered to the child only if they are satisfied –
(a) that the decision was not one which a reasonable admission authority would make in the circumstances of the case; or
(b) that the child would have been offered a place if the admission arrangements (as published under section 92) had been properly implemented.”
Hounslow’s admission arrangements
- Before 1992, Hounslow’s admission policy for entry to their primary schools gave priority to families who had an elder son or daughter attending the infant school or junior school with which it was linked; and what is expressed as “an equal priority” to families living in their preferred school’s “Priority Admission Area”. Whatever precisely “an equal priority” meant here, children with an elder brother or sister at the school were given a first priority. In 1992, the priorities were, after consultation, changed. The first priority was to be given to families who live in the school’s “Priority Admission Area”; the next priority was given to children with medical or social needs; and the third priority was given to families living outside the Priority Admission Area but who had an older son or daughter attending the infants school or junior school with which it is linked. By 2001, the first of these priorities had been subdivided so that, within the Priority Admission Area, priority was given to families with an elder brother or sister at the school; then families with particular social or medical needs; and then by reference to the distance from and the nature of the next nearest school. Thus from 1992, families with an elder brother or sister at the school who did not live in the Priority Admission Area were subordinated to those living within the Priority Admission Area.
Grounds of appeal to the Panel
- The four appeals to the Panel which are the subject of the present appeal to this court were heard together. The same solicitor represented each of the families. In the case of Theo Hooke, his mother’s notice of appeal contended that it was unreasonable for her child to be denied a place at his sibling’s school, because it was impossible to get two children to different schools at the same time and this would inevitably put at risk both children’s education. It was contended that an admissions policy which refuses a child a place at their sibling’s school is unlawful because it denies the child his or her human rights. Reliance was placed on Articles 8 and 14 of the European Convention of Human Rights and the first sentence of Article 2 of the First Protocol. There was reliance on the decision of the European Court of Human Rights in the Belgian Linguistic Case (No. 2) (1968) 1 E.H.R. 252. The grounds of appeal also relied on the decision of this court in R v. Sheffield City County ex parte H  ELR 511 and the decision of Stanley Burnton J in The Queen on the application of South Gloucestershire Local Education Authority v. The South Gloucestershire Schools’ Appeal Panel  EWHC Admin 732. I shall refer to these decisions later in this judgment. The grounds of appeal for the other three children made essentially the same human rights’ case, but each relied in greater detail on particular facts relevant to the particular child. By way of example only, Ms Keen explained that she had medical problems which made it impossible for her to do two different school runs, and she gave details of that.
Two important authorities
- The Sheffield case was a decision under the Education Act 1996. The appellants, two school children, were due to transfer to secondary school in September 1998. Under the respondent local education authority’s allocation procedure, their parents’ preference for a non-catchment area school was rejected and the children were allocated to their catchment area school. The statutory appeal committee dismissed the parents’ appeals, finding that the school of their preference had an excess of 109 pupils above its capacity. It was conceded, at least in the Court of Appeal, that the local education authority’s allocation procedure for secondary school was unlawful because it failed to fulfil the requirement of section 411(1)(b) of the Education Act 1996. This required a local education authority to make arrangements for enabling the parent of a child to express a preference as to the school at which he wished his child to be educated and to give reasons for his preference. The form which the local education authority sent to the parents only invited them to give reasons for their choice if they sought allocation to a non-catchment school. If they were content to take a place in the catchment school, they were not asked to give any reasons. That was in breach of section 411(1)(b). Owen J gave a declaration to that effect in judicial review proceedings of the appeal committee’s decision, but declined to grant any other relief such as would have entitled the appellants to further hearings before another appeal committee with a view to gaining entry to their preferred school. The appellants’ appeal to this court was on grounds which included that the judge should have made orders beyond the declaration which he did make, and that he had failed to apply a passage in the judgment of Collins J in R v. Rotherham Metropolitan Borough Council ex parte Clarke and Others  ELR 152 to the effect that the unlawfulness of an admissions policy might be taken into account by the appeal committee. It was held by a majority of this court (Peter Gibson and Pill LJJ) that the idea that an appeal committee could discharge its duty to determine the merits of individual appeals without some reference to the lawfulness of the arrangements made by the local education authority under the 1996 Act was unrealistic. The appeal committee was not disentitled from considering legal issues, nor was it obliged slavishly to apply unlawful local education authority arrangements. The appeal committee was plainly intended by Parliament to be an independent tribunal to which parents aggrieved by local education authority decisions could turn to have those decisions impartially reviewed, and no restriction was placed on the grounds of the appeal or the nature of the representations which could be made to the committee. Laws LJ dissented on this point, although the court was unanimous in dismissing the appeal on the ground that there was no basis on which the court could properly interfere with the judge’s exercise of his discretion not to grant further relief than a declaration.
- The constitution of appeal committees under Part I of Schedule 33 of the 1996 Act was not the same as the constitution of appeal panels under the 1998 Act. Importantly, under the 1996 Act an appeal committee included members nominated by the local education authority including members of the authority itself. Nor was the procedure for appeals the same. Paragraph 11 of Schedule 33 of the 1996 Act was in substantially the same terms as paragraph 11 of Schedule 24 of the 1998 Act. But there was no equivalent of paragraph 12 of Schedule 24 of the 1998 Act, because it was that statute which introduced the limit on class sizes for infant classes at maintained schools.
