England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 September 2002

Mr Justice Scott Baker:

1. The Claimants WB and KA are children attending, or who were until recently attending, All Saints Church of England Junior School, Otley. The decision challenged is that of the Defendants, the Leeds School Organisation Committee, of 10 September 2001 to discontinue the school. The substantive application for judicial review comes before me following the order of the Court of Appeal on 20 June 2002 granting permission. Permission had previously been refused by Sullivan J on paper and Maurice Kay J at an oral hearing.
2. There are two issues. The first is whether the Defendants were entitled to hear any objector orally if they considered that to do so would help them and whether they were in error in not inviting or accepting particular oral submissions. The second is whether a parent, rather than the child, is the appropriate claimant in a case such as this. The Claimants have made it clear that the relief sought in the present case extends to no more than declaratory relief. As the Court of Appeal pointed out, no court would grant any form of relief that would have the effect or potential effect of disturbing the school re-organisation that is now all but complete. The present hearing, therefore, is for the purpose of resolving a potentially recurrent issue by clarifying the powers of school organisation committees.

Factual background

3. Leeds Local Education Committee has been criticised by Ofsted for poor planning, and its failure to manage properly the over provision of primary school places in the Leeds area. 46 primary schools have surplus places of 25 percent or more. Leeds LEA’s response to this criticism was to develop a long term strategy for provision of school places in (among others) the primary sector. It made a public commitment to reduce by at least half the number of schools with over 25 percent surplus and to do so by 2003. Leeds LEA’s functions in this respect have been taken over by Education Leeds, a company wholly owned by Leeds City Council.
4. Otley has a large surplus of primary sector places. In December 2000 there were about 1250 places available of which 400 were unfilled. This was projected to increase to nearer 500 by 2004. Re-organisation of schools with consequent amalgamations and/or closures was and is therefore an urgent priority.

Statutory framework

5. Chapter II of the School Standards and Framework Act 1998 (“the 1998 Act”) and the regulations made thereunder provide the machinery for the establishment, alteration, or discontinuance of schools.
6. Section 29(1) and (3) of the 1998 Act provide that where a LEA proposes to discontinue a community, foundation or voluntary school it must publish proposals in the manner prescribed containing the information prescribed.
7. By Section 29(4), before publishing any proposals the LEA “shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection….. shall have regard to any guidance given from time to time by the Secretary of State.”
8. The relevant guidance is to be found in DfEE circular 9/99. Those who should be consulted include parents and teachers in the area who may be affected by the proposals. By Section 24(1) each local education authority in England is required to establish a school organisation committee for its area. Its membership is required to include at least one person within certain categories namely:

A member of the LEA.

A person nominated by the Diocesan Board of Education for any diocese of the Church of England in the LEA’s area.

A person nominated by the Bishop of any Roman Catholic Church diocese in the LEA’s area.

9. Schedule 4 makes detailed provisions as to School Organisation Committees. These include (paragraph 7) power to regulate their own procedure.
10. Section 25 provides for the appointment by the Secretary of State of adjudicators. Their powers include, (see Schedule 6 paragraph 5), in certain circumstances, hearing references from the School Organisation Committee. Where proposals are referred an adjudicator, he hears matters afresh.
11. By Schedule 6 paragraph 3(2) the School Organisation Committee may reject the proposals, approve them without modification or approve them with such modifications as it thinks desirable after consulting such bodies as may be prescribed. It is required to have regard to any guidance given from time to time by the Secretary of State and the school organisation plan for the Committee’s area.

The procedure followed in the present case.

12. Five schools were affected by the proposals to re-organise primary school provision in Otley. The consultation process began in March 2001. The parents of children at All Saints Church of England Junior School were not the only ones who, whilst supporting in principle the proposal to provide a primary school in South Otley instead of separate infant and junior schools, objected to the closure of their school with amalgamation on another site. The parents of children at All Saints Infants School took the same view, albeit the proposal was to have the new junior school on its site.
13. In March 2001 proposals were sent to all parents with details of the various options. Included was a statutory timetable for consultation meetings. This said the parents, staff, governors and the public were being consulted during March and April and that in May the Executive Board of the Leeds City Council would receive a report summarising all the views and decide whether to go ahead with the proposals or change its plans. If the decision was to go ahead, public notices would be published in late May and there would then be two months for statutory objections to be made. In August 2001 the Executive Board would consider any objections and decide whether it still wished to proceed. If it did, the Council’s proposals, together with any statutory objections would be sent to the Leeds School Organisation Committee. A final decision should be reached around October 2001 and if the School Organisation Committee agreed with the proposals arrangements would be made to set up the new schools. Recipients of the proposals were encouraged to respond and were invited to one of several public meetings.
14. There was indeed a considerable response and formal notice of the proposals was published on 18 May 2001. This included closure of All Saints Junior and Infant Schools and amalgamation into a new Church of England Primary School from 31 August 2002 to be called All Saints Church of England Primary School which was to be on the site of the former Infant School. A parents’ action group was set up and it gathered a lot of support against closures.
15. On 22 August 2001 the Executive Board of LEA resolved:

To note the statutory objections and responses given by Education Leeds.

To proceed with the published proposals in respect of future primary school provision in Otley and the proposals be submitted to the School Organisation Committee for determination.

To note that further recent representations received by Board members would also be presented to the School Organisation Committee for consideration in addition to the statutory objections.

16. The School Organisation Committee met on 10 September 2001. It had before it extensive documents including all the statutory objections and an analysis of them. It decided unanimously to approve the proposal to discontinue All Saints Junior School and All Saints Infant School and to establish a new All Saints Primary School on the site of the former Infant School.
17. What happened at the meeting on 10 September 2001 is to be gleaned from the minutes and from the statement of the chair, Mr Gruen. As was common practice the various groups that together constituted the School Organisation Committee met separately prior to the meeting to discuss the proposals. When the full School Organisation Committee meeting took place, again as was normal practice, the chair asked each of the groups in turn whether they had sufficient information about the proposals to be able to vote on them. If there was insufficient information, either from those making the proposal or the objectors then members were entitled to ask for more information. If the information was not available at the meeting then the meeting could be adjourned in order to obtain it.
18. Various questions were asked of Education Leeds staff and answered. No one on the School Organisation Committee suggested any more information was required from objectors. There was then a unanimous vote. Mr Gruen says in his statement:

“I can confirm that the Leeds School Organisation Committee on this occasion did exercise its power to consider whether or not to hear from the objectors.”

The Claimants’ case

19. There is no complaint whatever about the consultation process prior to the School Organisation Committee becoming seised of the matter. What is said is that the principles of natural justice impose a duty on the School Organisation Committee, even if it has no obligation to hear objectors, to give careful consideration to whether it should exercise its power to hear them. The following questions arise. Has it such a power? If so should it have considered exercising it? And did it in fact do so in this case? It is said that the practice varies in different parts of the country. Some School Organisation Committees hear representations; others do not.
20. Mr Marc Beaumont, for the Claimants, submits that it is not enough to say that the objectors can make their representations to the LEA about the School Organisation Committee’s powers and why they should be exercised, for instance to modify a proposal, during the period of objection when (a) the matter is then at a formative stage and has not yet been passed to the School Organisation Committee and (b) no one has yet explained to the objectors that the School Organisation Committee has powers short of outright approval or rejection of the proposal.
21. The situation in the present case is somewhat complicated by the fact that although it had been very active in the consultation process, the parents’ action group was not represented at the School Organisation Committee meeting; it was not invited to it and had no notice of it. One of the resolutions passed by the School Organisation Committee at the meeting on 10 September 2001 was:

“To agree that the committee should look at the possibility of holding future meetings, where the reorganisation of schools was being considered, in the area effected and arranging better publicity for such meetings.”

22. The School Organisation Committee’s standing orders provide that its meetings shall be open to the public except in such limited circumstances as agreed by it, where to do so might prejudice discussion. They also provide that all decisions taken on statutory proposals submitted at the Committee by the Local Education Authority shall be taken in public. Also:

“The Committee may invite or agree to receive a delegation or take evidence from a range of views prior to reaching a decision. The attendance of such people at any meeting of the Committee will confer on them the right to speak but not to vote.”

23. It is clearly unfortunate that inadequate notice was given of the meeting on 10 September 2001 and in particular that the parents’ action group was not informed of it. There is little purpose in providing that meetings shall be open to the public if their time and place is not properly publicised in particular to those who have an obvious interest.
24. Mr Beaumont’s basic submission is that the School Organisation Committee were in breach of natural justice in failing to hear both sides before reaching their decision. The Claimants’ rights at common law give rise if not to a duty at least to a power to hear oral representations and the School Organisation Committee acted unlawfully in failing to consider exercising it.
25. He relies on Lord Bridge in Lloyd v McMahon [1987] AC 625, 702 who pointed out that it is well-established that when any statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness:

He points out that neither the legislation nor the guidance says anything about:

i) conducting meetings in public;

ii) giving notice to objectors of the date and place of meetings; or

iii) hearing oral submissions.

