Case No: CO/4731/2002
QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (Khundakji and Salahi)
|- and -
|Admissions Appeal Panel of Cardiff County Council
Cardiff County Council
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Peter Oldham (instructed by Cardiff City Council Legal Department) for the Defendant
Crown Copyright ©
Mr Justice Richards:
"(a) Each school has a Standard Admission Number for the relevant age group which in the case of Rhydypenau Primary School is 60. The school is over subscribed, that is to say the number of applications for places exceeds the standard admission number. Applications are considered under the Council's published admission arrangements and this sets the priority for admissions to Community Schools. The Council received a total of 77 preferences and authorised the admission of 60 pupils who are resident within the recognised catchment area of Rhydypenau Primary School.
(b) The Council is also under a statutory duty under the Schools Standards and Framework Act, to ensure that reception classes do not exceed 30 pupils. We cannot offer a place to your child because the admission would cause prejudice to the efficient education or efficient use of resources as a result of the measures we would have to take to comply with the duty to limit the size of infant class sizes. In shorthand this is called 'class size prejudice'. "
"Accordingly, the Appeal Panel having made that finding, then went on to consider if the admission arrangements had been carried out correctly your child would have been admitted to the school. In order to determine this, the Panel took evidence from the Local Education Authority representative, the Headteacher and yourselves. As there were multiple appeals before the Panel, the Panel wished to determine whether had the Local Education Authority carried out the arrangements correctly having regard to parental preference and the personal circumstances of each child, each child was or was not likely to have been admitted.
The Appeal Panel gave careful consideration to the grounds put forward by yourselves which included:-
a) that Lutfi attends Rhydypenau Nursery;
b) that he has an elder brother and elder sister within Rhydypenau school to whom he is very close;
c) that Mr and Mrs Khundakji's health is not very good;
d) that if their appeal is refused that you will have 4 children in three different schools;
e) that Lutfi is a very shy sensitive boy and that he and Renard behave like twins;
f) that Mrs Khundakji is also working for a PH.D and is working as a Maths teacher at the Women Work Shop;
g) that you are of Palestinian origin and accordingly have no family connections in Cardiff.
The Panel found unanimously that applying Paragraph 12 of Schedule 24 of School Standards and Framework Act 1998, in their judgment and balancing the circumstances of the school against your parental preference together with the personal circumstances in your case, the Local Education Authority was not likely to have admitted your child to the school. That is, in your case the Local Education Authority was not likely to have exceeded the statutory class size limit."
"The Appeal Panel gave careful consideration to the grounds put forward by yourselves which included:-
a) that Melecca attends Rhydypenau Nursery;
b) that she has an elder brother within Rhydypenau school to whom she is very close;
c) that you are concerned about the psychological impact if she were to leave a familiar environment;
d) that Mr Salahi has an extremely demanding job that it would be extremely difficult in transporting children to two different schools;
e) that Melecca has an exemplary school record and consequently would be more of an advantage than a burden to Rhydypenau primary;
f) that the family is of Iranian origin and consequently has no family support in Cardiff;
g) that Mr Salahi is extremely concerned that leaving Melecca in the school playground to be collected would endanger her to paedophiles;
h) that they are concerned that Melecca may suffer from racialist abuse if she is sent to a school other than Rhydypenau Primary."
"(1) A local education authority shall make arrangements for enabling the parent of a child in the area of the authority -
(a) to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions, and
(b) to give reasons for his preference.
(2) Subject to subsections (3) and (6) … 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).
(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;
(4) For the purposes of subsection (3)(a) prejudice of the kind referred to in that provision may arise by reason of the measures required to be taken in order to ensure compliance with the duty imposed by section 1(6) (duty of local education authority and governing body to comply with limit on class sizes)."
"11. The matters to be taken into account by an appeal panel in considering an appeal shall include -
(a) any preference expressed by the appellant in respect of the child as mentioned in section 86, and
(b) the arrangements for the admission of pupils published by the local education authority or the governing body under section 92."