- It was contended on behalf of the local education authority that the appeal committee had, as a matter of jurisdiction, no business entering into the legality of the local education authority’s admissions procedure which had to be treated by the appeal committee as lawful unless and until it was quashed. Laws LJ said that this was the converse of the appellants’ second ground of appeal that the judge had failed to take account of the unlawfulness of the admissions policy. The unlawful element of the procedure had never been pointed out to the appeal committee, and Laws LJ found it very difficult to see that their decisions could properly be condemned as unlawful on the ground that they failed to take account of something never drawn to their attention. But there were much deeper difficulties. Laws LJ continued:
“What is meant by the proposition that the committee should have taken account of the unlawful element in the LEA’s procedures? It can only mean that they ought distinctly to have held the procedure to be unlawful as a matter of judicial decision, just as Collins J and the Court of Appeal did in R v. Rotherham Metropolitan Borough Council ex parte Clarke and Others, and then proceeded to consider whether in the light of that the parents’ appeals should be allowed. But this would be to invest the committee with a form of jurisdiction akin to judicial review. …
Such a state of affairs seems to me to be wholly outwith the contemplation of the Education Act 1996. In my judgment, by s 423(1) the committee is to determine the factual merits of individual appeals concerning the school to which in each case the LEA has allocated the child in question … the conception that the committee might review the legality of LEA policy is to my mind inconsistent with the single role allotted to it; that is, as I said, the determination of the merits of individual appeals. An adjudication to the effect that an admissions policy is unlawful would as a matter of logic be material not merely to the outcome of the individual appeal, but to the case of every child affected by the policy. That is only consonant with a general supervisory jurisdiction, as is possessed by the High Court, but which the committee certainly lacks. Moreover, the committee is not given the power to grant any remedy affecting a class of cases as opposed to the individual case; …”
- Laws LJ considered that a requirement to “take into account” the matters referred to in paragraph 11 of Schedule 33 of the 1996 Act was apt only to impose a duty to consider factual material. It was entirely inapt to impose a duty to adjudicate upon issues of law. He considered that the suggestion that the committee possessed a jurisdiction akin to judicial review was hopelessly impractical. It would lead to much uncertainty and the efficient administration of school admissions would be gravely undermined. He referred to a passage in the judgment of Collins J in the Rotherham case at page 167 in which Collins J accepted a submission that the knowledge of a committee that the parents had been prejudiced by the policy which he had decided to be flawed was a factor which they were entitled to take into account in reconsidering the appeals. There was no gloss on this in the judgments in the Court of Appeal in that case. Laws LJ considered that Collins J was plainly not holding that the committee possessed the power itself to decide whether the LEA policy was unlawful. If the committee was faced with school admission arrangements which had already been condemned in the High Court as unlawful in some respects, no doubt it might have regard to that fact if there was any practical sense in which it could properly affect the outcome of individual appeals.
- The court had been provided with the text of the 1998 Act, which was then recent legislation and which did not apply to the appeal they were considering. Laws LJ referred to paragraph 12 of Schedule 24 of the 1998 Act and said of it:
“This may indeed be said to confer a jurisdiction akin to judicial review, though very plainly circumscribed so as to apply only to the particular appellants’ particular circumstances. It clearly confers no power to pass judgment generally upon any policy of the LEA. It requires the committee to decide whether an unreasonable decision has been made on the facts of the particular case.”
- As I have said, both Pill and Peter Gibson LJJ disagreed with Laws LJ. Pill LJ referred to the relevant parts of the 1996 Act, from which it followed, in his view, that an appellant to an appeal committee was intended to have the right to an independent and general scrutiny of his case. The independence and scrutiny required to be exercised by the appeal committee was illusory if it was obliged to apply policies which were known to be unlawful or ought to be known to be unlawful. Pill LJ then said at page 523C:
“The appeal committee’s duty is, of course, to determine the merits of individual appeals. The idea that it can do so without some reference to the lawfulness of the arrangements made by the LEA under s 411 is, however, unrealistic. An appeal committee is not obliged to treat those arrangements as if set in stone and beyond challenge. They may lack clarity or, as in this case, be unlawful. Mr McManus [for the LEA] accepted, in the course of argument, that the appeal committee should not be obliged to enforce arrangements which were contrary to basic human rights or were racially or sexually discriminatory. Whether they do so offend, involves a legal judgment by the appeal committee. Mr Bean [for the appellants] was doing no more than submitting that, if it knew of the illegality present in this case, the appeal committee might have come to a different conclusion. I disagree with that submission on the facts, as already stated, but I cannot agree that, as a matter of jurisdiction, the appeal committee is disentitled from considering legal issues.”
- Pill LJ said that an appeal committee is not obliged slavishly to apply unlawful LEA arrangements. There was no simple answer to possibilities of conflict between a quasi-judicial procedure which aggrieved parents might use and a procedure which did not interfere unduly with the needs of good administration. A committee was not obliged to ignore illegality if the merits of the particular case require adherence to legality.
- Peter Gibson LJ said that the question was essentially one of statutory construction. No restriction was placed on the grounds of appeal. It was conceded that the appeal committee would not be obliged to proceed on the basis that the admissions procedure was lawful, even in the absence of a prior challenge by way of judicial review, when the procedure offended the discrimination laws. He then said at page 526F:
“That concession, to my mind, undermines the solidity of the submissions made by Mr McManus. I do not see how one can properly distinguish between some illegalities and other illegalities. If it is permissible for the appeal committee to consider some questions of law, I cannot think that there can be any objection in principle to the committee considering other questions relevant to the appeal. Having said that, I fully recognise the practical difficulties to which Laws LJ rightly draws attention in his judgment. The primary function of the appeal committee is to determine the merits of the particular appeal. The appeal committee plainly has no power to quash the council’s policy decision, but if the point had been taken ... on the appeals in respect of the appellants that the admissions procedure was unlawful ..., I take the view that the appeal committee could not shut its eyes to that fact; nor could a fresh appeal committee do so. In each case it would have had to consider the effect of that illegality on the appeal before it.”
- There are important points of distinction between that case and this appeal. The Sheffield case did not concern admission to an infants class at a maintained school, but to a secondary school. The relevant part of section 411 of the 1996 Act was the equivalent of section 86(1), (2) and (3)(a) of the 1998 Act. But the 1996 Act did not have a provision equivalent to that in section 86(4) of the 1998 Act; nor, as I have already said, was there a provision equivalent to paragraph 12 of Schedule 24 of the 1998 Act. The admissions issue in the Sheffield case was a balance of prejudice between parental preference and the provision of efficient education or the efficient use of resources. The majority decision in this court was that in judging that balance, an unlawfulness in detail of the admissions procedure was a factor to be taken into account. The unlawfulness was judicially determined and admitted, at least in the Court of Appeal. It was simply a failure to follow the statutory procedure. It was not determinative of the issue: only a matter to be taken into account. It did not require sophisticated and expensive judicial review proceedings to decide upon an uncertain balance whether admission arrangements were in general unreasonable in a Wednesbury sense.
