England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		14th December 2000

1. MR JUSTICE OUSELEY: Wirral Borough Metropolitan Council is the claimant in these proceedings and is the local education authority for the Wirral. Within its area, state sector secondary education is provided at six grammar schools and 17 all-ability schools. The grammar schools account for approximately 20 per cent of the total number of places. Wirral Metropolitan Borough Council ("Wirral"), as the admissions authority, determines admission arrangements for two of the grammar schools which are community schools and for the 14 community all-ability schools. Two of the other grammar schools are foundation schools (ex-grant maintained) and set their own admission arrangements. However, the community and foundation grammar schools' admissions are managed jointly by Wirral. The remaining two grammar schools, as well as three of the all-ability schools, are Roman Catholic aided schools which set and conduct their own admissions arrangements. However, by agreement, the Authority at present exercises a co-ordinating role in relation to admissions for all of these schools.
2. For admissions for the academic year starting 2001, Wirral determined that its approach would be that selection tests for grammar schools would precede the expression by parents of their preference as to the state sector secondary school for their children. This approach was agreed with those with whom Wirral co-ordinates arrangements and those whose admission arrangments it manages. The purpose of doing things that way round was to enable parents to have a much better idea of whether their children would obtain a grammar school place when they first expressed their preference for a grammar school. Armed with that knowledge, a parent of a child who had failed to obtain the requisite standard for entry to the grammar school could select as his or her first preference one of the six over-subscribed, more popular state all-ability schools. Without that knowledge, a parent of a child who had chosen a grammar school as first preference risked, if the child did not obtain a grammar school place, that the child would have no real chance of a place at one of the six more popular all-ability schools as a second preference. This is because there are more than sufficient first preferences for those six schools to be accommodated ahead of such a child. There had been extensive consultation about this process by Wirral, which it obviously saw as beneficial to the parents and efficient administratively.
3. Objections were raised to the process by the governors of two schools, neither of which were among the six over-subscribed schools. The process was said to be unfair. This was because the selection tests preceded the expression of preferences and because that effectively enabled some parents to have an alternative first preference. This was also said to be unlawful.
4. These objections were considered by an adjudicator pursuant to section 90 of the School Standards and Framework Act 1998. These objections were upheld. The adjudicator concluded that, although it was lawful for Wirral to have a selection before preference approach, it was unfair to other parents, disadvantaging a significant number of them. The adjudicator concluded that the expression of the first preference should be made before the selection process for grammar schools.
5. Wirral challenges that determination on the grounds, firstly, that the adjudicator omitted relevant factors from his consideration, notably a variety of adverse consequences which his determination would lead to; secondly, that the adjudicator had failed to give due weight to the statutory code of practice on admission arrangements pursuant to section 84 of the 1998 Act; and, thirdly, that the adjudicator's decision was irrational.
6. It is now necessary to set out the statutory provisions.
7. Section 89 provides for the procedure for determining admission arrangements. Section 89(1):

"The admission authority for a maintained school shall, before the beginning of each school year, determine in accordance with this section the admission arrangements which are to apply for that year."

8. There then follow provisions which deal with the required consultation before such admission arrangements are determined.
9. Section 89(4) then provides:

"Once the admission authority have carried out any such consultation, the authority shall -

(a) determine that their proposed arrangements (either in their original form or with such modifications as the authority think fit) shall be the admission arrangement for the school year in question;..."

10. Section 90 deals with the position of the adjudicator. Section 90(1) provides:

"Where -

(a) admission arrangements have been determined by an admission authority under section 89(4), but

(b) a body consulted by the admission authority under section 89(2) wish to make an objection about those arrangements,...

that body may refer the objection to the adjudicator."

11. Section 90(3) deals with the powers and duties of the adjudicator. It reads:

"On a reference under subsection (1) or (2) the adjudicator shall either -

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

12. Section 90(7) provides:

"In the case of any objection referred to him under this section, the adjudicator or the Secretary of State (as the case may be) shall publish his decision on the objection and the reasons for it."

13. Subsection (8):

"The decision of the adjudicator or the Secretary of State on the objection shall, in relation to the admission arrangements in question, be binding on the admission authority and on all persons by whom an objection about those arrangements may be made under subsection (1) or (2);..."

14. Admission arrangements are defined in section 88(2) as follows:

"In this Chapter 'admission arrangements', in relation to a maintained school, means the arrangements for the admission of pupils to the school, including the school's admission policy."

15. So it is plain that the adjudicator is exercising an original jurisdiction as to the appropriateness of admission arrangements. He is not reviewing a local education authority's decision, though obviously what they determine and why is very material. So much has also been decided in another case involving the Wirral, R v The Schools Adjudicator, ex parte Metropolitan Borough of Wirral [2000] ELR 2620, by Latham J. The court's power in relation to an adjudicator's determination is of course limited to review on conventional public law grounds. However, the adjudicator's jurisdiction is limited to dealing with admission arrangements. I shall turn to that in a moment.
16. Continuing with the statutory provisions, section 86 deals with the expression by parents of their preferences. Subsection (1) provides as follows:

"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."

"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."

17. Subsection (2):

"Subject to subsections (3) and (6) and section 87 (children excluded from two or more schools), 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)."

18. Section 86(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...

(c) if the arrangements for admission to the preferred school -

(i) are wholly based on selection by reference to ability or aptitude, and

(ii) are so based with a view to admitting any pupils with high ability or with aptitude, and compliance with the preference would be incompatible with selection under those arrangements."

