England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE OWEN
(QUEEN'S BENCH DIVISION)

		Royal Courts of Justice Strand London WC2
		23rd July 1999

LORD JUSTICE LAWS:

This is an appeal by permission of Sedley LJ, given on 22 April 1999, against the decision of Owen J made on 19 March 1999 when he granted the appellants a declaration to the effect that the Sheffield local education authority's secondary schools admissions procedure was unlawful, but declined to grant any such other relief as would have entitled the appellants to further hearings before the relevant statutory appeal committee with a view to gaining entry to the secondary school of their choice. It is important to notice at the outset, for reasons which will become apparent, that the decisions impugned in the proceedings are, expressly, determinations of a statutory appeal committee made between April and May 1998.

The two appellants are schoolchildren living in Sheffield. Up to the summer term of 1998 they were pupils at Hunters Bar Primary School. They were due to transfer to secondary school in September of that year.

The procedure adopted by the local education authority ("LEA") for allocating pupils to secondary school in 1998 commenced in September 1997. On 3 September 1997 the appellants' parents received a standard form letter, which identified the "catchment" school for each child. Then it stated:

"This is the catchment school which we would like to offer your child when s/he transfers to secondary school next September."

In each case the letter was accompanied by a form upon which the parents were asked to indicate in Section 1 whether they would like a place at the catchment school; if not, they were asked to complete Section 2, indicating that they wished to apply for a place in an alternative Sheffield maintained school. Section 1 did not invite the parents to give reasons for their choice of the catchment schools. But Section 2 (which asked them to specify two schools in order of choice) positively required that reasons be given. It stated:

"It is essential that you give full details of your reasons for your first preference on the back of this form, together with any relevant evidence in support of your application, as this information may be passed to the Admissions Working Party for consideration." (original emphasis)

It is conceded by Mr McManus QC for the LEA (as it was by him in the court below) that the authority's allocation procedure for secondary schools in 1997/1998 was unlawful because it failed to fulfil the requirement imposed by section 411(1)(b) of the Education Act 1996. Section 411 provides in part:

"(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 functions and

(b) to give reasons for his preference.

(2) Subject to subsection (3)..., a local education authority and the governing body of a county or voluntary school shall comply with any preference expressed in accordance with arrangements made 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..."

As I have indicated the form sent to the parents in September 1997 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). This was the subject-matter of the declaration granted by Owen J.

In the event, the parents of both appellants filled in Section 2 of the standard form, expressing a preference for High Storrs School which was not in either case the catchment school. They gave reasons in accordance with the request on the form. In February 1998 they were notified that their children had been allocated to Abbeydale Grange School, which was the catchment school for both appellants; thus their request for an allocation to High Storrs was rejected.

The parents appealed to the statutory appeal committee. The appeals were heard in April and May 1998 and were dismissed. A report from the head teacher of High Storrs dated 26 March 1998 shows that as at January 1998 the schools had 1,744 pupils, against a capacity figure of 1,635: an excess of 109. The report proceeds to set out details of some of the consequences of the school's being so full, and associated difficulties. There was a shortfall of general purpose classrooms; many of the small classrooms were at capacity with furniture for 30 pupils; there were health and safety implications.

The policy of the LEA as to the allocation of school places identified five potential classes of children which were arranged in order of priority as follows (I summarise the description of the classes):

(1) If the child is the subject of a statement of special educational needs;

(2) If the child lives in the catchment area of the school;

(3) If the child has an older sibling at the school on the date of admission;

(4) If the child attends a primary school which is designated as a feeder to the school;

(5) Medical/social/special educational needs;

(6) For any remaining places, pupils would be prioritised by distance from the school.