- The South Gloucestershire case is a first instance decision of Stanley Burnton J in the Administrative Court in relation to school admission appeals under the 1998 Act. The local education authority brought judicial review proceedings against a schools appeal panel. The panel had heard and allowed appeals by the parents of 6 children who had been refused places at Samuel White’s School for the academic year beginning in September 2001. Each of the children had an elder brother or sister at Samuel White’s or a related school. They lived locally, but not within what that local education authority referred to as the Area of Prime Responsibility for Samuel White’s School. It was for that reason that the authority had rejected the parents’ applications for places at the school. The appeal panel upheld each of the appeals. The main issue before Stanley Burnton J was the meaning and effect of the local education authority’s schools admission policy, which was said to be unclear. The appeal panel had considered that, if the policy meant what the authority contended, it was so unfair and so unreasonable as to be perverse. But the panel did not accept the meaning contended for by the authority. Upon the meaning which they determined, they had little difficulty in upholding five of the six appeals under the second of the two statutory grounds in paragraph 12 of Schedule 24, that is that the child would have been offered a place if the admission arrangements had been properly implemented. Stanley Burnton J upheld this part of the panel’s decision (see paragraph 52 of his judgment). In those circumstances, the panel no longer contended that the policy itself was unlawful, and the judge did not need to consider that aspect of the case further. He had said in paragraph 50:
“50. I have to say that I was instinctively surprised that a panel could decide not to apply a school’s admission policy because it considered it to be unlawful. The appropriate forum for attacks on the lawfulness of a formally adopted policy is normally the High Court. However, it appears that my initial reaction was mistaken. It is clear from the decision of the Court of Appeal in R v. Sheffield City Council Ex Parte H and Another  ELR 511 that a panel must have regard to the illegality of the policy it is asked to implement. … The matter is even clearer given the rewording of the relevant statutory provisions. While I find the scope of paragraph 12(a) of Schedule 24 of the 1998 Act far from easy to determine, I do think that it covers the question whether the policy implemented by the LEA was lawful and reasonable (in the Wednesbury sense), since a reasonable admission authority would not make its decision pursuant to such a policy. However, the question is even clearer since the coming into force of the Human Rights Act, which by section 6 renders it unlawful for a public authority to act in a way that infringes Convention Rights. Both the LEA and the Panel are public authorities for these purposes.
51. That is not to say that every panel hearing must become a state trial. A panel will normally be entitled to assume that a school’s admission policy is lawful and does not infringe the European Convention on Human Rights. If an allegation of infringement of a human right is raised, such as discrimination on the grounds of residence, it will usually be possible to deal with it briefly. If the LEA provides a reasonable explanation and justification for its policy, in most cases that will suffice. If there is a real issue as to the lawfulness of a school’s admission policy, the better course, if practicable, is for the panel to defer its decision pending judicial review proceedings, which, as this case shows, if begun with expedition can be determined with expedition.”
- Stanley Burnton J decided that it was inappropriate for him to make any declaration or finding as to the lawfulness or otherwise of the admissions policy of the local education authority in that case relating to children with elder brothers or sisters in the school. He had noted some objections to that policy on the grounds of discrimination and by reference to Article 14 of the European Convention on Human Rights and Article 2 of the First Protocol. He said at paragraph 54:
“However, such discrimination is not necessarily unlawful. There may be sensible, objective and indeed compelling, justification for it. For reasons which are not apparent, the claimant has not put before me any evidence seeking to justify its policy. It accepts that it discriminates against certain siblings on the basis of residence. However, it points out that any catchment area policy relating to schools admissions will discriminate on grounds of residence. What is in play in the present case is the priority to be given to siblings as against non-siblings.”
The Panel’s decisions
- In the present cases, Hounslow’s essential case has throughout been that the Panel has no power to sit in judgment on Hounslow’s admission arrangements either by considering whether it was reasonable to apply them or by considering whether they were lawful. At the outset of the hearing before the panel, Mr Oldham on their behalf applied for an adjournment of the hearing to enable judicial review proceedings to take place. This was no doubt prompted by what Stanley Burnton J had said in the South Gloucestershire case. The Panel refused this application and proceeded to hear the appeal.
- The Panel’s decisions were communicated in letters dated 30th November 2001 to each of the parents. The Panel upheld each of the appeals deciding that Hounslow’s decisions were unreasonable given the circumstances of the case. They were thus decisions under paragraph 12(a) of Schedule 24. The panel recorded that they had been asked to consider the lawfulness of Hounslow’s admissions criteria. They recorded how the criteria had developed from 1992. They stated that, during the two days hearing and with a large amount of paper work and evidence from Hounslow’s Assistant Director of Education, they were given no explanation of how specifically the admissions criteria that was published in 1992 had emerged. They recorded that they had considered paragraphs B.12, B.13 and B.14 of the Statutory Code of Practice, to which I shall return later in this judgment. In a section of the decision letter headed in terms indicating that it related to paragraph 12(a) of Schedule 24, they recorded as their decision:
“The Panel considered that the decision of the LEA to adopt the admissions criteria initially in 1999 and subsequently in 2000 and 2001 was not a decision that a reasonable admissions authority would make. The Panel was of the view that the LEA had failed to take account of the impact on families of its admissions policy.”
- The decision letters then referred to the South Gloucestershire case, and recorded reasons given by Stanley Burnton J in that case why a policy that prioritised siblings was desirable. The letters then stated:
“The Panel agreed that the difficulties as outlined by the judge, in particular the difficulties of a parent taking and collecting from two different schools and the fact that schools may have different holidays and inset days, and the LEA’s failure to take account of the difficulties of splitting siblings was unreasonable. The Appeal Panel considered that the LEA’s suggestion to move the whole family to a new school was not practical and was in fact unreasonable as there was no guarantee that the family would not have to move schools again if subsequent children within that family were unable to gain a place at the school. The Panel considered that there is more disruption to a family with siblings already at a school if the sibling fails to get a place than to a first admission child who fails to secure a place at their preferred school.
The Panel further commented that they found it illogical that the LEA gave siblings an absolute priority in their admission criteria for secondary school but not at primary level. The LEA did not provide an explanation of why it considered the sibling connection to be of more importance at secondary level.”
- The decision letters then considered the appeals by reference to paragraph 12(b) of Schedule 24 and concluded that the admissions criteria for entry into Grove Park School for September 2001 as published by Hounslow had been correctly applied.
- There was then a short section of each letter under the heading “The Lawfulness of the Admissions Criteria”. It was noted that the case advanced was that Hounslow’s admissions criteria were unlawful in contravention of the Human Rights Act 1998. Of this, the Panel wrote:
“The Panel having admitted your child under the grounds that the admissions criteria were unreasonable did not decide whether it was entitled to consider the lawfulness of the admissions criteria. The Panel commented that they were not the proper forum to judge the lawfulness of the criteria under the Human Rights Act.”
- Although at least three of the four notices of appeal by the parents to the Panel contained detailed factual reasons particular to the individual child and the family in support of the appeal, the decision letters cannot, I think, be read as deciding the appeals by reference to individual circumstances. Mr Kerr, supported with less than complete conviction by Mr Friel, made submissions to the effect that they did, but I did not find these submissions persuasive. As I have said, the four letters are for practical purposes in the same terms and there is really nothing that can be read as referring to the detail of individual cases.
