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 THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE GIBBS)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 8 February 2001

1. MR JUSTICE LONGMORE: There are two applications before the court. The first is Mrs Hood's application for permission to appeal from the order of Gibbs J, made on 16 October 2000, whereby he refused her permission to apply for judicial review of the decision of the Admission Appeals Panel not to allow her daughter to enter Park High School in the London Borough of Harrow as a pupil from September 2000. There is also an application for further evidence to be produced for the appeal hearing and for oral evidence, if necessary, to be given. Obviously, the main question relates to the permission to appeal because, if that is refused, then the second application does not arise.
2. Mrs Hood has asked me to hear submissions from a litigation friend, Mr Rodney Thompson, and I have agreed to do so. The last point he made in his submissions was that the rules changed in October 2000 so that this now becomes, technically, an application for permission to appeal from the refusal, whereas before October the true form of application to this court would be a renewal of a refused application. He was unable to say why this would matter particularly, except in one respect. He submits that, if it were to be treated as a renewal (the application having been launched in September of last year) as he submits it ought to be so treated, then he would not be confined to the arguments put before the judge and he wishes to put before the court one argument that was not before the judge. I agreed to entertain that argument as if this were truly a renewal.
3. In September 1999 the borough initially asked the parents of children ready to move to a senior schools to choose their high schools. By section 86 of the School Standards and Framework Act 1998, it is provided that the local education authority must comply with parental preference for a child's school unless to do so would prejudice the provision of efficient education or efficient use of resources. It is apparent that, if the position is that the provision of efficient education or efficient resources would not be prejudiced, then parental preference must be acted upon.
4. Mrs Hood completed an application form in respect of her daughter in November 1999 in which she named Park High as her number 1 preference and, as is relevant for this case, Harrow High as her number 3 preference. In February 2000 the local education authority of the London Borough of Harrow notified the applicant that she was to be offered Rooks Heath School. The final notification of that decision was given on 9 March. She was told that she could appeal, which she did, saying that her daughter ought to be allowed to go to Park High School.
5. That appeal was heard on 9 May 2000. The appeal panel, independent as it is from the local education authority, first considered whether the provision of the efficient education or the efficient use of resources would be prejudiced if they were to decide that more than the admitted number of pupils should go to Park High. There has been an unfortunate dispute, and this was the main subject matter of the submissions made to Gibbs J, in that Mrs Hood says that her recollection of the appeal panel's decision in that respect was that the provision of efficient education or the efficient use of resources would not be prejudiced.
6. However, the decision letter of 7 June 2000 makes it clear that the panel did proceed to hear appeals on the basis that, if it could be proved that the individual merits of any particular case outweighed the prejudice, then they would allow appeals against the education authority's decision in respect of Park High.
7. There was before the judge below an affidavit from Mr Keal, the chairman of the appeal panel, in which he sets out the way in which the panel approached its task. It states that Mrs Hitchens, the admissions manager of Harrow's Education Department, was asked to present the Education Department's case. She said that prejudice would be caused if one extra pupil was admitted to the year group, which was full. Mr Keal's affidavit relates how the panel considered her evidence and how they decided, unanimously, after a thorough discussion of the question of prejudice for some time, that prejudice had been established on the grounds put forward by Mrs Hitchens. If they had not so decided, then parental preferences would have had to be honoured.
8. This matter was the main subject matter of the submissions before Gibbs J. He set out the argument in relation to Mrs Hood's assertions and said in paragraph 12 of his judgment:

"The applicant's mother said that she took that at the time to mean that the appeal had failed. But she now appreciates, the matter having been explained to her, that a finding of no prejudice would have meant that the appeal was bound to succeed. She therefore challenges the accuracy of the letter of 7th June [the decision letter].

....

13. Having considered the facts here carefully and with all due respect to the applicant's mother, I cannot think that there is a realistic chance of a successful application to quash the decision. It is clear from the applicant's mother's own evidence that she had little or no understanding of the meaning of prejudice and its significance in the context of the appeal; otherwise, she would have never come to the conclusion she claims to have done. It is for that reason too that I conclude that there is no credible reason to doubt that the decision of the chairman of the appeal was as represented by the notification letter and his evidence about it."