19. Accordingly, subsection (1) deals with arrangements for the expression of a preference. Subsection (2) imposes an obligation to comply with that preference. Compliance with that preference is relieved in the circumstances set out in 86(3).
20. Section 86(7) also provides:

"Where the arrangements for the admission of pupils to a maintained school provide for applications for admissions to be made to (or to a person acting on behalf of), the governing body of the school, a parent who makes such an application shall be regarded for the purposes of this section as having expressed a preference for that school in accordance with arrangements made under subsection (1)."

21. Section 84 deals with the code of practice. Section 84(1) provides:

"The Secretary of State shall issue, and may from time to time revise, a code of practice containing such practical guidance as he thinks appropriate in respect of the discharge by -

(a) local education authorities,

(b) the governing bodies of maintained schools,

(c) appeal panels, and

(d) adjudicators, of their respective functions under this Chapter."

22. Subsection (2):

"The code may include guidelines setting out aims, objectives and other matters in relation to the discharge of their functions under this Chapter by local education authorities and such governing bodies."

23. Subsection (3):

"It shall be the duty of -

(a) each of the bodies and persons mentioned in subsection (1) when exercising functions under this Chapter,...

to have regard to any relevant provisions of the code."

24. This statutory code is approved following extensive consultation and pursuant to the negative resolution procedure of each House of Parliament.
25. It is convenient now to deal with the determination of the adjudicator which is under challenge, but by way of background, it is worth noting, first of all, the basis of the decision in the first Wirral case to which I have made reference. For the purposes of admission in the academic year starting in the autumn of 2000, Wirral, concerned then as now with the position of those parents opting unsuccessfully for grammar school education, determined that a parent could select a grammar school as a first preference but could also have a fall-back first preference if the child failed to obtain a grammar school place. Another adjudicator had upheld an objection to that on the grounds that it was unfair, that what was in reality a second preference could displace a first preference when the preferred school was over-subscribed. It was not argued before the adjudicator or before the court in that case that that approach constituted an unlawful admission arrangement, nor was it argued before that court that the expression of such a preference was not part of the admission arrangements. The court, in short, held that the adjudicator had reached a rational view, fairly, and dismissed Wirral's application for judicial review of the adjudicator's determination.
26. In the case before me now, the adjudicator determined that the objections should be upheld. Having concluded that the issue he faced was not substantially the same issue as that which the adjudicator had previously decided in the earlier proceedings, and also having concluded that it was not unlawful for selection tests to precede the expression of preferences, he considered whether Wirral's admission arrangements allowed some parents two preferences.
27. He first considered the question of statutory preferences under section 86(1) of the 1998 Act and concluded that entry into tests might well, and subsequently he considered probably did, at least in respect of two schools, constitute the expression of a preference, but that as nobody had approached matters on that basis, and nobody had intended such a result, he would not decide the objections on that basis. That was eminently fair but nevertheless does entail later a short examination of the basis upon which he exercised his jurisdiction.
28. The adjudicator then considered what he saw as "preference" in a non-statutory sense, that is to say in the sense of expressing a liking for or wish to be considered for admission to a school or type of school. In this context, he saw a question of fairness arising where one group of parents had their looser preference considered but another did not.
29. In his determination, the adjudicator commenced consideration of this question under the heading:

"(c) are the arrangements within the LEA fair and do they reflect the need for such arrangements to 'work for the benefit of all parents and children in an area'?

"Whatever uncertainties there may be about the degree to which the Wirral arrangements allow some parents to have two preferences in place of the one provided for in s.86(1) of the Act, in the second, wider and less precise than that laid down in the statute, sense of 'preference', referred to in 4(b) above, I am in no doubt that parents applying to take tests, forming part of the admission arrangements for one or more selective schools, to that extent are enabled to express a preference for such schools at a time when other parents, with preferences for other schools or types of school, have been given no opportunity to express those preferences. As the admission arrangements, relating to 2001, adopted by the LEA's Education Committee, explain to parents under the heading 'Admissions to grammar schools': "If you want to express a preference for one or more grammar schools, your child will be assessed in the Autumn term of 2000". It is clear that it is 'a preference' in the non-statutory sense that is being referred to here but, once again, the question that arises is whether the arrangements themselves are fair and in accordance with the guidance in the Code (para 3.2 and elsewhere).

In considering the question of 'fairness' in relation to admission arrangements in general and these in particular, I have had the following considerations in mind..."

30. I summarise the first three of these. Firstly, that no set of admission arrangements is likely to be entirely fair. Secondly, that the starting point for admission arrangements should be the legislation itself, but the LEA has to put parents first, so far as possible each parent, at the point at which that parent exercises the statutory right to express a preference for a school. He continued thirdly that fair admission arrangements should reflect the wide variety of reasons that underlay parents' choices, none of which had any greater validity than any other, and that it was not for an LEA to seek to give any of those preferences priority in its admission arrangements.
31. He continued:

"(iv) under Wirral's arrangements, parents are enabled to express, in its Transfer to Secondary School form issued in October, only a wish to be assessed for Grammar School education, one of the types of school ((iii) above) for which some parents have at least an initial preference in the second sense of that word, described in 4(b) above. Other parents who, at that same time, are certain that they prefer, for example, a mixed school, have no way of expressing any settled preference they may have. In short, one set of parents has to wait until, under the LEA's arrangements, another set of parents has their initial, however tentative, preferences dealt with. Given that a wish for a mixed school is, in principle, no more and no less valid than one for any other kind of school, including a selective one, the question arises as to whether a system which differentiates between parents in this way is fair or in accordance with guidance in the Code;