Hounslow’s case before the judge
- Hounslow’s case in the judicial review proceedings before Maurice Kay J in essence contended that:
(a) the Panel had no power under the 1998 Act to determine that Hounslow’s admission arrangements were unreasonable, and that they failed to have regard to the statutory code of practice;
(b) there was a fundamental internal inconsistency within the decision letters. On the one hand, the Panel stated that they had not decided whether it was entitled to consider the lawfulness of the admissions criteria and were not the proper forum to judge this under the Human Rights Act: On the other hand, in deciding that Hounslow’s decision to adopt the admissions criteria was not a decision that a reasonable admissions authority would make, they had in substance subjected that decision to a form of judicial review and had declared it to be unlawful;
(c) there was a fundamental inconsistency between the terms of the decision letters and what was said in the witness statement of Sarah De Almeida, the solicitor who chaired the Panel;
(d) the Panel’s decision that Hounslow’s admissions criteria were unreasonable was itself perversely unreasonable; and
(e) the decisions in the present cases were inconsistent with another decision of the same Panel in a case referred to as “S”.
- In her witness statement, made also on behalf of her fellow Panel members, Sarah De Almeida stated her belief that two issues at the heart of the case were, first, the nature of an admission appeal panel’s task in a case where the legality of admission criteria is impugned in an appeal; and, second, in what circumstances a local education authority may, after 2nd October 2000, adopt and apply admission criteria which discriminate between siblings on the basis of their residence. The Panel accepted the view of Stanley Burnton J in the South Gloucestershire case and approached the appeals on that basis, as she believed they were bound to do. She stated that, but for the costs risks relating to the question whether the statutory indemnity extended to bringing a counterclaim, she would have seriously considered whether the Panel should, as the panel in the South Gloucestershire case did, counterclaim for a declaration that Hounslow’s primary school admission criteria were unlawful. The Panel approached the appeals on the basis that the South Gloucestershire case correctly stated the law and that both the Panel and Hounslow were bodies falling within section 6 of the Human Rights Act 1998. They approached the appeals on the principle that a reasonable admissions authority would not make a decision pursuant to an unlawful policy. They did not accept a submission on behalf of Hounslow and based on the Sheffield case, that the Panel were disentitled from considering whether Hounslow’s admissions criteria were lawful. They noted that the Sheffield case predated the Human Rights Act. However, they did accept that they could not actually quash the admission criteria. The Panel did not accept that its decision to allow the appeals was perverse. They considered that they had to decide whether Hounslow had provided them with what Stanley Burnton J in the South Gloucestershire case described as a “reasonable explanation and justification for its policy”. They concluded that Hounslow had not done so for the reasons which they hoped had been clearly set out in the decision letters. As to Hounslow’s application for the appeal proceedings to be adjourned so that judicial review proceedings could take place, the Panel decided that an adjournment would be unfair to the parents and the appeals should proceed. After the first day’s hearing on 8th November 2001, the appeals were adjourned to 16th November. Sarah De Almeida confidently expected that, during the adjournment, Hounslow would assemble documents and submissions to persuade the Panel that there was a basis for the admission criteria which would constrain them to dismiss the appeals even though the criteria discriminated as between siblings and were capable of operating harshly in individual cases such as those of these four children. But the admissions criteria were not “self justifying”. The statement then refers to details of and evidence about the adoption of admissions criteria, adverting to the question whether they had been reconsidered in 2000, not just in the usual yearly consultation round, but specifically in the light of the Human Rights Act. The Panel concluded from evidence given on behalf of Hounslow that:
“The LEA had not addressed itself at all to the question whether discrimination as between PAA resident siblings and non-PAA resident siblings was proportionate to the aim to be realised – presumably the aim of achieving a fair balance in the allocation of school places overall. Nor had it addressed itself to the broader, underlying question whether the policy of giving PAA resident non-siblings priority over non-PAA resident siblings was proportionate to that aim. Indeed we did not consider that after 2 October 2000 the LEA had given any thought at all to the impact of the Human Rights Act on its primary school admission policy.”
- Having recorded briefly the submissions on behalf of the parties, the statement then concluded:
“Rather to my surprise, we felt we had to conclude that the LEA had not discharged the fairly low burden of showing a rational basis for the criteria. Given the harsh way in which these criteria were undoubtedly capable of operating, and had operated in the case of these four children, we did not think it was adequate merely to recite the history of the process and the historic rationale for the creation of PAAs and for giving them primacy over a sibling link. We felt that a form of social engineering that may have been acceptable in the 1980s and early 1990s was not necessarily acceptable after 2 October 2000. We looked to the LEA to convince us that it was. The LEA did not succeed in doing so. I do not accept that our decision to that effect was one that no reasonable admission appeals panel could have reached.”
- The inconsistency which Hounslow contended for between the decision letters and this witness statement was that the decision letters disclaim any decision as to the lawfulness of the admissions criteria on the basis that the Panel were not the proper forum to judge the lawfulness of the criteria under the Human Rights Act; but the witness statement shows that the Panel did just that.
The judge’s decision
- Maurice Kay J gave a detailed and closely reasoned judgment. As to the first and main basis of Hounslow’s case, that is that it is no part of an appeal panel’s function to sit in judgment on admission criteria by considering whether it was reasonable to apply them or whether they were lawful, the judge recorded Mr Oldham’s submission that the Panel’s jurisdiction under paragraph 12 of Schedule 24 related to the particular decision not to admit a particular child, and not to the antecedent decision to adopt particular admission criteria. The statutory scheme entrusts the setting of admissions criteria to local education authorities. This is controlled by a consultation process and by access to an adjudicator, whose decision might be subject to judicial review. Appeal panels were likely to be ill-equipped to conduct enquiries and make decisions akin to judicial review. The exercise of such a power might bring administrative chaos. The whole idea is to provide a relatively speedy, inexpensive and simple way for parents to appeal against admission decisions on an individual basis. If a process akin to judicial review is to be undertaken, it will become slower and will be colonised by lawyers giving rise to increased expense and the possibility of consequential applications to the Administrative Court.