It is common ground that the appeals committee had to apply what has been called a "two-tier" balance of prejudice test. That is, they first had to decide whether the child's admission to the school in question would prejudice the provision of efficient education or the efficient use of resources; if so, they then had to decide whether that prejudice was outweighed in the particular case by parental preference. The chairman of the appeal committee has sworn an affidavit in which he deposes to the fact that "the prejudice argument was overwhelming"; I take that to mean that the committee found that the prejudice to efficient education or resources plainly outweighed considerations of parental choice. There is also evidence that the committee adopted a procedure by which appellant children were initially allocated within 3 categories A, B and C. "A" is a compelling case, "B" is marginal and "C" is less compelling. These appellants were initially allocated to category C.

As a matter of history the appellants were placed in independent schools by their parents as from September 1998, where they presently remain; but the parents are finding it very difficult to raise the fees. The appellants are still on the waiting list for High Storrs, one in second place and the other in third.

A number of points were taken at first instance which are not now pursued. The Notice of Appeal asserts only the following three grounds:

(1) The judge should have held that a freshly constituted appeal committee could find that such prejudice as the appellant suffered, arising out of the LEA's unlawful admissions procedure, outweighed the prejudice to efficient education which would arise if the appellants were admitted to High Storrs. This ground goes to the utility of the grant of wider relief than the judge was prepared to give. In short the appellants say that the decisions of the appeal committee should be quashed so that further hearings might be conducted: there exists a reasonable, not fanciful, chance that the appeals to the committee might then be successful.

(2) The judge failed to apply a dictum of Collins J in R v Rotherham ex p Clark [1998] ELR 152, to the effect that the unlawfulness of an admissions policy might be taken into account by the appeal committee.

(3) The judge should not have placed the reliance he did upon the fact that High Storrs School was full, in light of his acceptance that the appeal committee was empowered to override that fact and require the school to accept a pupil if it so directed.

There is also a respondent's notice, asserting that the judge's refusal to give relief beyond a declaration should be affirmed on the additional ground that the appeal committee had, as a matter of jurisdiction, no business entering into the legality of the LEA's admissions procedure, which "had to be treated by the appeal committee as lawful unless and until quashed..." As it seems to me this is the converse of the second ground of appeal.

I think it convenient to take the respondent's notice first. It goes to the jurisdiction of the appeal committee: unless Mr Bean QC for the appellant can demonstrate that the appeal committee decisions are unlawful because they failed by some means to confront the illegality in the LEA's admission procedure, there can be no basis upon which certiorari could properly go to quash those decisions. The statutory provisions concerning the establishment and jurisdiction of the appeal committees are contained in s.423 and Schedule 33 in the Education Act 1996. S.423(1) in part provides:

"A local education authority shall make arrangements for enabling a parent of a child to appeal against -

(a) any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions...".

Part I of Schedule 33 is headed "Constitution of Appeal Committee". Paragraph 1 provides in part:

"(1) An appeal pursuant to arrangements made by a local education authority under section 423(1) shall be to an appeal committee constituted in accordance with this paragraph.

(2) An appeal committee shall consist of -

(a) one person nominated by the authority from among persons who are eligible to be lay members; and

(b) two, four or six other members nominated by the authority from among persons appointed by the authority under sub-paragraph (3).

(3) The persons appointed by the authority under this sub-paragraph shall comprise -

(a) members of the authority, and

(b) persons who are not members of the authority but who have experience in education, are acquainted with the education conditions in the area of the authority or are parents of registered pupils at a school,but shall not include any person employed by the authority otherwise than as a teacher.....

(6) The members of an appeal committee who are members of the authority shall not outnumber the others.

(7) A person who is a member of the authority or employed by the authority shall not be chairman of the appeal committee."

Part 2 of Schedule 33 is headed "Procedure". Paragraph 11 provides:

"The matters to be taken into account by an appeal committee in considering an appeal shall include -

(a) any preference expressed by the appellant in respect of the child as mentioned in section 411, and

(b) the arrangements for the admission of pupils published by the local education authority or the governing body under section 414."

Section 414(1) provides:

"A local education authority shall, for each school year, publish particulars of -

(a) the arrangements for the admission of pupils to schools maintained by the authority other than aided or special agreement schools,

(b) the authority's arrangements for the provision of education at schools maintained by another local education authority or not maintained by a local education authority, and

(c) the arrangements made by the authority under section 411(1) and 423(1) (admissions appeals)."