(v) how many parents are affected in this way? I have received helpful information from the LEA which indicates that, in 1999, of the 1301 pupils accepted at the six most over-subscribed community, all-ability schools, 418 had sat the selective tests and 883 had not; so, irrespective of the timing of the tests, most parents obtained the school place they wanted. On the other hand, some 285 parents did not get their first preference at the six most over-subscribed, all-ability community schools. Of that 285, 120 children had sat selective tests earlier and 165 had not. In short, 165 of the pupils who had not sat the tests were not admitted because, of the 418 who had done so, 165 had their preferences met in their place, by reason, for example, of the proximity criteria in the LEA's arrangements for dealing with over-subscription. If s.86(1) preferences had preceded the tests, the position would have been reversed. 165 pupils who had not sat the tests would have been admitted in place of 165 of the 418 who had. These are significant numbers. I recognise that, on the evidence I have received from the LEA, the present arrangements work to the satisfaction of one substantial group of parents and that of the schools to which those parents are applying or considering applying. The arrangements have also been associated with some reduction in the number of admission appeals. But I have concluded that these arrangements do not, from the outset, give equal consideration to what all parents, rather than some, want for their children. They therefore fall short of arrangements designed to 'work for the benefit of all parents and children in the area' and, on the criteria set out in (i) to (iii) above, are lacking in fairness."

32. He continued:

"(vii) having concluded that elements of the present admission arrangements lack fairness, the question is whether these arrangements are sufficiently unfair, bearing in mind that no arrangements can be expected to be absolutely fair, to require these arrangements to be changed. Educational standards are not affected by the timing of the LEA's arrangements for enabling parents to express their preference under s.86(1) nor, in my view, do the co-ordinated admission arrangements which the LEA has successfully developed need to be put at risk, though I have noted the LEA's concern relating to this. In that connection, it is evident that the present arrangements have been reached after the LEA has carried out a full consultative process with schools and governing bodies in the area. Finally, it is also the case that councillors elected by the public at large can reasonably be expected to have taken into account the views and interests of parents, their constituents, even though there may be no documentary evidence of how their decisions were affected thereby. But the fact remains (as described in 4(c)(ii) above) that it is the preference of a parent with a child entering secondary education on which the LEA's arrangements need to concentrate. Under the LEA's present arrangements a parent, whose statutory preference has always been, for example, for a particular non-selective school may not, if that school is over-subscribed, have that preference met for one particular reason: that the place at this school is awarded to another parent who has earlier, by entering into the admission arrangements for a single-sex selective school, shown by so doing either that he prefers such a school or, it may be, has no preference as between a single sex and a mixed school as the one 'at which he wishes education to be provided for his child'.

(viii) My conclusion is that, as not every parent can have his preference met when a school is over-subscribed, the preference of a parent who has at all times had a consistent preference for a particular school should, in fairness, take precedence over that of a parent whose preference for that school is contingent on his child qualifying or failing to qualify for admission to some other school."

33. It is in that last sub-paragraph that the main point of the adjudicator's decision can be discerned. He is concerned with the effect which the process that Wirral had adopted would have, in relation to those who were applying for over-subscribed schools and the way in which the criteria for dealing with over-subscribed places should be applied.
34. In his determination, the adjudicator summarised what he had to say in the following way:

"5(c) If, however, testing arrangements go further and form part of the admission arrangements of schools whose governors are the school's admission authority, two possibilities arise:

(i) that entry to the tests may constitute an application to the school for admission under s.86(7). If so, that application becomes the parent's statutory first preference under s.86(1) and thereafter has to be treated as such;

(ii) that entry to the tests for a selective school or schools may thereby be found to provide parents entering their children for these tests with an opportunity to express a degree of preference for a particular school or type of school. The question of fairness arises if similar opportunities are not afforded to all parents by enabling them to express to the appropriate admission authority a preference for other types of school: for example an all-ability or denominational school."

"5(c) If, however, testing arrangements go further and form part of the admission arrangements of schools whose governors are the school's admission authority, two possibilities arise:

(i) that entry to the tests may constitute an application to the school for admission under s.86(7). If so, that application becomes the parent's statutory first preference under s.86(1) and thereafter has to be treated as such;

(ii) that entry to the tests for a selective school or schools may thereby be found to provide parents entering their children for these tests with an opportunity to express a degree of preference for a particular school or type of school. The question of fairness arises if similar opportunities are not afforded to all parents by enabling them to express to the appropriate admission authority a preference for other types of school: for example an all-ability or denominational school."

35. Having concluded that, although there were concerns as to whether an application for admission in certain circumstances would in fact constitute the expression of a statutory preference, and having said that his determination was not going to be based on that, the adjudicator continued in paragraph 5(d)(ii):

"The LEA's arrangements enabling some parents to enter for assessment for grammar school education tests, an integral part of the admission arrangements of those schools, give those parents an opportunity to indicate, in entering children for those tests, a degree of preference for a particular type of education, for example, for a single-sex, undenomination al, selective school. These arrangements do not include, at the same time, an opportunity for other parents to indicate a similar degree of preference for schools of another kind.

(iii) Where some schools are over-subscribed, inevitably some parents will not have their preference for a school place met. The effect of the present arrangements, taken with the criteria used by the LEA when dealing with over-subscription, is to disadvantage some parents whose preference has throughout been for a particular mixed, all-ability school in favour of some other whose preference for such a school is conditional on achieving or failing to achieve the admission standards of one or more schools of a different type. I do not regard such arrangements as fair to the former group of parents.