- Maurice Kay J referred at length to the Sheffield and South Gloucestershire cases. Having considered the parties’ submissions, he concluded that the Sheffield case manifestly compelled the conclusion that a panel, to put it at its lowest, can have regard to unlawfulness. He did not consider that this was limited to procedural flaws. But nothing in that case or in the South Gloucestershire case suggested that a panel should involve itself in the resolution of serious disputes about the lawfulness or otherwise of admissions criteria promulgated by local education authorities. The Sheffield case should be read as limited to established or self evident unlawfulness. The present case was not such a case, nor could a reasonable appeal panel have considered that it was. In these circumstances, the Panel ought not to have taken upon itself the task of determining the issue of unlawfulness. In effect that is what it did, notwithstanding the ambivalence of the decision letters. When it became apparent what the issues were, the Panel ought to have acceded to the application to adjourn pending judicial review. Not to do so was wrong in principle in the circumstances of this case. The judge did not accept that such an approach would give rise to a flood of applications for judicial review. When they do arise, experience shows that they can usually be determined within a procedural framework which enables finality to be achieved without undue interruption of the education of the children concerned. The judge considered that these conclusions were consistent with the 1998 Act, the regulations and the code of practice. They reflected what he believed to be their policy and purpose. This was not to detract from the independence of panels, which merited the protection of the courts, but only within the sphere of a panel’s legal competence. To the extent that his conclusions might conflict with parts of the South Gloucestershire case, the judge considered that those were an unwarranted and inappropriate extension of the Sheffield case. He accordingly decided that the first ground of challenge succeeded. He did not consider that the Panel had failed to have regard to the code of practice and noted their reference in the decision letters to paragraphs B12, B13 and B14.
- As to the two grounds of challenge based on inconsistency, the judge said that, notwithstanding Mr Kerr’s valiant attempt to explain and justify the language and reasoning of the Panel, it did not meet the challenge. The decision letter was in truth utterly inconsistent and ambivalent. On the one hand, it spoke of the adoption of the admissions criteria as being “not a decision that a reasonable admissions authority would make”, and on the other hand maintained that whilst the appeals were allowed because the criteria were unlawful, the panel “did not decide whether it was entitled to consider the lawfulness” of the criteria. The judge considered that this was more sophistry than sophistication and he considered the ground of challenge to be made out. Of the inconsistency contended for between the decision and Sarah De Almeida’s witness statement, the judge sympathised with the Panel’s predicament. But he found it impossible to conclude that the Panel’s approach in the letter was consistent with that described in the witness statement. The human rights considerations in the witness statement were not those articulated in the letter, in which the Panel say that there were not the proper forum to judge the lawfulness of the criteria under the Human Rights Act.
- As to the contention that the Panel’s decision that Hounslow’s admission criteria were unreasonable was itself perverse, the judge said that it was beyond dispute that the policy was lawful in the 1980s and early 1990s. He referred to R. v. London Borough of Greenwich ex parte Governors of John Ball Primary School (1989) 88 LGR 76. He could find no evidence of any social or educational change in the early 1990s. At least 20 other local education authorities operated a similar policy. The only identified change was the coming into force of the Human Rights Act on 2nd October 2000. The judge considered that the evidence, which he examined, did not justify the Panel’s conclusion that Hounslow had failed to take account of the impact on families of its admissions policy. He considered that the Panel’s decision was perverse. The corollary of it was that “any local education authority which prioritises without giving primacy to siblings ventures into or flirts with unlawfulness.” If, contrary to the terms of the decision letters, the Panel’s decisions were based on human rights considerations, the judge considered that nothing in authorities to which he had been referred “disposes me to the view that the LBH’s admissions criteria offend any article in the Convention or the First Protocol, nor could it reasonably have been thought that they did.”
- The judge considered that the decision letter in the “S” appeal made it abundantly clear that the issues in that case were not at all the same as those in the appeals before him. He did not consider that there was any basis in that ground of challenge. I entirely agree with him on this point and would summarily reject that part of the respondent’s notice which suggests that the judge was wrong here.
- For these reasons the judge held that the application for judicial review was successful. He ordered the Panel’s decision to be quashed and remitted the appeals to a differently constituted panel to be reconsidered. By agreement, the rehearings have not yet taken place. Time has passed. We are told that two of the four children have now been admitted to Grove Park School.
Grounds of appeal and respondents’ notice
- The Panel appeal on the grounds that their decision that Hounslow’s decision not to admit the children were unreasonable was both rational and within the range of reasonable decisions which the panel were entitled to make; that the judge’s restrictive construction of paragraph 12 of Schedule 24 of the 1998 Act was wrong; that the judge was wrong in deciding that the Panel was only entitled to consider unlawfulness if this was plain and obvious; that he was wrong to decide that the Panel was wrong in principle not to adjourn appeals for judicial review; that he was wrong not to consider the unreasonable and unlawful nature of Hounslow’s alternative proposals for the children’s education; that he was wrong to conclude that the European Convention of Human Rights had no application; and that he was wrong in his findings of inconsistency.
- By respondent’s notice, Hounslow seek to uphold the judge’s decision on the additional grounds that, contrary to the judge’s findings, the Panel failed to have regard to the code of practice; and that the judge was not bound to follow the Sheffield decision, because it was a decision under different earlier legislation, which held that the appeal committee should take account of procedural unlawfulness, rather than alleged unlawfulness of admission criteria themselves.
- Mr Kerr submits that the judge’s decision was wrong. The decisions of the Panel were lawful. The constitution of appeal panels now makes them independent of local education authorities, and they are given the task of determining ultimately whether children should go to a particular school. Even under the former legislation under which appeal committees were not wholly independent of the local education authority, an appellant had “the right to an independent and general scrutiny of his case” and “no restriction was placed on the grounds of the appeal or the nature of the representations which could be made to the committee” – Pill LJ at 522G and Peter Gibson LJ at 526D respectively in the Sheffield case. The Panel in this case were obliged by statute to decide whether Hounslow’s decision were ones “which a reasonable authority would make in the circumstances of the case.” These included the admission criteria and the effect of applying them to each of the four children. The Panel were not obliged to apply unlawful admission criteria unquestioningly or challenge them in judicial review proceedings. Hounslow’s submissions to this effect are wrong and not justified by administrative convenience. The Panel were entitled and bound to consider the argument that the criteria were so unreasonable that a reasonable authority would not apply them to these children. The Panel were entitled to reject Hounslow’s argument to the contrary. In particular they were entitled to reject the argument that the decisions were reasonable because, if the parents wanted their children educated at the same school, they could move the whole family to a new school. The judge was wrong to hold that the Panel could only consider illegality in the admission arrangements if it was plain and obvious. There can be no distinction between procedural unlawfulness and any other form of unlawfulness such as irrationality or breach of Convention rights.
- Mr Kerr submits that the correct approach to admission criteria where a panel has to apply paragraph 12 of Schedule 24 is as follows. Theoretically, some criteria could be so extreme that no panel would ever uphold a decision to refuse a school place by applying them. But the possibility of an admission authority adopting criteria of this kind can be discounted in practice. Most criteria will be readily recognised as rational and lawful. There may however be an intermediate category which are neither obviously lawful nor obviously unlawful, but which may operate very harshly or interfere with human rights. These may require justification if they are challenged, but the local education authority need only defend them to the extent necessary to justify their application to an individual child. Whether panels are concerned with the legality of admission criteria is a question of fact in each case. The standard to be applied, where admission criteria require justification, is that of judicial review.