26. These are all matters that can be addressed under the School Organisation Committee’s power to regulate its own procedure. Both (i) and (ii) are matters that in my view require to be covered in standing orders. As to oral submissions it is in my judgment important to have in mind the statutory procedure as a whole. The time for making objections comes earlier in the process. But, as Mr Beaumont invites me to note, there are all sorts of points that may crop up that could warrant further input from objectors. It is for this reason that it seems to me clear that the Committee must have inherent power to hear further from objectors and that this could be either at the request of an objector or at the instigation of the Committee themselves. If, as here, the objectors are not made aware of when and where the Committee is to meet they are at a potential disadvantage in being unable to ask the Committee to listen to further representations on some particular point. This, however, is a far cry from saying that they have any entitlement to press all their objections orally before the Committee. For example there was no entitlement for Professor Soussan to make a detailed presentation to the Committee. The School Organisation Committee does not operate as if it is a court of law.
27. The submission of Ms Mountfield for the Defendant is essentially this. No rule of natural justice requires the School Organisation Committee, whether by request or of its own motion, to consult further once they are seised of the matter. As I have said I think that it has the power albeit not the obligation to do so but Ms Mountfield submits that they did duly consider whether further consultation/information was necessary and decided that it was not. The statutory process is such that parents and other objectors are required to set out their objections at an earlier stage so that the material is before the Committee and they are in a position to make a decision.
28. It is I think helpful to have in mind the procedure that was followed before the 1998 Act came into force. Then, the final stage was for the Secretary of State to make the decision. He was under no obligation to hold a hearing and there was no procedure for the making of oral representations to him. What has happened with the 1998 Act is that the School Organisation Committee has replaced the Secretary of State. It is comprised on a constituency basis with an in built right of veto but it was never in my judgment intended to institute an extra consultation layer in the process. The right of objection ends with the end of the statutory consultation period.
29. That said, however, the move has been towards a more democratic and open process with the School Organisation Committee replacing the Secretary of State as the decision maker with the final fall back being an adjudicator.
30. It seems to me to be eminent good sense that School Organisation Committees should have the power to seek further information if they wish it. Obviously from time to time issues will arise that need to be clarified and indeed the standing orders envisage just that. But the ball lies in the Committee’s court. They have the final say whether to invite or agree to receive oral or other representations. It is true that the legislation contains no express power to do so, but paragraph 7 of Schedule 4 to the 1998 Act gives it power to regulate its own procedure. Even absent standing orders, I would have no hesitation in concluding that this and indeed any other School Organisation Committee has this power. Whether a Committee chooses to exercise the power on the facts of a particular case is an issue that I would prefer to approach on rationality grounds rather than natural justice. The right to be heard is something that the legislation envisages by way of written objections at an earlier stage in the process. The School Organisation Committee is provided with the ingredients and is charged with making the decision. The issues that a particular case raises, and each party’s views on them, should be clearly laid out by the time the case is put before the Committee.

Whether a parent is an appropriate Claimant

31. The Defendants contend that children are not appropriate claimants in cases such as this. The argument is that for children rather than their parents to bring proceedings is an abuse of process. The claim is in reality that of the parents and not the child. The argument is that whereas children are likely to be eligible for public funding the probability is that parents will not be.
32. In granting permission the Court of Appeal said this:

“The proposition for the School Organisation Committee relied on a passage in the judgment of Kennedy L.J. in R v Richmond LBC ex p JC [2001] ELR 13 para 31, goes not to standing but to abuse and hence discretion. It merits careful consideration, but it is obiter and in our respectful view not easy to apply. We are not persuaded that the fact that some of the parents who were objectors are ineligible for public funding and have a sufficient interest is necessarily enough to render the claim an abuse, and we think the concept of a device needs elaboration.”

What Kennedy L.J. had said was this:

(31) “As to the first issue – of identity – I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parent’s expression of preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge. I accept that the child may have a sufficient interest to mount a challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review, but normally, as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in costs. That I regard as an abuse. Our legal system works upon the basis that those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission to apply for judicial review may well be refused on that ground.”