With these considerations in mind, I uphold the objection to the proposed admission arrangements on the grounds that they are, to the extent set out in 5(d)(iii) above, unfair and work for the benefit of some rather than, as far as they reasonably could, all parents in the LEA's area."

36. He then determined that the arrangements for the expression of the statutory preferences should precede the tests forming part of the admission arrangements.
37. Before dealing with the grounds of challenge, it is necessary to deal with the jurisdiction of the adjudicator in order to follow his reasoning and the basis for the court's intervention. It is plain that the criteria for dealing with over-subscription at schools, which in substance is why any problem arises at all, are part of the admission arrangements. Equally, it is clear that testing arrangements, at least as envisaged here, are also part of the admission arrangements.
38. In my judgment, the timing of such testing is also part of the admission arrangements. Accordingly, and both parties so assert, the adjudicator had jurisdiction, dealing with admission arrangements, to determine that the selection process should succeed the expression of the statutory preference. I raise the point simply because much of the adjudicator's reasoning deals with the expression of a preference in a statutory and non-statutory sense. That the expression of a statutory preference was part of the admission arrangements seems to me implicit in the first Wirral case, but it is not explicit in the judgment of Latham J. I would not wish this case to be another authority by silence on that point. It may be arguable that admission arrangements deal with how the expression of the preferences are managed, and that the expression of the statutory preferences is not, in itself, part of the admission arrangements, as at least section 92 potentially contemplates. If that is so, a less formal expression of preference may even less be part of the admission arrangements.
39. Of course, insofar as something falls outside the scope of admission arrangements, it falls outside the scope of the adjudicator's jurisdiction. However, the resolution of such an issue is not relevant for my decision in this case for the reasons which I have given, and I leave that question of jurisdiction where it rests.
40. I turn now to the grounds of challenge, and I shall deal first with rationality, although it was not the first ground upon which Mr Bear, for the claimant, relied. The claimant submits that the decision was simply irrational, though he invited that conclusion after a sequence of criticisms of the determination letter, in which he contended that various consequences of the determination and the code of practice had been ignored. In particular, Mr Bear submitted that the consequences ignored included the fact that parents would be deterred from entry into the grammar school tests, or from choosing a grammar school education, or would seek to evade the effect of the adjudicator's determination by tactical choices of school. But, in essence, the contention comes down to this: that it is perfectly obvious that the Wirral system had nothing unfair in it, and that the adjudicator's determination simply removes a useful piece of information from one group of parents without any discernible advantage to anyone else.
41. First, in my judgment, the decision itself cannot be regarded as irrational. In the first Wirral case to which I have made reference, it was held that the effect of two formal preferences being given to one group of parents was not irrationally held to be unfair by the adjudicator. Of course, those admission arrangements were different from those which would have been in place had Wirral's new process been accepted, but the effect of the latter has many similarities to those effects which were rejected as unfair in the first Wirral case; and the vice of which complaint is made, is the same in many ways as the vice which was the subject matter of complaint in the first Wirral case. Some weight in judging the rationality of the adjudicator's decision can also legitimately be given to the existence of such arrangements elsewhere and to the recognition by Wirral in consulting on a variety of arrangements, including one in which preference expression preceded selection, that it was looking at "possible feasible arrangements". I quote from Mr David Griffith's second witness statement, paragraph 3, presented on behalf of the claimant.
42. This view of fairness is plainly a view over which people can legitimately disagree strongly. However, it cannot be irrational to conclude that one group should not have a chance of its true first preference being met without risk to its true second preference; nor can it be irrational to conclude that, in deciding who should go to an over-subscribed school, those whose genuine first choice it was, should have weight given to that fact. It had to be borne in the adjudicator's mind that the admission arrangements must be such as to enable, so far as possible, the admission authority to fulfil the duty in section 86(2) of compliance with the expression of parental preference.
43. Secondly, once unfairness has been found, the fairness of the corrective mechanism to be applied is for the adjudicator. Whilst it may seem harsh for some parents to lose a real benefit, without any quantifiable countervailing benefit to other groups of parents being found, it is not an irrational remedy. It appears to be concluded in the determination letter at paragraph (c)(v), that because the practical consequence of Wirral's system, taking 1999 by way of illustration, was that 165 pupils failed to obtain places at first preference all-ability schools, because those places were taken by 165 who had unsuccessfully sought grammar school places, the practical consequences of changing the system, as determined by the adjudicator, would be that those 165 would not now take those places. This appears to rest on the hypothesis that the alteration of the order of selection and preference would have no effect on the choices made. Quite apart from any tactical preference, some of those 165, and they are of course those less likely to obtain grammar school places, would forgo their grammar school preference and opt straight for the over-subscribed, all-ability schools as first preference.
44. The basis for that hypothesis of the adjudicator is not revealed, and the extent, if any, to which it was qualified in practice is not discussed. However, I do not consider that the decision can be held to be irrational on that account. If those who previously would have tried for and failed to obtain a grammar school place were all now under the changed system, to apply for one of the six over-subscribed, all-ability schools as their first preferences, then, although those who only ever wanted such a school would be no better off, all parents would have been brought to the point of application of the system for the distribution of places at over-subscribed schools under equal terms. One group would not have had an opportunity, however unsuccessful ultimately, to pre-qualify for its true first preference. On the other hand, if, as appears likely from Wirral's own evidence, for example in Mr Griffith's third witness statement, the effect of the change to the admission arrangements is that there would be an increase in the numbers applying for grammar school places as first preference, there would be a corresponding decrease in the numbers applying for the six over-subscribed, all-ability schools as a first preference. This would benefit those who had no interest in the grammar schools. This increase in applications for grammar school places would arise because the grammar schools under Wirral's system would only be selected as the first preference by those with the security of a test result; but under the adjudicator's system, the grammar schools would have to be selected as first preference by all those seeking to take their chances on the test result because, with over-subscription at the grammar schools, first preferences would be important even among those passing the test.
45. Either way, the consequence of the change can rationally be seen as giving truer effect to real first preferences and better effect to true second preferences with some potential practical benefit. As I have said, it may seem harsh that some parents should lose a practical benefit without any necessarily consequential or quantifiable benefit to others, but I cannot conclude that that is irrational.
46. The claimant's next submissions deal with failures to have regard to various material considerations. Mr Bear broke these down into three categories. First, consequences liable to flow from upholding the objections; secondly, the need for informed parental choice; and, thirdly, intrinsic differences between selective and non-selective admissions.
47. Before I deal with those, there are certain general matters that need to be discussed. First, it was conceded by Mr Bear that none of these points were raised before the adjudicator, although it is clear that the adjudicator gave them plenty of opportunity to produce the relevant material. It is not necessary to quote from the letters sent to Wirral by the adjudicator. It is undeniable and has not been denied. This is not a case where the result was unforeseeable, nor is it a case of the adjudicator's approach taking an unexpected turn. Indeed, as Mr Lewis pointed out more than once, and with enthusiasm, the need to put the material before the adjudicator, if they wanted it treated as a material consideration, should have been apparent to Wirral from the reasoning of Latham J in the first Wirral case.
48. Second, Mr Lewis relies upon the first Wirral case as showing that a failure to raise such points means that they cannot now be raised as a basis for an assertion that the adjudicator ignored material considerations. He referred to a number of passages in the judgment of Latham J in that case. At page 625, paragraph 19, Latham J said:

"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."

49. Mr Lewis also referred to page 627, paragraph 28, where Latham J said:

"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... 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."

50. Chiefly, Mr Lewis relied upon paragraph 39 at page 629, where Latham J said:

"At the end of the day, the real question remains whether or not, given all the material before him [and these are the words Mr Lewis particularly relied on], the unfairness that he had identified...was a view which could reasonably be held by a schools adjudicator..."

51. Third, Mr Bear submits that the adjudicator's duty to have regard to material considerations is not dependent, or at least not entirely dependent, on what is put before him. If something is the natural and obvious consequence of a potential determination, the adjudicator has to consider, whether the point is put before him or not, what the significance of that consequence is. In support of that, Mr Bear referred to a passage in R v Clark, ex parte JD, an unreported decision of Maurice Kay J on 27 March 2000. I did not find that case of any real assistance here because it deals with the rather different situation where a case takes an unexpected turn. Where that happens, of course it may well be that an adjudicator has an obligation in fairness to make inquiries of potentially affected parties.
52. Fourth, both the submissions of Mr Bear and of Mr Lewis have some force as general propositions, but neither are complete answers. The adjudicator is a specialist, with his own experience, which it is expected he will bring to bear. He is exercising an original jurisdiction with a statutory duty on him. He is not simply resolving a dispute between parties. There will be certain material considerations which are expressly, or by obvious implication, identified by the Act as those to which regard must be had, whether or not they are raised by the affected parties. The code of practice is one such consideration. These will be the considerations fundamental to his decision. There will be other considerations which are relevant in the sense that, if raised, it would be lawful for him to take them into account, but they are ones which he cannot be expected to know or discover for himself or to consider or attribute weight to unless they are raised for his consideration.
53. Of course, unless he is raising a wholly new point which the parties could not reasonably foresee arising, which is not the case here, there is no duty on him to invite representations on any determination which he is minded to make. But that does not mean that he can ignore the obvious consequences of his decision. He has to consider those consequences which the reasonable decision maker, fulfilling that particular statutory duty, would realise were necessary or fundamental considerations arising as part and parcel of his very determination. It is his determination itself which can create the fundamental materiality of such consequences. But unless particular consequences are drawn to his attention, he is only required to consider those which any reasonable adjudicator would regard as obvious and significant in the sense of being fundamental to his decision or at least ones which, upon being considered, would lead to a real possibility of a different decision.
54. The best exposition of the law in relation to this is to be found in the case of Bolton Metropolitan Borough Council v Secretary of State for the Environment and The Greater Manchester Waste Disposal Authority [1991] JPL 241.
55. At page 249, Glidewell LJ said:

"2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he had not taken it into account. Such a matter was relevant to his decision making process. By the verb 'might', he meant whether there was a real possibility that he would reach a different conclusion if he had taken that consideration into account.

3. If a matter was trivial or of small importance in relation to the particular decision, then it followed that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it was not a matter which the decision maker ought to take into account.

4. As Hodgson J. said, there was clearly a distinction between matters which a decision maker was obliged by statute to take into account and those where the obligation to take it into account was to be implied from the nature of the decision and of the matter in question. He (Glidewell L.J.) would refer back to the Creed N.Z. case.

5. If the validity of the decision was challenged on the ground that the decision maker failed to take into a account a matter in the second category, it was for the judge to decide whether it was a matter which the decision maker should have taken into account.