- On these considerations, Mr Kerr submits that the Panel’s decisions were not amenable to judicial review. Their decision in substance was that Hounslow’s decisions not to admit the four children were unreasonable within the terms of paragraph 12 of Schedule 24. They were entitled on the evidence to reach that conclusion. They did not decide that the admission criteria were unlawful. All they did was to decide the only issue on which Hounslow chose to contest the appeals. An appeal panel is a public authority obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with Convention rights. The panel was entitled and obliged to have regard to the Convention rights of the children and Stanley Burnton J was correct in what he said on this topic in the South Gloucestershire case. Maurice Kay J. was wrong to say that Stanley Burnton J’s decision was an unwarranted extension of the Sheffield case.
- As to the decision letters, Mr Kerr submits that the judge misinterpreted them. He took one sentence out of context to conclude that the Panel were in substance purporting to quash the admissions criteria while disavowing any intention of doing so. If the letters are read as a whole and in the context of the parties’ submissions, the Panel carefully avoided doing this. They decided the appeal by specific and correct reference to the terms of paragraph 12 of Schedule 24, but had no choice but to do so with reference to the only submissions of substance that Hounslow made. The same applies to the judge’s decision that the decision letter and Sarah De Almeida’s witness statement are inconsistent. The statement in the decision letter that Hounslow “failed to take account of the impact on families of its admissions policy” was a reflection of the human rights case which the parents made. The Panel were entitled to conclude on the evidence that Hounslow had failed to consider the balance of interests between children living close to the school and those with a brother or sister already at the school.
- Mr Kerr submits that the judge was wrong to say that in principle the Panel should have acceded to Hounslow’s application to adjourn for judicial review. As will be seen, I agree with this submission.
- Mr Friel, on behalf of the parents of the four children, made very helpful written and oral submissions on their behalf and in support of the Panel’s appeal. He gave details of the individual circumstances of the children and their families. He pointed out, as relevant to Hounslow’s proposals for two of the children, that section 444 of the Education Act 1996 makes the parent of a child who is a registered pupil at a school criminally liable, if the child fails to attend the school regularly. Although it might be a defence to show that no suitable transport arrangements have been made, a proposal which contemplates that a child will necessarily be late for school regularly cannot be acceptable. He drew attention to particular features of each of the cases to submit that there would be infringement of Convention Rights. He submitted that the judge failed to take into account the individual circumstances of each child: and he came close to accepting that the Panel’s decision suffered from the same omission. He submitted that decisions of appeal panels should not be dissected as if they were chancery documents. Parliament has entrusted appeal panels with consideration of issues such as this Panel rightly considered. Each case depends on its own facts and it has been overlooked that appeal panels do not set precedents and that the facts of the present appeals were highly unusual. Panels are not usually faced with local education authorities who suggest that children can readily arrive late for school or that families should move the schools of all their children without regard to their interest solely because one child is not admitted to the school. Mr Friel further submits that, if the Panel’s decisions contained an error of law, the court should have made a declaratory order, but in its discretion not set the decisions aside.
- Mr Oldham supports the judge’s decision relying on the same essential submissions which he advanced before the judge. It is for the admission authority to determine admission criteria and they have a very wide discretion. The legislation gives appeal panels no power to quash, review or declare unreasonable admission criteria. That is a matter for the adjudicator, whose decision may be the subject of judicial review. Paragraph 12 of Schedule 24 enables an appeal panel to decide that a particular admission decision is perverse, but this Panel did not in substance do this. In substance it decided the general issue that the admission criteria were perverse. The language in which they expressed their decision was that of judicial review in its purest form. The judge was correct to decide that the decision in the Sheffield case was limited to established or self- evident unlawfulness and did not extend to a contentious inquiry, akin to judicial review, into the reasonableness of admission criteria which were not self-evidently unlawful. The Sheffield case was concerned with established procedural unlawfulness. Mr Oldham reserves the right to contend in the House of Lords that the Sheffield case was wrongly decided. He would clearly argue in support of the substance of the dissenting decision of Laws LJ in that case.
- Mr Oldham submitted that many schools are severely oversubscribed and each year local education authorities have little time in which the ensure that appeals are heard and determined so that parent may make alternative choice of school, if they have to, and so that schools may know how many children they will have. Admission appeals must therefore have been intended to be a relatively quick, inexpensive and simple way of determining these matters. The power which the Panel suggested that it had was contrary to the statutory scheme of limiting the size of infants classes. Further the judge was correct to decide that in substance there was inconsistency between what the Panel decided and what they said they were not deciding: and the same applies with Sarah De Almeida’s witness statement. He was correct to decide that the Panel’s decision to the effect that the Hounslow’s admission criteria were perverse was itself perverse.
Discussion and decision
- I have already said that the Sheffield case did not concern admission to an infants class at a maintained school and that the 1996 Act, under which it was decided, did not have a provision equivalent to paragraph 12 of Schedule 24 of the 1998 Act. The issue in the Sheffield case was a balance of prejudice under what is now sections 86(1), (2) and (3)(a) of the 1998 Act. It did not concern admission to an infants class. The 1996 Act did contain what is now paragraph 11 of Schedule 24 of the 1998 Act. This provides that the matters to be taken into account by an appeal panel in considering an appeal shall include any preference expressed by the parents and the local education authority’s admission arrangements. Paragraph 12 does not, in my view, negate paragraph 11 for appeals where the admission decision was made on the basis that to comply with parental preference would take the size of an infants class above 30. Parental preference remains relevant, but the scope for a successful appeal under paragraph 12(a) is limited to cases where the appeal panel are satisfied that “the decision was not one which a reasonable admission authority would make in the circumstances of the case.” It is accepted all round that this is a perversity test. The “decision” is “the decision under appeal”, that is the decision not to admit the individual child. The “circumstances of the case” must, in my view, include the child’s particular circumstances including, as paragraph 11 requires, any preference expressed by the parents. The circumstances also include the local authority’s admission arrangements. So the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit this particular child. I have already indicated my view that the Panel’s decisions in the present cases did not decide the appeals by reference to individual circumstances. For this reason, the decisions did not, in my judgment, address the question which paragraph 12(a) requires to be addressed.