Mr Bean submits that the committee are legally at fault by reason of their having failed to take account of the unlawful element in the LEA's procedures. The first difficulty in his way is that that unlawful element was never pointed out to them. The Rotherham case had been decided by this court on appeal from Collins J before the committee sat, and it was held that an essentially indistinguishable procedure adopted by the Rotherham LEA was unlawful for failure to comply with section 411(1)(b). This was well known to the Sheffield LEA (which took the mistaken view that it did not affect their own procedures), but they did not bring it to the committee's attention. The parents of the appellants, who were not legally represented before the committee, did not know of it.

For my part, even if all else were equal, I would find it very difficult to see that the committee's decisions can properly be condemned as unlawful on the ground that they failed to take account of something never drawn to their attention. But there are much deeper difficulties.

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 Rotherham, and then proceeded to consider whether in 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. It would mean, as its seems to me inescapably, that in any case in which it was asserted on an appeal before the committee that the LEA's published arrangements for the admission of pupils (which the committee must take into account pursuant to paragraph 11(b) of Schedule 33) were legally defective, the committee would be bound to consider that proposition and adjudicate upon it. It may be there would be cases in which the legal error alleged was accepted by the LEA, or where the allegation was patently correct or patently unsustainable. There would be others - I imagine the majority - in which it would be a matter of dispute. A policy of the LEA might be impugned upon any of the established grounds of judicial review: illegality, irrationality, or procedural impropriety. Possibly intricate questions of statutory construction would fall to be canvassed. Questions as to the procedures adopted by the LEA in elaborating their policy might arise and would have to be resolved by evidence before the committee. There would be no little potential for debate as to what was, and what was not, a relevant consideration for the LEA to take into account. In short, the committee would be constituted the judge of the legal merits of the LEA's policy, exercising a jurisdiction across the same range of potential questions as arises in 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 section 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. Paragraph 11 of schedule 33 prescribes two matters which it is to take into account. Certainly paragraph 11 is not drafted so as to exclude from the committee's consideration all other matters. But I cannot see how a power of judicial review is implicitly to be found either in section 423 or paragraph 11. 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 have 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: contrast the High Court's jurisdiction to give declaratory relief or, as appropriate issue, to issue one or more of the prerogative orders.

While paragraph 11 of Schedule 33 is not as I have said drafted in exclusory terms, nevertheless its provisions constitute a powerful indication of the kind of exercise upon which the committee is enjoined to embark. It must "take into account" the matters there set out, with a view to deciding whether the parents' choice of school in the individual case should prevail over the allocation made by the LEA pursuant to its policy. A requirement to "take into account" any particular matter is in my judgment apt only to impose a duty to consider factual material. It is entirely inapt to impose a duty to adjudicate upon issues of law.

It was suggested in the course of argument that if the committee was not obliged "to take into account" a legal error made by the LEA, nevertheless it was at least entitled to do so. I do not think this can be right. Quite aside from the sense to be given to the expression "take into account", I cannot see how it can be asserted that the committee may choose whether or not to adjudicate upon a question of law, unless the suggestion is that the exercise of its jurisdiction, or some aspect of it, is discretionary, by analogy with the supervisory jurisdiction of the High Court. But such a proposition cannot possibly be got out of the statute.

Moreover the suggestion that the committee possess a jurisdiction akin to judicial review is to my mind hopelessly impractical. The committee is made up of lay persons (they have, I understand a legally qualified clerk) who are required to hear, year by year, a large number of individual appeals, and to do it speedily and relatively informally. We were told that in 1998 there were 49 such appeals from the Sheffield LEA. The prospect that the committee in disposing of its difficult and important workload might be obliged to hear intricate legal argument upon which it would then have to adjudicate with possibly far reaching consequences seems to me to be nothing short of a recipe for chaos. I do not of course mean that the committee members would not do their duty thoroughly and conscientiously as they do at present, nor that they would necessarily be likely to arrive at the wrong result. But hearings would be lengthened. Lawyers would be briefed much more frequently than at present. Decision after decision of the committee would be challenged in judicial review proceedings. There would be much uncertainty while such proceedings were pending. The efficient administration of school admissions would be gravely undermined.