9. The judge then went on to consider the question of delay. He said that he thought that the delay in this case had been excessive, but the principal reason for his refusal of permission was that the substance of the application had no reasonable prospect of success. I agree with the learned judge and I, myself, would not put any emphasis on the delay that took place between the decision letter being given on 7 June and the application for judicial review on 4 September. But, on the matters before the judge, I can quite see why he decided that he should refuse the application.
10. Mrs Hood's litigation friend has, however, sought to put before this court another argument of substance and it is right that I should consider that argument. He submitted, by reference to documents he produced, that the year before the borough had to come to a conclusion about assignments of places for the school year beginning September 2000, they effectively changed the goal posts. Because there were some schools which had too many schools linked to them, creating some difficulty about parental preferences being given, there was a rearrangement of the linkage of the schools.
11. Mr Thompson submits that the problem started with the school at Hatch End where the number of linked schools was reduced from six to five. There was then the further (he submitted) ludicrous position that another school, Cannons High (which was under-subscribed), in the view of the local education authority had to have one of its linked schools taken away and assigned to Park High which was already over-subscribed. Belmont was to be taken away from Park High but was then reassigned to it, and the overall result (which I have only summarised briefly, since the facts are more detailed) of the rearrangement was that Park High had two extra linked schools.
12. Mr Thompson then developed that submission by saying that the appeal panel could and should have decided that what the education authority had done was irrational in respect of Park High, and indeed the provision of education services in the borough, because it achieved a result where a parental choice of first preference for Park High would be likely in many cases to be rejected. That would be contrary to the whole thrust of the 1986 legislation.
13. I have recited the facts of that in a little detail but the question for this court is whether that would give grounds in any legal sense to an application for judicial review.
14. I have considered that question very carefully. It seems to me that any such submission is indeed quite unarguable in this case. The way in which local authorities provide their educational services is a matter of enormous concern, one understands, to parents in their borough, but they have to do their best in very difficult circumstances to make the best use of their educational resources. There is in place a system which is as fair as it can be, and it is made clear in all the literature that the order of preference is: (i) statemented pupils; (ii) pupils with medical reasons for attending a particular school; (iii) those with siblings already at the school; and, (iv) those attending a linked middle school. It is at that stage that the difficulties arise because if too many parents give as their first preference a particular school, even if it is a linked school in respect of which one hopes that the preferences will work, there may be cases where not all the applications can be accepted.
15. If one gets to that stage then the authority and the appeals panel proceeds by reference to the distance from the home to the school. So, it may turn out, and has most unfortunately turned out in this case, that Mrs Hood's daughter cannot be given her first preference because, according to the rules that have been applied and it is not suggested that the rules have not been complied with, she has does not live close enough to the school to be able to avail herself of the linkage that undoubtedly does exist between her original school of Priestmead and Park High. The only way in which an application is mounted is to attack the way in which the linkage has worked and, as Mr Thompson has said, the changes that have occurred.
16. It does not seem to me that the local authority's rearrangement of the linkage can conceivably be regarded as irrational, even if it is the case that more parents from Priestmead than before will be disappointed in the results.
17. Mr Thompson has put before me the minutes of the relevant agenda and minutes of the relevant meetings that took place in Harrow, particularly one on Tuesday 12 January 1999, which was before the arrangements that fell to be followed in this case took place. One sees under conclusions, among other things:

"No change to the admission arrangements is not an option. Whilst acknowledging that change will cause stress and anxiety for those affected, it is not possible to maintain the current single link arrangements."

18. That is pre-eminently a matter for the local authority and not something with which this court could conceivably interfere. There would be no possible prospect of success even on this new ground that Mr Thompson has sought to advance.
19. Of course I have the greatest sympathy with Mrs Hood whose daughter says that all her friends have gone to Park High and that she is the only one who has had been forced to go to Rooks Heath, but there is no matter which is conceivably appropriate for judicial review in this case.
20. I would end by saying that the court is indebted to Mr Thompson for the measured and sensible way he has marshalled his arguments on the application which have not been easy arguments for him at all. I do think him for his assistance.
Order: Application dismissed.