- I have considerable sympathy with the Panel because of the ways in which both Hounslow’s and the parents’ cases were conducted. Hounslow’s contention was that the Panel had no business to question the admission criteria. The parents’ cases attacked the admission criteria as unlawful in the light of human rights considerations. The grounds of appeal to the Panel did rely on individual circumstances which were referred to during the two hearing sessions, but these were not the main battleground. The parents and the Panel were influenced by the South Gloucestershire case, but there appear to have been other influences.
- We have been shown correspondence from Hounslow leading up to the appeals. In a letter dated 20th September 2001 in one of the cases, Hounslow enclosed an Appeal Registration Form. They said that under the 1998 Act, which limits infants class sizes to 30, there were only two possible grounds of appeal. That was correct by reference to paragraph 12 of Schedule 24, the terms of which are referred to in paragraph 11 of the Registration Form. The letter then stated that “In previous years, the family circumstances have been able to be grounds of appeal, but this is no longer the case.” That was incorrect for reasons which I have indicated. An Appendix to the Registration Form contained “Advice for Parents”. This said that, in this type of appeal, the appeal panel are only allowed to look at two things; first, whether the admission authority stuck to its own rules [that is, paragraph 12(b)]; and second, whether the admission authority acted unreasonably [that is, paragraph 12(a)]. It is said that the law defines “unreasonable” as being completely illogical, or not based on the facts of the case. It is then said:
“The facts of the case include the published admission arrangements, the number of applicants, the number of classrooms at the school, and other factors to do with the school or the admission authority. The facts of the case do not include facts particular to your child or any special reason you might have for wanting your child to go to that school (the convenience of the journey between your home and the school, for example).
You are free to talk about personal factors at the appeal hearing if you want to, but in this type of appeal the appeal panel cannot take them into account unless they are relevant to one or other of the two things they are allowed to look at.”
- For reasons which I have given, that was in part a misrepresentation of paragraph 12(a) of Schedule 24, which positively requires appeal panels to examine the individual decision. This must mean that individual circumstances are relevant. Similar points were mistakenly made in a letter dated 4th October 2001, which speaks of advice from the Department of Education and Skills. So the parents were wrongly told that they could not rely on their individual circumstances. Unsurprisingly perhaps, their cases were not in the main so directed.
- Hounslow also relied on the code of practice, which, as section 84(1) of the 1998 Act says, is to contain “practical guidance”. Paragraph 4.54 of the code, under the heading “Infant class sizes” explains that the scope of appeal panels to uphold an appeal against non-admission has been limited, and there is allusive reference to paragraph 12 of Schedule 24. It is said that more details are set out in Annex B to the code. “Nevertheless, it is important in these case that LEAs and school governors responsible for arranging appeals inform parents that they still have a right to attend their appeal hearing.” This suggests that, where the appeal concerns the refusal to admit a child because of the statutory limitation on the size of infants classes, the appeal hearing is likely to be a formality scarcely worth attending.
- Paragraph B.9 of the Annex to the code explains that appeal panels normally carry out a two stage process in reaching their decision. Paragraph B.10 then states:
“In “class size prejudice appeals” (appeals where the admission authority alleges that admission would cause prejudice as a result of qualifying measures required to comply with class size legislation), the grounds of appeal on which a panel can uphold an appeal are much narrower. Once the admission authority decides that the admission will cause prejudice to efficient education or the efficient use of resources as a result of the qualifying measures which are needed to comply with the class size limit and that this prejudice outweighs the parents’ preference, the appeal panel cannot intervene because it disagrees with the decision that such prejudice has occurred, nor can the panel decide whether that prejudice outweighs parental considerations”
- Paragraph B.13 then states in a section referring to paragraph 12(a) of Schedule 24:
“The appeal panel can uphold the appeal only if it determines that the authority’s decision that class size prejudice would arise was one which no sensible authority, properly appraised if its responsibilities, would have made taking account of such factors as the school’s admission policy, the internal operation of the school and its ability to accommodate pupils in compliance with the class size limit.”
- In my view, these paragraphs misrepresent the relevant legislation and go beyond “practical guidance”. Mr Oldham was inclined to agree. As I have said, there are situations where a local education authority is obliged by section 86(2) of the 1998 Act to comply with an expression of parental preference. By a combination of subsections (3)(a) and (4), they are not obliged to comply with a parental preference, if to do so would take the size of an infant class above the statutory limit of 30. The fact that the local education authority does not have to comply with the parental preference does not mean that they do not have to take it into account. Nor does it mean that there can be no basis for an appeal against a local authority’s decision to refuse admission, if their reason for refusal is that the statutory limit on the size of infant classes would be exceeded. The ground of appeal is that “the decision is not one which a reasonable admission authority would make in the circumstances of the case”. The “decision” is the “decision under appeal”, that is the particular decision not to admit the particular child, not, as paragraph B.13 suggests, “the decision that class size prejudice would arise.” The “circumstances of the case” must include that child’s circumstances. The available ground of appeal is very limited. It has to be shown that the local education authority’s decision not to admit the child was perverse, which may be very difficult indeed, if there are more than 30 children competing for admission to the relevant class. But the circumstances of the particular child are not irrelevant.
- As I have said, in my view the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit the particular child. I accept Mr Kerr’s submission that the admission arrangements may normally be taken for what they are as reasonable, and that the appeal panel’s consideration will concentrate on their application to the particular child. The Sheffield case, with whose majority decision I respectfully agree, shows that admission arrangements are not immune from examination as to their legality. But it seems to me that these appeals have got bogged down with questions of legality and the possibility of judicial review.