It was urged in the course of argument that it must be wrong for the appeal committee to perpetuate or uphold a policy which is unlawful: suppose the policy involved discrimination on racial grounds. Mr Bean was inclined to accept that in that particular instance (which must surely be theoretical only) the committee, if it applied the racist policy, would itself thereby violate the race relations legislation, though we were not invited to look at the statutory provisions. More generally, it is plain that the committee must act in accordance with the general law: were it to arrive at a decision which fell to be condemned on Wednesbury grounds, the High Court would no doubt grant appropriate relief whether or not its decision was based or dependent on LEA policy. All this is very far from saying that the committee are to judge the legality of any such policy.

Mr Bean sought to draw some support from an observation of Collins J in the Rotherham case. Having held that Rotherham's policy was flawed for breach of section 411(1)(b) (and also, on different grounds, that decisions of the relevant appeal committee fell to be quashed), Collins J said at 167 B-C:

"Mr Goudie submits, and in my judgment correctly, that the knowledge of the committee that the parents had been prejudiced by the policy which I have decided to be flawed is a factor which there are entitled to take into account in reconsidering the appeals. Of course, the local education authority will no doubt take it into account because they initially will reconsider the matter in the light of my judgment and reach a decision whether any, or all, of these applicants' children are able, notwithstanding the problems of overcrowding, to be accommodated at Old Hall".

There is, I think, no gloss on this dictum in the judgments of their Lordships in the Court of Appeal, which upheld Collins J. Collins J was plainly not holding that the committee possessed the power itself to decide whether the LEA policy was unlawful. Were a committee faced with school admission arrangements which had already been condemned in the High Court as unlawful in some respect, 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. But that is a far cry from what is suggested here.

Mr McManus drew our attention to a decision of Popplewell J in R v Lancashire County Council ex parte M [1994] ELR 478. In that case there was before the appeal committee a letter from the Department for Education to the Chief Education Officer referring to a complaint received from parents whose child had been refused a place at the school of their choice on the ground that the admissions criteria for the school in question provided that children "in the non-Roman Catholic sector shall normally be given priority". The letter comments that such a criterion seems hard to justify. There was later a circular issued by the Department indicating the Secretary of State's view that it was not reasonable "for non-denominational schools to distinguish between applicants on the grounds their faith or denominational background". It was submitted to Popplewell J that the appeal committee should have taken the letter into account. The circular was not before them, but Popplewell J said (488D):

"...the sense of the circular if not the actual circular was before the appeals committee".

The passage relied on by Mr McManus is at 489 A-C:

"What is clear in this case is that the committee took the view that the policy which had been established over a number of years had been correctly applied by the local education authority. They have made it clear themselves that they did not take the question of religion into account. Assuming that they did, I find nothing unreasonable in that attitude. They were entitled to maintain a policy and not suddenly change the policy on the suggestion of the Department until that policy had been fully considered by the appropriate body, no doubt a working party, after discussion with the Department. For an appeal committee off its own back to decide to change the policy might in itself by the subject of judicial review."

I agree that this passage lends some support to Mr McManus' position. It is certainly consistent with the views I have expressed as to the nature of committee's jurisdiction. It is however fair to notice, from a reading of the judgment as a whole, that Popplewell J does not seem to have been invited to consider as a matter of principle whether the committee are invested with a power or duty to decide for themselves the legality of LEA policy.