6. If the judge concluded that the matter was 'fundamental to the decision,' or that it was clear that there was a real possibility that the consideration of the matter would have made a difference to the decision, he was thus enabled to hold that the decision was not validly made. But if the judge was uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he did not have before him the material necessary for him to conclude that the decision was invalid."

56. Fifth, it was also submitted by Mr Bear that inferences could be drawn that material considerations were ignored for want of a discussion of them in the determination letter because there was a duty to give reasons for conclusions on material considerations. This is not correct. The reasons duty is not so extensive and no such necessary inference can be drawn. This was established in Bolton v Secretary of State for the Environment [1995] JPL 1043, at 1046, in the House of Lords.
57. Sixth, I should also note R v North West Lancashire Health Authority [2000] 1 WLR 997, in the Court of Appeal, where Buxton LJ said at page 997:

"In reviewing the process whereby those decisions were made, I first remind myself that the decisions are indeed those of the health authority. That is no merely formal observation. What we have to consider is the material, advice and assumptions on which the health authority based its decision, and not, or at least certainly not primarily, the arguments and information adduced by the health authority's advisers to justify those decisions after they had been made."

58. In the instant case, there is a specific statutory duty on the adjudicator to give a determination with reasons. Even more so in such a case is it for question, whether the considerations which were or were not taken into account are to be judged by anything other than the determination letter. In my judgment, where such a duty exists, it is the determination letter which provides the basis upon which inferences should be drawn, and a subsequent witness statement from the adjudicator is not permissible to give guidance as to what was in the adjudicator's mind. I do not consider it appropriate to rely upon the adjudicator's witness statement as supplementing the determination letter. That determination letter, as I have said, is given pursuant to a statutory duty to provide such a letter with reasons. The witness statement was, however, relied on by the claimant to show that the adjudicator took matters into account but gave the claimant no chance to deal with them. I reject that submission. Part of the references in that witness statement are references to general experience, which, of course, quite unobjectionably, the adjudicator can bring to bear and indeed is expected to bring to bear. Insofar as the witness statement deals with merits, it is rebutting allegations of problems created by his determination raised in Mr Griffith's witness statement. I am not concerned with the argument as to the merits that rages between Mr Griffith and the adjudicator.
59. Seven, I should just add that no challenge was raised as to the adequacy of the adjudicator's reasons.
60. I now turn to deal with the allegation that material considerations were omitted. In my judgment, it cannot be said that the adjudicator has ignored any specific statutory considerations or any necessary obvious consequences. First, although I shall say more about the code later for that particular head of challenge, it is clear from many references in the determination letter that the adjudicator had the code well in mind throughout his determination and sought to apply it, and that should be apparent from the already extensive citation earlier from the determination.
61. I should perhaps at this stage, just for the sake of making that point clear, refer briefly to one or two passages in the code to illustrate the point.

"2.2 The following two paragraphs set out guidelines on key aims and objectives...

2.3 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 make the best decision on the school for their children.

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..."

62. Paragraph 3.2:

"Parents applying for a school place for their child need and deserve:

* local admission arrangements which are clear, objective and give every child a fair chance of a satisfactory school place

* full information for an informed choice..."

63. Paragraph 3.4:

"Parents need to be able to make informed decisions when applying for a school place for their children. They must therefore have all relevant information to hand before they apply. It is easier for parents where the admission system in their local area is clear, fair and objective."

