England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		20th December 1999

Monday, 20th December 1999

JUDGMENT
1. MR JUSTICE LATHAM: This is an application by the Metropolitan Borough of Wirral, challenging a decision of the Schools Adjudicator in relation to the admissions procedures for secondary schools, which have been adopted by the applicants. This application raises for the first time consideration of the provisions and structure of the procedures laid down by the School Standards and Framework Act 1998, the relevant provisions of which can be dealt with relatively shortly.
2. The post of the Schools Adjudicator was created by section 25 of the Act. In dealing with any decisions, the local education authorities and anybody else who is required to determine issues, including the Schools Adjudicator, is to have regard to the Code of Practice to be published by the Secretary of State under section 84 of the Act. So far as it is relevant to this application, the Schools Adjudicator's jurisdiction is contained in section 90 of the Act, which provides, in subsection 1:

"(1) Where admission arrangements have been determined by.

(a) an admission authority under section 89(4)

(b) the body consulted by the admissions authority under section 89(2) wishes to make an objection about these arrangements that body may refer the objection to the adjudicator ...

(3) On a reference under subsection (1) ...

the adjudicator shall either -

(a) decide whether, and (if so) to what extent, the objection should be upheld ...

(6) Where the adjudicator ... decides that an objection referred to him under this section should be upheld to any extent, his decision on the objection may specify the modifications that are to be made to the admission arrangements in question."

3. The Code of Practice on school admissions (which is the relevant Code of Practice for the purposes of this case) includes the following:

"4.9. Section 25 of the 1998 Act empowers the Secretary of State to appoint Adjudicators to consider school organisation and admissions issues where it has not been possible to reach local agreement. Adjudicators are independent of the Secretary of State. They will look afresh at the issues raised by objections referred to them, considering each objection on its individual merits and taking account of the reasons for disagreement at local level, in the light of the legislation and the guidance in this Code."

4. Paragraph 2.3 states:

"School admission arrangements should work for the benefit of all parents and children in an area. The arrangements should be as simple as possible for parents to use, and help them to take the best decisions on the school for their children."

5. Paragraph 2.4:

"In drawing up admission arrangements, admission authorities should aim to ensure that:

The arrangements enable parents' preferences for the schools of their choice to be met to the maximum extent possible.

Admission criteria are clear, fair and objective, for the benefit of all children including those with special educational needs or with disabilities."

6. Paragraph 5.2:

"Admission authorities have a fairly wide discretion to determine their own oversubscription criteria provided these criteria are objective, clear, fair, compatible with admissions and equal opportunity legislation, and have been subject to [consultation] ... Admission authorities should consider how best to monitor school admission applications, refusals of places and admissions appeals to ensure that the admission process is fair and offers equal opportunities to all pupils."

7. The history of the dispute which is now before me can be shortly stated as follows. Admission arrangements to secondary schools in the applicants' area have to change next year because of the provisions of the Act. The applicants therefore undertook detailed consultation on its proposals for new arrangements for admissions for the year 2000/2001 with school governing bodies, with parent teacher associations, guidance authorities and teachers' associations.
8. Results of the consultation were first considered by the Education Committee in April 1999, and a decision was taken to hold a further round of consultation, the results of which were considered by the Education Committee in June. The Committee was there faced with two options in relation to the way in which admissions procedures should operate.
9. The first has been described in the papers as the "rank order option". Put simply, that entitled a parent to indicate in order of preference which school he or she wished the child to attend.
10. The second option was known as the "elevated preference option". This option was to take account of the fact that the applicants, although at the moment a Labour controlled authority, have a number of grammar schools (indeed, well-known grammar schools) within the area. In order to provide, it was thought, some protection for those parents whose children were able enough to consider admission to a grammar school, this option enabled such parents to give a first preference for a grammar school but then also to give -- in the event that the child was unable to attend the grammar school -- a first preference in relation to what was to be known as an "all ability" school.
11. On 23rd June 1999, the Committee decided to adopt the elevated preference option. It is to be noted that the elevated preference option is not one which operates before the parent knows whether or not a child has met the academic or ability requirements of the grammar school. By the time such a parent seeks to make his or her choice, he or she will have been told whether or not the child meets the academic or ability criteria. However, the parent will not have been told how many parents have named the particular grammar school as their first preference; the number of children with particular justifications for choosing that school; the geographical pattern of preferences, or the reasons put forward by other parents for admission to that particular school.
12. The decision had been taken after the Committee was informed that 44 of the 53 primary schools who had been consulted preferred the elevated preference option. The nine secondary schools favoured the rank order option, whereas the six grammar schools and one special school preferred the elevated preference option.
13. All the schools, and other bodies, that had been consulted were notified by letter dated 5th July 1999. The headteacher of one of the secondary schools -- in fact, a voluntary aided secondary school which would not have been affected in any way, in practice, by the decision -- wrote a letter to the Secretary of State for Education and Employment. He said as follows:

"As the head of a Comprehensive School, I would have serious reservations about the admission arrangements in general but in particular I would like to direct your attention to paragraph four of the enclosed letter. The paragraph states 'a preference for an all ability school which follows preferences for grammar school education will be elevated to first preference if it is not possible to offer a place in a grammar school.' The effect of this is to give the parents of able children two first choices. Indeed, the word 'preferences' suggests they will have two or more choices. This clearly puts the parents of less able children at a disadvantage and is open to legal challenge. I would welcome your advice on this matter at your earliest convenience."

14. Ultimately, that letter was submitted to the Schools Adjudicator as an objection under the statute. On 20th September 1999, the Schools Adjudicator wrote to Mr Rice, the applicants' Director of Education, as follows:

"We have received an objection dated 14th September 1999, confirming an earlier objection to the Secretary of State dated 5 July from St Mary's College, Wallasey, about admission arrangements for Wirral secondary schools for September 2000. I enclose a copy of the documents sent by St Mary's College for your information.

You now have until 4 October to forward any further information that you wish the Adjudicator to consider but in view of the time limitations I would appreciate your response as soon as possible. Please copy any information you sent to us to St Mary's College so that they are aware of your response, and we will ask them to do the same. Once your comments have been received, the adjudicator will aim to make a decision within six weeks."

15. After receiving that letter, Mr Rice submitted a nine page response to the Schools Adjudicator, dated 1st October 1999. It set out the history of the applicants' consideration of the admission arrangements and, when it came to the complaint itself, it said as follows:

"It will be seen from the reports to the Education Committee and the minutes of their meetings that they took very careful account of the views of the governing bodies and other interested parties who responded to the consultation papers. The Committee was persuaded by the weight of opinion that favoured the elevation of a preference for an all-ability school to first preference if the child did not obtain a place at a grammar school that had been named as a preference. It is a scheme that recognises that parents should be able to have the opportunity to say, of all the schools which are available, 'this is the grammar school which we would most like our child to attend and this is the all-ability school which we would most like our child to attend'. The effect of this policy is that children who are not allocated a grammar school place can still be considered for a place in the all ability school of their parents' preference. If this school is the nearest to their home, they will still then have the opportunity to attend their local school, a factor to which the Committee attaches great importance."

16. The Schools Adjudicator then considered the material which had been provided to him, and ultimately came to his decision in a letter dated 19th November 1999. The Schools Adjudicator identified that the issue which he had to determine was whether or not the admissions procedure met the criterion of fairness which was set out in the Code of Practice. He said as follows:

"The issue of fairness or unfairness arises where the all-ability school is oversubscribed either before the process of 'elevation' or as a result of it. In both events a second preference elevated to a first preference can displace a parentally expressed first preference, and it is a direct consequence of the arrangements that this should be enabled to happen. At the point at which a preference is expressed under the LEA's proposed arrangements, one parent has already expressed a preference for a grammar school and another is, for the first time, enabled to express a preference for an all-ability school. If, as result of that process which includes 'elevation', the first choice of the second parent is not met, whilst the second choice of the second parent is, the process operates in a way which to the second parent will in my view appear not to be 'fair' to use the word of paragraph 5.2 of the Code. This will apply equally to parents living inside or outside the LEA.

I do not regard the elevation of the preferences expressed by one group of parents over those of some others, in the particular circumstances of the arrangements proposed by the LEA, as fair, in that some parents are by reason of these arrangements given less opportunity than others to have their preference met, and therefore uphold the objection to this element in the LEA's arrangements ...