- As to judicial review, in my view, Stanley Burnton J was wrong in the South Gloucestershire case to encourage proceedings for judicial review in the course of an appeal to an appeal panel, and Maurice Kay J was wrong in the present case to say that the Panel were wrong in principle not to accede to Hounslow’s application to adjourn for that purpose. The task of an appeal panel under this legislation, and in particular under paragraph 12 of Schedule 24, is to make a speedy decision as to the reasonableness of the local education authority’s decision not to admit the particular child to an infants class. The basis of the appeal decision includes, but is not necessarily exclusively limited to, the parents’ preference, the published arrangements for admission, the circumstances of the particular child and family, and the practical consequences for both the school and other children competing for places in the relevant infants class or classes. The published admission arrangements may normally be taken for what they are without “judicial review” analysis. But, as the Sheffield case indicates, they are not immune from criticism nor by themselves determinative of the appeal. An appeal will succeed under paragraph 12(a) of Schedule 24 if inflexible application of the published admission arrangements to the circumstances of a particular child results in an admission decision which is perverse. That question may have to take into consideration both the reasons for the published arrangements and the parental preferences and needs of other children competing for the same limited places in the class. The circumstances of a particular child cannot be viewed in isolation. Consideration of the published arrangements may conclude that they do not in detail comply with statutory requirements, as in the Sheffield case. That would be relevant, but not determinative of an individual appeal other then in quite exceptional circumstances. There is nothing intrinsically unlawful about admission arrangements which favour on the one hand children who have a brother or sister at the school, or on the other hand those who live close to it. But inflexible application of either criterion – or, in another case, of other criteria - may produce a perverse decision in an individual case. Although decisions of a local education authority as to admission arrangements are not in principle immune from challenge on judicial review, it would, in my view, be quite exceptional for it to be appropriate for an appeal before an appeal panel to be interrupted for such a challenge. At a practical level, parents and children up and down the country need to know where the children are to go to school at the beginning of September. This needs a speedy decision unencumbered by lawyers. I am not clear who is supposed to bring the judicial review proceedings, but I certainly do not think that it should be either the appeal panel or the parents. Appeal panels are there to make speedy decisions in individual cases and most parents just want their children to go to the most appropriate school. At the statutory level, other than in the most exceptional circumstances - which certainly do not exist in the present cases - the task of an appeal panel under paragraph 12 of Schedule 24 should not need the assistance of judicial review. Those involved in these appeals should not, in my view, be expected or encouraged to think in terms of it.
- As to illegality, the very use of the term – which lawyers are scarcely able to avoid – seems to me to have had the effect in the present cases of diverting the Panel from their main task. At the analytical level, I think that Maurice Kay J was perhaps correct to distinguish between the accepted procedural error in the Sheffield case and the sweeping contention in the present case that Hounslow’s admission arrangements were unlawful. Appeal panels are obliged to take appropriate account of procedural or substantive errors, if they are relevant to the question they have to determine. This may readily apply to relevant errors which are established or self-evident. By contrast, although general admission arrangements are not, as I have said, immune from examination, it will scarcely ever be necessary to go further than to consider whether their application to the particular child was perverse. As both Pill and Peter Gibson LJJ said in the Sheffield case, the appeal panel’s duty and primary function is to determine the merits of individual appeals. In the present cases, Hounslow’s admission arrangements were not in general intrinsically or obviously unlawful. It was not, in my view, appropriate or necessary for the Panel to undertake what I am persuaded was in substance a general judicial review examination of them. The question whether a particular decision not to admit a child was perverse could, and in the present cases should, have been decided by taking note of any submission as to the admission arrangements generally, but without the need to decide anything other than their application to the particular case. It follows that, in my view, Maurice Kay J was pragmatically correct in saying that the Panel ought not to have taken upon itself the issue of unlawfulness in the present cases. His statement that the Sheffield case should be read as limited to established or self-evident unlawfulness went hand in hand with his view that the appeals should have been adjourned pending judicial review. I have explained that I disagree with this view. I do not consider that the Sheffield case should be read as absolutely limited to established or self-evident unlawfulness. At the same time, I consider that Stanley Burnton J’s statement in the South Gloucestershire case that paragraph 12(a) of Schedule 24 covers the question whether the policy implemented by the local education authority was lawful and reasonable, although perhaps literally correct, gives undue encouragement to appeal panels to embark on wide-ranging inquiries which will normally be neither appropriate nor necessary, thus tending to divert them from their main task.
- Just as I consider that these appeals have got bogged down with submissions about illegality, so perhaps also with human rights. I indicated during the hearing my view that extended reference to the European Convention of Human Rights and cases decided under it would not advance matters. That did not of course mean that Convention rights are irrelevant – far from it. Of course, Hounslow, the Panel and this court are public authorities within section 6 of the Human Rights Act 1998 and the court is required by section 2 of the Act to take into account, among other things, decisions of the European Court of Human Rights. But in the present cases the relevant considerations are obvious and can be simply expressed. A local education authority's school admission arrangements must be fair and fairly operated. If a school is over-subscribed, there will necessarily be discrimination, because not every child whose parents apply for admission can be admitted. This may be particularly acute with admissions to infants classes, because of the statutory limit on their size. No one suggests that a limit of this kind is other than desirable. Discrimination needs to have reasonable objective justification. Some children will have stronger cases than others for admission. A child with an elder brother or sister in a school may well have a strong case wherever they live; but so may a child who lives close to the school. Neither child’s case is by definition stronger than the other child’s case. Neither child’s relevant convention rights are by definition infringed, nor is it by definition objectively unfair, if either of them fails to gain admission. If there are too few infant class places for all who apply, local education authorities have to make practical admission decisions which are objectively fair and by a process which is fair.
- In the light of all this, if it comes to an appeal to an appeal panel, parents need to make a particular case which is so compelling that the decision not to admit the child is shown to be perverse. A local education authority opposing an appeal will need to explain their admission arrangements, explain their particular problems in relation to the school in question, and show that, unfortunate though it may be, it was objectively fair not to admit the child in question. They may wish to show that they had to refuse admission to several children with good cases, but that admitting one or more of those children would have entailed refusing one or more of those who were admitted because of the class size limit. As to the Panel, their task is not simply to rubber stamp the local education authority’s decision, but they can only uphold the appeal if they conclude that it was perverse in the light of the admission arrangements to refuse to admit the particular child. Their task is not to take again the original decision.
- In the result, I would uphold Maurice Kay J’s decision, but not for all the reasons which he gave. My main reason is that the Panel did not address the question which paragraph 12(a) of Schedule 24 requires them to address. I accept in part the submissions of each party but not all of them. I agree with the judge that in the present case it was neither necessary nor appropriate for the Panel to involve itself in extensive consideration of the lawfulness of the admission criteria. But I do not accept Hounslow’s submission that the Panel were obliged to take the admission arrangements as immune from all criticism or inquiry; and I do not consider that the Sheffield case should be read as absolutely limited to established or self-evident unlawfulness. I consider that the judge was wrong in the present case to say that the Panel were wrong in principle not to accede to Hounslow’s application to adjourn for judicial review. I see the force of the judge’s decisions about inconsistency, but I do not consider that a formal decision on that issue is necessary. I agree with the judge that Hounslow’s admission arrangements were not intrinsically unfair.
Lord Justice Tuckey: I agree.
Lord Justice Kennedy: I also agree.
Lord Justice Kennedy: For the reasons set out in the judgment handed down, this appeal will be dismissed. There will be no order as to costs, and should any difficulty arise in relation to costs, the court will deal with the matter on a later occasion for which there will be liberty to apply provided the issue is put first in writing before the matter is listed.
Order: Appeal dismissed. No order as to costs but with liberty to apply.
(Order does not form part of the approved judgment)