64. It is inherent in the language of such a code, that the code can be taken as support for many differing propositions. Judgment is required in the application of the code, and frequently a determination will involve balancing a range of considerations often in competition with each other. It is to be noted that the code contains no guidance specific to the point which the adjudicator was addressing.
65. Second, the adjudicator does expressly consider some of the consequences of his decision. At the level at which it is necessary and obvious that a reasonable expert adjudicator would consider them, some obvious consequences are not specifically discussed. These include tactical preferences and the risk that many of the doubtful grammar school candidates would apply to all-ability schools as first preferences. But I am unwilling to infer that this very experienced adjudicator ignored those obvious consequences simply because they are not discussed. This may reflect no more than that Wirral did not raise them before him. I have discussed under the heading of rationality the way in which the adjudicator approached practical consequences, although the determination is not expressed precisely in those terms.
66. Third, the adjudicator does not look at the opportunity for an informal expression for non-selective schools admission equivalent to that which he complains of as available to the parents of those who would wish to go to grammar schools. This would be a possible solution on one view of his reasoning. But that, as an omission, is to miss the real point of his decision, which is fairness at the point of dealing with over-subscription.
67. Fourth, the determination letter does indeed look at the beneficial effects and the adverse effects as they were raised before him by Wirral.
68. Fifth, none of the other points raised by Mr Bear are ones in respect of which, in my judgment, complaint can be made that they are not considered, precisely because they were not raised by Wirral. They are not specified as considerations in the Act, nor are they necessarily implicit in the Act as ones which have to be considered. They are not fundamental, nor are they ones which it is clear generate a real possibility of a different result if they were taken into consideration. Rather, they are points which, if raised, it would have been lawful for the adjudicator to consider. It is certainly not clear that there would have been a real possibility of a different decision. Rather, I take the view that it is very unlikely that there would have been any real difference to the decision had they been put before him. But to the extent that I am not clear, that issue has to be resolved against the claimant.
69. I should just add that there is no doubt that the adjudicator did consider all matters which Wirral did in fact raise. Moreover, there is some evidence in the determination itself that the matters complained of as omitted were in fact considered. I shall take those briefly.
70. First of all, the consequences of the decision. It is said that he ignores the risk for parents of those unsuccessful at the grammar school testing either going to the back of the queue for all-ability schools, leading then to the non-selection of grammar schools as a first preference, or leading to a tactical first preference being expressed for all-ability schools in the hope of successfully taking up a grammar school second preference, and the risks of empty grammar school places and serious administration problems to the claimant. This, in my judgment, is too harsh a criticism. The whole point of the adjudicator's conclusion was that parents should indeed take that risk rather than have the advantage of that risk being reduced through the process which Wirral had devised. He expressly considers the parents' position well and recognises the consequence of his determination. Indeed, it might be thought the very purpose of his determination was that parents of those wishing to attend a grammar school should not have the advantage of knowing in advance the test results. He also concludes in paragraph (c)(vii) that educational standards would not be put at risk and he does not consider that the co-ordinated administration arrangements would be at risk. As I have already said, I do not consider that obvious consequences not discussed were therefore ignored.
71. The next point raised by Mr Bear under the heading of material considerations which had been ignored was the need for informed parental choice. I have already referred to the code. Plainly, the adjudicator was fully aware of that point. Informed parental choice provides the whole context for his consideration of fairness, and the purpose of the procedure was specifically to deal with the degree to which and the time at which some parents should have information compared to others.
72. Lastly, under this heading, it is said he ignored the intrinsic differences between selective and non-selective education. Again, as a general proposition, those are points which would be obviously in his mind, and I cannot infer from the material before me, including the way he expressed himself, that he ignored that consideration. At the level of local detail, as opposed to the level of a general proposition, there was nothing provided for him to consider. Of course, there is obvious scope for different views about how far there are parallels to be drawn between a selection process for grammar schools as a form of pre-qualification and awareness of how a denominational school will react to one's religious qualifications as a form of pre-qualification for a denominational school.
73. However, the clear differences in the nature of the forms of education was something of which, at a general level, the adjudicator was bound to be aware and can reasonably be assumed to have taken into account. At a more local level, he was not provided with any material to take it further. In my judgment, that complaint fails.
74. The final ground upon which Mr Bear relies was a failure to comply with the statutory duty under section 84 in relation to the code of practice. Underlying this ground is a submission that the section 84 duty is, in reality, rather more than a duty simply to have regard to the code. Mr Bear submitted that Parliament intended to do more by the statutory language of section 84 than simply to draw the attention of adjudicators to the statements in the code and require them to be aware of it. He submitted that the requirement to have regard to the code meant that the code ought to be given substantial weight, and its approach ought to be implemented unless there was clear reason to diverge from it. Consequently, he said, it was for the court to assess whether adequate regard, in line with those principles, had been given by the adjudicator to the statutory guidance contained in the code. He particularly referred to those passages of the code which relate to an informed parental choice.
75. In my judgment, that underlying submission is wrong. The duty is as set out in the statutory language. It is to have regard to the code. It is not a duty to apply the code. Of course, if there is specific guidance in relation to a particular problem and that guidance is not followed, the duty to give reasons would necessarily entail that reasons be given for that exceptional approach being adopted. But, as I have said, it is inherent in the function of the code and in the breadth of its language that it requires considerable judgment on the part of an LEA or adjudicator as to its application and as to the balance to be struck between the competing considerations which it contains. The duty on the adjudicator to have regard to the code is not one which can possibly be taken as yielding any obligation on the court to assess for itself the weight to be given to the code or to say whether the adjudicator gave it adequate weight.
76. In detail, the adjudicator was plainly aware of the need for information to be provided for parents and was aware that Wirral's approach to that, was fundamental to their determination that selection should precede the expression of preference. He disagreed with their approach because of other aspects of the code, in particular those passages which deal with fairness to all parents. He was the judge as to what was fair to all parents and was entitled to conclude that fairness to all parents overrode such advantage as accrued to the parents of those seeking selective education in having the test results in advance. The material simply can not support an argument that the adjudicator had misunderstood the code, and it is not, in my judgment, a matter of law to be argued before this court that he failed to comply with it. The code simply does not tell just one way.