I have discussed this whole question by reference to the proposition that the committee may or must decide the questions of law relating to school admission policies. In fact, of course, the legal error in this case does not relate to such matters as the published criteria for admission to Sheffield's maintained schools. Rather its subject-matter is anterior to the application of any such criteria. It concerns only arrangements made by the LEA to invite applications for school placements. In my judgment the arrangements made under section 411(1)(b) do not fall within Schedule 33 paragraph 11(a) or (b). 11(a) would of course embrace any reasons given by the child's parents for their choice of school, whether or not the parents had been invited to give reasons. But I do not think it would embrace any material showing whether in fact such an invitation had been issued. 11(b) in my judgment covers the matter set out in section 411(1)(a) and possibly (b), but not (c). Arrangements made under section 411(1) and 423(1) are not arrangements for the admission of pupils. If this is right, then the legal error which it is said the committee should have considered in this case is yet further distant from their statutory jurisdiction than would be a legal error contained in the admissions policy itself.

Since the conclusion of argument we have helpfully been provided with the text of recent legislation, the School Standards and Framework Act 1998, which enacts provisions in substitution for ss.411 and 423 and Schedule 33 of the Act of 1996. Schedule 24 (the successor to Schedule 33) provides by paragraph 12:

"Where the decision under appeal was made on the ground that prejudice of the kind referred to in section 86(3)(a) [sc. "if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources" - the analogue of s.411(3)(a)] would arise..., 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..."

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 appellant's individual 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. I mention it only because it strongly suggests that the committee cannot, in the eye of Parliament, be said to have possessed a wider judicial review jurisdiction under the anterior legislation.

For all these reasons I would uphold Mr McManus' argument on the respondent's notice. It follows that the anterior legal flaw in the LEA's procedures relating to the ascertainment of parents' wishes as to the choice of school cannot infect the legality of the committee's decisions. Accordingly there is no basis upon which any further relief, in particular certiorari to quash those decisions, might properly be granted to the appellants.

If that is right, it disposes of this appeal. If it is wrong, I would nevertheless dismiss the appeal on the ground that there is no basis upon which this court could properly interfere with the judge's exercise of his discretion not to grant any further relief. We were taken to some of the learning on the question when the Court of Appeal will overturn the exercise of discretion by a first instance court, notably the decision of their Lordships' House in G v G [1985] 1 WLR 647. I do not, with respect, find it necessary to say more than that the general rule seems to me well established, namely that this court will not do so unless satisfied that the first instance court erred in principle or arrived at a conclusion that was clearly wrong. I do not consider that the rule is engaged in this case. While some criticism may possibly be addressed to the language used by the judge at pp.10-11 of the judgment, it is clear that he concluded that further appeal hearings in this case would serve no useful purpose. He was entitled so to find. The prejudice (if any) to the appellants arising from the admitted legal flaw in the LEA's procedures is at best indirect. It consists in the possibility that if the LEA had required parents to state reasons for their choice of the catchment school, fewer parents within the catchment of High Storrs might have chosen that school. I cannot think that this bare possibility could reasonably be supposed to have made a difference to the number of places available at High Storrs such as to enhance to any perceptible degree the chance that either of these appellants might have succeeded in their appeals. The school was gravely overfull. The appellants had, unfortunately, a weak case on the six admissions criteria which I have set out. Moreover, were this court now to quash the committee's decisions, the cases of other children whose parents also appealed, and who remain on the High Storrs waiting list, would I think also have to be reconsidered: at the very least there would be a difficult question whether these two children's appeal could be freshly dealt with in vacuo.

I would dismiss this appeal.

LORD JUSTICE PILL: I agree that the application should be refused. As I read the judgment of Owen J, his decision not to grant relief beyond declaratory relief was based on his conclusion that the question of the availability of places at the school having been fully debated before the appeal committee, the illegality now revealed could not have led to a different decision in these particular cases. There was compelling evidence before the committee as to how full the school was. The anterior illegality in failing to give one category of parents the opportunity to give reasons for their preference as to a school cannot be expected in the circumstances of this case to make possible a finding of the appeal committee in the appellants' favour.