Ward L.J. picked up the same theme at (68) in answering the question: whose appeal? He said:

“The answer admits of no argument. Section 423 of the Education Act 1996 in dealing with ‘appeal arrangements’ provides:

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

(a) any decision made by or on behalf of the Authority as to the school at which education is to be provided for the child…….

It is, therefore, the parent’s appeal not the child’s. The system is open to abuse if the child applies for legal aid and that abuse must be curtailed.”

33. In B v Head Teacher of Alperton Community School [2001] ELR 359 Newman J concluded that neither the age of the child nor his preference for the school amounted to exceptional circumstances in that case. He said, having cited Kennedy L.J. in J.C:

“(15)……in my judgment neither are ‘exceptional’ within the meaning of the judgment of Kennedy L.J. He accepted that a child may have a sufficient interest, to which both Mr Rawlings’ points go, but the rationale of the judgment is that it is the parents’ legal right and its enforcement by the parents is sufficient to protect the child’s interest. Exceptional circumstances will arise where the child’s interest is not protected by the action of the parents. The application should not have been issued in the name of C……..”

34. The observations of Kennedy and Ward L.J.J. in J.C. and Newman J in the Alperton case are all related to admissions challenges whereas the present case is a school closure or reorganisation challenge. There is no indication that their observations were intended for any wider application than the particular type of case with which there were concerned. Furthermore, as Ward L.J. pointed out the right of appeal in admissions cases under Section 423 is very clearly that of the parent rather than the child.
35. The point at issue goes to discretion rather than standing. It is not, I think, in doubt that both the child and the parents have sufficient standing in the present type of case to bring judicial review proceedings. As Sedley L.J. pointed out, there is nothing in the statute that prevents the School Organisation Committee from hearing pupils’ views. There may be cases where it is an abuse of process and that permission should thus be refused for a parent to bring proceedings in the name of the child. These will be cases where the proceedings are indisputably those of the parent and he uses the child as claimant solely for the purpose of obtaining public funding to which he would not otherwise be entitled. However, whether or not the specific facts of a particular case amount to an abuse is something that would need to be explored with some care.
36. In the present case the Claimants represent a larger, original, group of potential claimants which included both parents and children. They were selected as a sample in order to be economical in the use of public funds. The group contained parents who were on state benefits and could well have been chosen as the sample applicants. Mr Beaumont, for the Claimants, submits that the selection of the children was not, therefore, a device. They were selected at random. Had it been felt that the decision in J.C was a bar to children being the applicants in a closure case, parents on state benefits would have been selected instead.
37. My conclusion on this point is therefore as follows. Both parents and children have a sufficient interest to bring proceeding for judicial review in school closure or re-organisation cases. Ordinarily, it is likely to be the parents who have the real and primary interest in bringing the case. It is, as Ms Mountfield points out, the parents and not the children who have the right to be consulted under the legislation and the parents whose objections are required to be taken into account under the DfEE guidance. It may be an abuse of process for proceeding to be bought in the name of a child rather than a parent where this is done for the purposes of obtaining public funding and protection against a possible costs order. However, clear evidence would be needed to establish this and there is no such evidence in the present case.

Conclusion

38. The Court of Appeal made clear when remitting the case for a substantive hearing that relief other than declaratory relief was inappropriate in this case, but that the two issues with which I have dealt should be clarified for the benefit of others. My conclusion is that the School Organisation Committee are entitled to hear any objector orally if they consider that to do so will help them. Failure to invite or accept particular oral submissions may, depending on the circumstances, amount to an error of law. It is now common ground that there is no general right of objectors to be heard orally by a School Organisation Committee. It is up to the School Organisation Committee to consider the position in each case. The evidence of Mr Gruen makes it clear that the School Organisation Committee did in fact conclude that it did not need to hear from the objectors in this case.
39. On the second point there is neither lack of standing nor abuse of process in the pupils bringing the proceedings in the present case.
40. I do not think it is appropriate or necessary to make any declaration in the present case because the School Organisation Committee did consider whether it wished to hear from any of the objectors and decided that it did not. The error that was made was in not giving proper notice to, among other, the Claimants. Whether, if they had been at the meeting the Claimants would have persuaded the Committee to hear them on any point’s remains to be seen.
41. Bearing in mind the observations of the Court of Appeal, my view is that no order as to costs is the appropriate costs order in the present case. Should either party wish to try and persuade me to a different view on costs I will hear further argument.