In that part of the arrangements which states that parents will be invited to express their preferences in February and preferences will be considered in the order in which they have named them, the qualifying words: 'but a preference for an all ability school which follows preferences for a grammar school education will be elevated to first preference if it is not possible to offer a place in a grammar school (model 2)', should be deleted and the LEA's admission arrangements adapted accordingly."

17. In effect, the Schools Adjudicator therefore preferred, and therefore imposed, the first option, i.e. the rank order option.
18. The applicants challenge that decision on three grounds. The first ground is that it is said that the Adjudicator misdirected himself in law by substituting his judgment for that of the authority, in deciding that the admission arrangements were unfair under the Code of Practice.
19. It seems to me that, put in that way, the applicants' argument is misconceived. The provisions of the Act that I have already cited make it plain that the Schools Adjudicator has what is, in effect, an original jurisdiction to determine the objection. Naturally, he will take into account all matters which are submitted to him by all interested parties. The background will include the local education authority's decision. The local education authority is comprised of elected representatives who can be expected to know the area which they represent.
20. Clearly, when considering the submissions made by or on behalf of the local education authority, the Schools Adjudicator will be bound to take that into account when assessing their validity. But, at the end of the day, as the passage from the Code of Practice which I have also cited makes clear, it is for the Schools Adjudicator to come to his own decision on the merits of the objection.
21. If follows that, as expressed, the applicants' challenge on this ground is one which I reject. It seems to me it is not a matter which permits any further elaboration by me. Indeed, to do so might confuse, and indeed might carry with it the danger of my words being substituted for the words of the Act which are, in my judgment, properly reflected in the Code of Practice.
22. The second ground upon which the applicants challenge the decision is that the Schools Adjudicator was in breach of his duty to act fairly in failing to give the applicants an opportunity to meet the complaint that the admission procedure was unfair.
23. From the contents of the letter written by the objector, which was forwarded to the applicants under cover of the letter from the Schools Adjudicator of 20th September 1999, it seems to me that this ground is equally misconceived. The unfairness, which was ultimately the unfairness identified by the Schools Adjudicator, was set out with pristine clarity. The real objection by the applicants to the procedure adopted was that they were not given the opportunity to expand on the reasons for coming to the conclusion they did, beyond that set out in the letter which was submitted by Mr Rice on 1st October 1999. In other words, what is said on behalf of the applicants is that if the Schools Adjudicator was not persuaded by contents of that letter, he should have informed the applicants and indicated that he would wish to have further submissions.
24. On the applicants' behalf, it is said that had they be asked to provide further submissions on the basis that the material had not persuaded the Schools Adjudicator, they would have expanded on the policy arguments for the elevated preference option. These arguments are based upon the protection which the applicants have sought to provide for the grammar schools which they value.
25. The elevated preference option carried with it the opportunity, as a result, to ensure that parents were not dissuaded from exercising a preference for a grammar school by the uncertainty attendant on it, because of the fact that all their grammar schools are oversubscribed, so that there will obviously remain -- whatever ability band the child was in -- the risk of the child not being accepted. In particular, it is said that that would re-bound to the disadvantage of the disadvantaged, because it is of the nature of things that the grammar schools tend to be in areas further away from the place where the disadvantaged are living, which means that they would have a double disadvantage in the normal selection criteria for admission by reason of that fact.
26. It is said that it was, accordingly, an appropriate exercise of the discretion inherent in the process of choosing admissions criteria to put in some preference for those choosing grammar schools in order to, as I have indicated, protect both the grammar schools and also those who might otherwise be unable or unwilling to give to their children the advantages which were undoubtedly perceived as flowing from a grammar school education.
27. It is said that the problem was created for the Schools Adjudicator because the education department itself had merely put factual material before the committee before it came to its decision, considering that the other aspects of the debate would be covered by the councillors themselves looking at the matter from their local knowledge and from their own political viewpoints, so that it was unnecessary to spell them out. Accordingly, it is said, this vital part of the decision making process was unknown to the Schools Adjudicator, so that he was unable to take it into account. Had he written to the applicants to indicate his concerns about the persuasiveness of the material which he was being provided with, then he may well have been able to consider this other material which could and -- according to applicants -- should have made all the difference to his decision.
28. I remind myself that the challenge under this head is essentially a challenge on the basis that the applicants have been treated unfairly. In my judgment, they were not. They were told clearly the basis upon which it was considered by the objector that the admissions procedures were unfair. That remained the nature of the objection, and the Schools Adjudicator came to a conclusion on that precise issue. He gave to the applicants every opportunity in the letter that I have referred to, to put before him everything which they considered to be appropriate and important for the purposes of his determination.
29. In those circumstances, I do not consider that there is any justification for the argument that they were not given a proper opportunity to present the case fully and adequately.
30. It has to be remembered, as Mr Brown has submitted to me in argument, that one of the important features of this particular type of situation is that speed is of significance. The decision which was objected to -- and as to which the Schools Adjudicator had to come to a decision -- was a decision in relation to admissions to schools for next autumn. The relevant procedures clearly have to be in place as soon as possible in order that they can be fairly and properly administered.
31. In those circumstances, I do not consider that it could properly be argued that there was in some way some obligation on the Schools Adjudicator, having come to his conclusion that the procedure was unfair, to indicate by way, for example, of preliminary finding to the applicants, that that was the way he was minded to decide the situation. It follows that this challenge fails on that ground.
32. The third ground of challenge is essentially that the Schools Adjudicator came to an irrational or perverse decision. It is said that he failed to take into consideration, for example, the matters which I have already referred to as to the background against which the decision by the applicants came to be made and that he gave no consideration to the applicants' own views which, as I have already indicated when dealing with the first ground, I believe certainly that he was obliged to do.
33. In order to evaluate this particular ground, it is necessary to consider the witness statement of Mr Hainsworth, the Schools Adjudicator who came to the decision in question. In his witness statement, he has helpfully set out the matters which he had regard to in coming to his decision. I, of course, bear well in mind that essentially it is the decision which is material to determining whether or not the reasoning of the Schools Adjudicator can be upheld. But in the present case, as will be seen, the witness statement does not in any way indicate that there is any conflict between what he asserts to have been his process of reasoning and the decision letter. No such suggestion is made on behalf of the applicants.
34. The relevant part of his witness statement is paragraph 7, which reads as follows:

"In reviewing the LEA's arrangements in the light of the objection, I did not merely confine myself to a consideration of the impact on children whose parents wished only to apply to all-ability schools, but I considered and weighed up a variety of other issues:

(a) The LEA had initially consulted on two models -- the elevated preference model and the parental order model. Given the objection, I needed to weigh, as far as I could, what the impact might have been, had the LEA opted for the parental order model and the impact that that might have had on children whose parents wished to express preference for grammar schools;

(b) As I am aware, from my own educational administrative experience, that no LEA is monolithic and that there is frequently wide variety in socio-economic circumstances, I needed to judge whether the parental order model might inhibit parents from applying to grammar schools;

(c) I considered the views expressed by consultees through the documentation and it was clear that there was significant support from the primary schools for the elevated preference option, but equally clear that the impact of either option did not bear directly on primary schools but upon admissions to secondary schools, where, of those responding to the second consultation, nine all-ability schools expressed a view in favour of the parental order and six grammar schools (with one special school) opted for elevated preference;

(d) I inferred from the balance of that response in the secondary sector that the grammar schools believed that the parental order option would adversely affect them, but it was equally manifest that the all-ability schools believed that the elevated preference option would adversely affect them. My own view was that parental capacity to make a realistic assessment of the chances of obtaining a place, whether at a given grammar school or given all-ability school, was not so much dependent upon the method of handling preferences as upon the information provided by the LEA and others;

(e) It was clear from the consultation documentation, the Committee Reports and the information sent to parents, that the LEA had considerable pride in all schools it maintains, both grammar and all-ability;

(f) As I read the objection in relation to the elevated preference option it became increasing clear to me that the LEA, in seeking to develop admission procedures to meet local needs and requirements, and in this way reflecting the Code of Practice requirements, was in fact acting unfairly in relation to a significant number of parents.