I do however wish to express my concern about the LEA's contention, rejected by Owen J but accepted by Laws LJ, that in deciding a particular case the appeal committee are obliged to apply policies of the LEA which have been declared to be unlawful. The statutory intention appears to me to be to confer upon the parents of a child a general right of appeal to an independent body. Section 423(1)(a) of the 1996 Act provides in a general way that a local education authority "shall make arrangements for enabling the parents of a child to appeal against any decision made by or on behalf of the child as to the school at which education is to be provided for the child in the exercise of the authority's functions (". Section 423(4) provides that Schedule 33 "has effect in relation to the making and hearing of appeals pursuant to arrangements made under this section".

Part 1 of Schedule 33 specifies the constitution of appeal committees. Under paragraph 1(2) an appeal committee shall consist of:

"(a) one person nominated by the authority from among persons who are eligible to be lay members; and

(b) two, four or six other members nominated by the authority from among persons appointed by the authority under sub-paragraph (3).

(3) The persons appointed by the authority under this paragraph shall comprise —

(a) members of the authority, and

(b) persons who are not members of the authority but who have experience in education, are acquainted with the educational conditions in the area of the authority or are parents of registered pupils at a school,

but shall not include any person employed by the authority otherwise than as a teacher."

Sub-paragraphs (6) and (7) provide:

"(6) The members of an appeal committee who are members of the authority shall not outnumber the others.

(7) A person who is a member of the authority employed by the authority shall not be chairman of an appeal committee."

Paragraph 5 of Schedule 33 prescribes who is eligible to be a lay member of an appeal committee. It excludes persons who have or at any time had any connection, of a kind that might reasonably be taken to raise doubts about his ability to act impartially in relation to the authority, with the local authority in question or any person who is a member of, or employed by, that authority. Similarly, persons with such connection with the school in question or any person who is a member of, or employed by, the governing body of that school are excluded. Paragraph 6 of the Schedule empowers the Secretary of State to make regulations requiring any local education authority to advertise for persons eligible to be lay members of any appeal committee and paragraph 7 requires a local education authority to indemnify members of any appeal committee against any reasonable legal costs and expenses reasonably incurred by those members in connection with any decision or action taken by them in good faith in pursuance of their functions as members of that committee.

Part II of Schedule 33 sets out the procedure to be followed by the committee. Under paragraph 10, the appellant must be given an opportunity of appearing and making oral representations. The committee may allow the appellant to be accompanied by a friend or to be represented. Decisions are to be taken by a simple majority of the votes cast and, in the case of an equality of votes, the chairman of the committee shall have a second or casting vote (paragraph 13).

It follows in my view that an appellant is intended to have to an independent and general scrutiny of his case. Paragraph 11 of Schedule 33 provides that:

"The matters to be taken into account by an appeal committee in considering an appeal shall include —

(a) any preference expressed by the appellant in respect of the child as mentioned in section 411, and

(b) the arrangements for the admission of pupils published by the local education authority or the governing body under section 414."

A requirement to consider those matters does not in my judgment exclude other considerations which the merits of the particular case may require to be taken into account. The use of the word "include" is not accidental. It is conceded, for example, that the reasons for a preference contemplated in section 411(1)(b) may be taken into account notwithstanding the absence of a reference to reasons in paragraph 11(a) of the Schedule. In my judgment, the independence and scrutiny required to be exercised by the appeal committee are illusory if it is obliged to apply policies which are known to be unlawful or ought to be known to be unlawful.

Mr Bean, for the appellants, may, when driven to it, have put his submission higher but his essential submission was that the appeal committee should have regard to the illegality present in the arrangements made by the local education authority under section 411 when considering particular cases. Mr McManus for the LEA submitted that this amounted to a claim that the appeal committee had the power of judicial review.

The appeal committee's duty is of course to determine the merits of individual appeals. The ideal that it can do so without some reference to the lawfulness of the arrangements made by the LEA under section 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 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 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.