77. Accordingly, I would just like to express my gratitude to both counsel and say that, not withstanding the attractive arguments of Mr Bear, this application fails. It is dismissed.
78. MR PITT-PAYNE: My Lord, I appear today for the Chief Schools Adjudicator, in substitution for Mr Lewis, who is unable to be present today and sends his apologies. In light of your Lordship's judgment, I would ask for costs.
79. MR JUSTICE OUSELEY: Yes.
80. MR PITT-PAYNE: The parties have exchanged schedules of costs. The amount of the respondent's costs are -- just to tell your Lordship the amount because I do not think any objection is taken to the figure -- the up-to-date figure is £7,955.
81. MR JUSTICE OUSELEY: Very well.
82. MR PITT-PAYNE: Including costs in respect of today. I do not understand there to be any objection to that figure. My friend is nodding. In the circumstances, I would ask your Lordship to make an order for costs in the sum of £7,955.
83. MR JUSTICE OUSELEY: Yes. There will be an order that the claimant do pay the defendant's costs in the sum of £7,955. Shall I take it that VAT is included?
84. MR PITT-PAYNE: I gather it does not include VAT. I understand it should not.
85. MR JUSTICE OUSELEY: It should not? Well, if you do not want it, you will not get it. £7,955.
86. MR PITT-PAYNE: Yes, well, I am instructed that our costs department were told not to put VAT into the calculation.
87. MR JUSTICE OUSELEY: Well, that is a matter between you and your costs department.
88. MR GIFFIN: My Lord, I appear for Mr Bear today, who similarly apologises.
89. MR JUSTICE OUSELEY: No, no, there is no apology necessary. Both counsel told me yesterday they would not be here.
90. MR GIFFIN: My Lord, I am instructed to ask for permission to appeal.
91. MR JUSTICE OUSELEY: Yes.
92. MR GIFFIN: My Lord, I would submit essentially that there are two reasons why the case merits permission to appeal, the first being that it is obviously a matter of considerable importance to a large number of parents and their children in the Wirral area, and your Lordship's judgment recognises that they are not holding it to be unlawful in consequence that the change which the adjudicator is required to be made is capable of having consequences which may seem harsh to one cohort of those parents, and therefore the full testing of the legality of that is an important matter.
93. Secondly, in my submission your Lordship's judgment does raise certain points of law as to the precise approach to be taken in applying to a decision the Wednesbury relevancy test and its relationship with matters which have or have not been expressly addressed to the decision maker in representations.
94. My Lord, obviously there is an issue as to whether it would in fact be possible for any appeal to be brought on in time realistically for the matter to affect the current year's admission round. Even if that were not the case, however, it is obviously the case that for future years, should the Authority wish to seek to go back to what the adjudicator in this instance has rejected, it would be important to know whether the adjudicator acted lawfully in rejecting that. Accordingly, even if in the Court of Appeal it was a matter of seeking declaratory relief only, that would not be without practical consequence.
95. My Lord, those are the grounds on which I make that application.
96. MR JUSTICE OUSELEY: Can you just tell me, does this matter arise annually, so that you have the ability, as the LEA, under section 89(1), to determine arrangements differently from those which adjudicator has determined?
97. MR GIFFIN: My Lord, the matter there is a statutory requirement to determine arrangements annually. There is no fetter on what an Authority can determine. However, there is this consequence, that in the normal course, once an objection has been determined by an adjudicator, then an objection raising substantially the same issues cannot be made again -- I forget whether it is one year or two years that has to elapse in between, but you cannot have the same objection next year unless the Authority has sought to go back to what an adjudicator decided against before.
98. One anticipates, however, that in practical terms, if an Authority simply goes back to what an adjudicator has previously said should not be the position, then assuming that the adjudicator's decision stands as lawful, then the Authority may, absent being able to demonstrate some change in circumstances, face a bit of an uphill struggle to defend its arrangements in the face of a new objection. But I think --
99. MR JUSTICE OUSELEY: Put forward the evidence you did not put forward.
100. MR PITT-PAYNE: Well, my Lord, that --
101. MR JUSTICE OUSELEY: If it is significant.
102. MR GIFFIN: My Lord, obviously that is a possibility, on the facts of this case.
103. MR JUSTICE OUSELEY: Mr Pitt-Payne, do you wish to say anything?
104. MR PITT-PAYNE: My Lord, I resist the application for permission to appeal, really on two bases. One is that, in my submission, this is essentially a case that turns on detailed consideration of the particular facts and the particular determination. Your Lordship has considered very carefully all of the various points that were made by Mr Bear. At the end, your Lordship has not found any merit in any of them and has not expressed any real or significant doubt in respect of any of those points.
105. Secondly, as far as the practical consequences are concerned, my friend accepts that there are difficulties, even were he to succeed in appeal, in effecting the arrangements for the September 2001 school year. What he says, as I understand it, is effectively this: a successful appeal might be of relevance to future years, but if that is the real point at issue in the appeal, then there is no great urgency in deciding whether or not he should have permission to appeal. The right course, therefore, I submit, would be that the question of permission to appeal should be considered by the Court of Appeal rather than your Lordship giving permission to appeal at this stage. So I resist the application.
106. MR JUSTICE OUSELEY: I am not going to grant leave in this case, and I will just explain briefly why.
107. I entirely accept that this is an issue of considerable importance to parents, but this decision has, in my judgment, turned in the end upon an examination of the determination letter itself in this case, rather than upon some more general point of law.
108. Secondly, in examining the detail of that letter, although there are points which, as the debate I had with Mr Lewis reveals, can be raised, when one actually analyses the letter and its issues, there is quite clearly a thread that runs through both Wirral 1 and Wirral 2 which can be simply put that it is unfair for the selection process to precede the expression of preference. It is unfair because of the impact at the point of over-subscription.
109. I do not regard there as being a realistic prospect of that approach by the adjudicator and the rejection of the Wirral approach, being held to be irrational. Accordingly, an appeal to the Court of Appeal, whilst it might in theory lead to a quashing on other grounds, would not clearly lead to any different substantive result. If it were to lead to a different result, it would only be on the basis that I have erred in relation to whether or not the material considerations said to be omitted were ones the adjudicator ought to have expressly brought to mind. If those are thought to be significant and are thought to be capable of affecting the adjudicator's mind, rather than uncertainty over admissions this year or a declaration that they were omitted, those are matters that Wirral can raise before the adjudicator, if they wish to go back and determine arrangements the way that they previously did and take the chance on an objection being made.
110. There is not a general point of importance raised in relation to the way in which I have treated potentially relevant but omitted considerations. I have expressed matters in my own words but have identified the origin of them as being a decision of the Court of Appeal in Bolton. That is a case that has been upheld and referred to on many, many occasions, and there is no need for the Court of Appeal to be invited to consider that position.
111. For those reasons, I am going to refuse leave.