(g) In considering the objection in the light of the overall picture it seemed that there was a significant difference between, on the one hand, applying the elevated preference process to two sets of selective schools (grammar and modern), where entry to both is conditioned by a measurement of ability, and on the other hand, the extension of this process to cases where parents already know their child's score, have already expressed an unsuccessful section 86 preference, and where admission arrangements to all over-subscribed schools could be affected. A further fact which I took into account was the fact that the LEA had itself consulted on two options and in so doing must have had a view that both were reasonable options."

35. It is apparent from that paragraph that the Schools Adjudicator did have in mind the effect that the -- as he put it -- parental order model would have, or might have, on parents seeking to choose grammar schools. It is also apparent that he had in mind the fact that the applicants were seeking to develop admission procedures to meet local needs and requirements.
36. He took into account, with his own experience, the fact that amongst the consultees there was a preponderance of view in favour of the elevated preference option. But he concluded that, at the end of the day, the unfairness which had been identified by the objector and which he considered to exist, was an unfairness which meant that he was bound to conclude that the elevated preference model did not meet the requirements of the Code of Practice.
37. On behalf of the applicants, Mr Clayton has criticised the Schools Adjudicator in a number of respects, arising out of what he has said in paragraph 7. He says that in concentrating on the views of the secondary schools and appearing to downgrade the opinions expressed by the primary schools, he was acting irrationally on the basis that one would expect that the views of the primary schools -- who are those dealing with the parents and the children during the time that the admissions procedure is progressing -- must be of the greatest significance.
38. I can see some force in that argument, but reading paragraph 7 as a whole, it does not seem to me that the Schools Adjudicator was really putting too much weight on the expressions of views by these consultees. Indeed, insofar as that was concerned, one can understand and sympathise. It is not merely the fact of a particular school giving its view which matters, but the grounds or reasons for giving that view which are of fundamental importance. It does not seem to me that in relation to that aspect of the case there is anything to suggest that he failed to take into consideration that aspect of the consultation process.
39. At the end of the day, the real question remains whether or not, given all the material before him, the unfairness that he had identified -- and which in paragraph 7(f) he considered to be underlined, the more he considered the material before him -- was a view which could reasonably be held by a Schools Adjudicator properly directing himself as to his jurisdiction and as to the test which he should apply.
40. I can see nothing irrational in his approach. What was identified by the objector can properly be described as unfairness. That unfairness exists and cannot be gainsaid. So, in those circumstances, the only question could be whether there was anything in the material before the Schools Adjudicator which could enable him to come to the conclusion that there was a countervailing argument as to fairness which justified coming to the opposite conclusion. Namely that although apparently unfair, nonetheless it, in fact, was designed in order to secure what could properly be described as overall fairness.
41. There seems to me to be nothing in the material before me that suggests that the Schools Adjudicator came to a conclusion which was perverse. The submissions on behalf of the applicants, attractively presented though they have been by Mr Clayton on their behalf, have failed to persuade me, therefore, that any of the grounds upon which this challenge has been brought are properly made out. Therefore, I refuse this application.
42. MR BROWN: My Lord, I am grateful. In those circumstances, I would ask for our costs. In keeping with the latest arrangements, my Lord, we have an estimate of our costs. I am afraid I have not had a chance to pass it to my learned friend.
43. MR JUSTICE LATHAM: Mr Clayton, as you appreciate, the normal procedure would be that those documents -- if to be relied upon -- should have been submitted before the conclusion of my judgment. You would be entitled, in those circumstances, to say that you objected to there being any assessment at this stage.
44. MR CLAYTON: My Lord, I think I will say that I will object since my solicitors have not even had a chance to see it.
45. MR JUSTICE LATHAM: Exactly.
46. MR BROWN: I do apologise for springing it in that way. There was some thought your Lordship might reserve this overnight. We did not get our act together quickly enough, but I quite understand.
47. MR CLAYTON: May I ask formally for leave to appeal? I need not develop the point at all.
48. MR JUSTICE LATHAM: Yes. I sympathise with your application on the basis that this is the first case, it would appear, to consider this jurisdiction and the wording of the Act and so forth. But, it does not seem to me that this particular case raises sufficiently significant issues in relation to the wording of the Act and the Code of Practice as to justify me giving leave to appeal. If you can persuade someone else, so be it. Otherwise, it is the applicants to pay the respondents's costs.

Thank you.