Laws LJ, whose judgment I have had to opportunity of reading in draft, refers to the existence of the power claimed for an appeal committee as "hopelessly impractical". Laws LJ goes on to accept, however, that were a committee faced with school admission arrangements which had already been condemned in the High Court as unlawful in some respect 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. Far from being a "far cry from what is suggested here", it is in my view exactly what Mr Bean was suggesting. The Court of Appeal had held, prior to the appeal committee decision, that arrangements not materially different from those in the present case were unlawful. Mr Bean submitted that, had the committee known of such illegality, its decision in the particular case might have been different. On the facts, I disagree with Mr Bean but he is in my view not defeated by a lack of jurisdiction.

I agree with the statement of Collins J at first instance in R v Rotherham MBC ex parte Clark [1998] ELR 152 at 167:

"Mr Goudie submits, and in my judgment correctly, that the knowledge of the committee that the parents had been prejudiced by the policy, which I have decided to be flawed, is a factor which they were entitled to take into account in reconsidering the appeals."

An appeal committee is not obliged slavishly to apply unlawful LEA arrangements.

I also agree with the decision of Popplewell J in R v Lancashire County Council ex parte M [1994] ELR 478. The appeal committee in that case showed good sense in a difficult situation. It is not however determinative of the present issue. It does not follow from the fact that an appeal committee is not obliged to disapply an LEA policy and may be acting unlawfully if it re-writes the policy, that it is obliged to apply an unlawful policy when deciding an individual case.

The difficulty of defining the jurisdiction of an appeal committee which is intended to reassure parents by virtue of its independence is plain. There is no simple answer to the conflict which may follow from a wish to create, on the one hand, a quasi-judicial procedure which aggrieved parents may use and, on the other hand, a procedure which does not interfere unduly with the needs of good administration. The powers of an appeal committee in the present context have been stated briefly in the statute but generally. The statutory scheme does not provide specific answers to the difficulties of definition which arise. Good sense can be expected of committees in their approach to LEA arrangements. A committee is not obliged to ignore illegality if the merits of a particular case require adherence to legality. I do not accept that the powers of the appeal committee are as limited as Mr McManus suggests.

At the conclusion of argument, we were told of the School Standards and Framework Act 1998, which supersedes the relevant provisions of the 1996 Act. Laws LJ has set out paragraph 12 of Schedule 24 (the successor to Schedule 33), in his judgment. It is an additional paragraph specifically defining the jurisdiction of the appeal panel in one respect and it confers, as Laws LJ points out, a jurisdiction akin to judicial review. The language used, namely that "an appeal panel shall determine ... only if they are satisfied ( ." suggests a limit on what is otherwise to be treated as a general jurisdiction rather than an extension of an existing jurisdiction. The new provision, which Parliament plainly does not intend to be a recipe for chaos, is far from supportive of a submission that the jurisdiction under the 1996 Act was as limited as the respondents have suggested.

For the reasons given earlier in this judgment, I would refuse this application.

LORD JUSTICE PETER GIBSON: Since the conclusion of the hearing before us, we have been informed that of the two Appellants PH has been offered a place at High Storrs School while MT is currently placed first on the waiting list. These new developments, whilst welcome, do not absolve us from the necessity of determining the questions raised on their appeal.

Despite the skilful arguments of Mr. Bean Q.C. for the Appellants I am in no doubt but that on the basis on which the judge decided the case, viz. that the fact that the Council's allocation procedure was unlawful could be taken into account by an appeal committee, this court could not interfere with the exercise of discretion by the judge. I see no sufficient answer to the points well taken by Mr. McManus Q.C. for the Council, and in particular that there was clear evidence to support the statement made by the appeal committee chairman, Alan Parker, that "the prejudice argument was overwhelming" (i.e. that the prejudice in not acceding to parental preference was greatly outweighed by the prejudice to efficient education if the Appellants and those ahead of them on the waiting list at the relevant time were accepted). The school was already very full (109 over the school's capacity calculated in accordance with the Department of Education and Employment formula and guidelines) and the Appellants did not have anything like the most compelling cases. The possibility that if the Council had required, as they should have required, parents within the catchment area to state reasons for the choice of the catchment school, fewer parents might have chosen that school seems to me too speculative and insubstantial to make a difference on the facts of the case. I think that the judge was fully entitled to find that no useful purpose was served by the proceedings.

The more difficult point is that raised by the Respondent's Notice, namely that an appeal committee is obliged to treat the admissions procedure of the local education authority as lawful unless and until quashed. The only authority directly on the point is the statement of Collins J. in R. v Rotherham Metropolitan Borough Council, ex parte Clark [1998] E.L.R. 152 at p. 167 that the appeal committee is entitled to take into account the fact that the admissions policy of the local education authority is unlawful and that this has caused prejudice. The case of R. v Lancashire County Council, ex parte M [1994] E.L.R. 478, on which Mr. McManus relied, whilst in my view decided entirely correctly, does not seem to me to throw much light on the question before us. In the present case there is the authority of this court on the appeal from Collins J. in the Rotherham case which indicates that the Council's failure to obey the statutory requirements was unlawful. In contrast in the Lancashire case there had been no judicial determination on the relevant point but merely an expression of opinion by the Department of Education. In those circumstances Popplewell J. was clearly right to say that the appeal committee was entitled to apply the local education authority's policy and would have courted judicial review if it decided to change that policy.

The question seems to me essentially one of statutory construction. The guidance given by the Education Act 1996 is limited. What can be extracted from the statutory provisions are the following:

(1) The appeal committee's function is to consider and decide appeals by a parent of a child against any decision made by or on behalf of the local education authority as to the school at which education is to be provided for the child.

(2) The appeal committee is made up of persons to be nominated as provided in Part I of Schedule 33. Members of the local education authority are not to outnumber the other members of the appeal committee and no member of the authority employed by the authority is to be chairman. No provision is made for any of the committee to have legal qualifications.

(3) The appeal committee is under the direct supervision of the Council or Tribunals by virtue of s. 1 of and para. 15 Sch. 1 to the Tribunals and Inquiries Act 1992 as amended by s. 582 (1) of and para. 118 Sch. 37 to the Education Act 1996.

(4) The appeal committee must give the appellant an opportunity to appear and make representations and may allow him to be represented.

(5) A member of the local education authority may attend the appeal hearing but only as an observer.

(6) The appeal committee is under a duty to take into account not only parental preference but also "the arrangements for the admission of pupils published by the local education authority .... under section 414" (para. 11 Sch. 33). That would appear to be a reference to s. 414 (1)(a) and (b), but it is not clear that it is a reference to s. 414 (c), "the arrangements made by the authority under sections 411 (1) and 423 (1) (admissions appeals)". However the duty to take into account is expressed in terms of inclusion only and does not exclude other matters properly to be taken into account.

(7) The only express provision relating to the outcome of the appeal is that the decision is to be binding on the local education authority and on the governing body of a school at which the appeal committee determines that a place should be offered to the child in question.

Whilst two matters are highlighted as requiring to be taken into account, the statutory provisions do not suggest to me that there is any exclusion of any other matter which an appellant wishes to put before the appeal committee and which is relevant to the decision under appeal. The appeal committee was plainly intended by Parliament to be an independent tribunal to which parents aggrieved by local education authority decisions relating to the schools in which their children are to be placed 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.

Mr. McManus submitted that the appeal committee was both entitled and obliged to proceed on the basis that the Council's admissions procedure was lawful in the absence of there being a successful challenge by way of judicial review in relation to that procedure. But he 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. 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 of law relevant to the appeal. Having said that, I fully recognise the practical difficulties to which Laws L.J. 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 (which it was not) on the appeals in respect of the Appellants that the admissions procedure was unlawful by reason of the Rotherham decision, 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. Accordingly I am of the opinion that Collins J. was right in the view which he expressed on this point in the Rotherham case. For my part I think it unsafe to attempt to derive assistance one way or the other from the subsequent legislation. I would therefore reject Mr. McManus' argument on the Respondent's Notice.

But, for the reasons given earlier, I would dismiss the appeal.

Order: Appeal dismissed