"12. Where the decision under appeal was made on the ground that prejudice of the kind referred to in section 86(3)(a) would arise as mentioned in subsection (4) of that section, an appeal panel shall determine that a place is to be offered to the child only if they are satisfied -
(a) that the decision was not one which a reasonable admission authority would make in the circumstances of the case; or
(b) that the child would have been offered a place if the admission arrangements (as published under section 92) had been properly implemented."
"51. … Paragraph 12 does not, in my view, negate para 11 for appeals where the admission decision was made on the basis that to comply with parental preference would take the size of an infants class above 30. Parental preference remains relevant, but the scope for a successful appeal under para 12(a) is limited to cases where the appeal panel are satisfied that the 'decision was not one which a reasonable admission authority would make in the circumstances of the case'. The 'decision' is 'the decision under appeal', that is the decision not to admit the individual child. The 'circumstances of the case' must, in my view, include the child's particular circumstances including, as para 11 requires, any preference expressed by the parents. The circumstances also include the local authority's admission arrangements. So the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit this particular child. I have already indicated my view that the panel's decisions in the present cases did not decide the appeals by reference to individual circumstances …." (page 624, para 51, emphasis added).
"58 … As I have said, there are situations where a local education authority is obliged by s.86(2) of the SSFA 1998 to comply with an expression of parental preference. By a combination of subss (3)(a) and (4), they are not obliged to comply with a parental preference, if to do so would take the size of an infant class above the statutory limit of 30. The fact that the local education authority does not have to comply with the parental preference does not mean that they do not have to take it into account. Nor does it mean that there can be no basis for an appeal against a local authority's decision to refuse admission, if their reason for refusal is that the statutory limit on the size of infant classes would be exceeded. The ground of appeal is that 'the decision is not one which a reasonable admission authority would make in the circumstances of the case'. The 'decision' is the 'decision under appeal', that is the particular decision not to admit the particular child, not, as para B.13 [of the Code of Practice] suggests, 'the decision that class size prejudice would arise'. The 'circumstances of the case' must include the child's circumstances. The available ground of appeal is very limited. It has to be shown that the local education authority's decision not to admit the child was perverse, which may be very difficult indeed, if there are more than 30 children competing for admission to the relevant class. But the circumstances of the particular child are not irrelevant.
59. As I have said, the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit the particular child. I accept Mr Kerr's submission that the admission arrangements may normally be taken for what they are as reasonable, and that the appeal panel's consideration will concentrate on their application to the particular child …." (pages 626-7, paras 58-59, emphasis added).
"63. In the light of all this, if it comes to an appeal to an appeal panel, parents need to make a particular case which is so compelling that the decision not to admit the child is shown to be perverse. A local education authority opposing an appeal will need to explain their admission arrangements, explain their particular problems in relation to the school in question, and show that, unfortunate though it may be, it was objectively fair not to admit the child in question. They may wish to show that they had to refuse admission to several children with good cases, but that admitting one or more of those children would have entailed refusing one or more of those who were admitted because of the class size limit. As to the panel, their task is not simply to rubber stamp the local education authority's decision, but they can only uphold the appeal if they conclude that it was perverse in the light of the admission arrangements to refuse to admit the particular child. Their task is not to take again the original decision" (page 629, para 63).
i) whether, since the panel found that the council had acted unlawfully in its consideration of the applications, they were bound by paragraph 12 of Schedule 24 to determine that places be offered;
ii) whether the panel applied the wrong legal test in their own consideration of the appeals;
iii) whether the panel failed to give adequate reasons and/or reached an irrational decision and/or failed to take account of the Convention, in particular by failing to deal with, or to take a decision that properly reflected, the fact that the children would be liable to arrive late for school if they were not admitted to Rhydypenau; and
iv) whether, in relation to the Khundakjis, the proceedings before the panel were vitiated by procedural unfairness by reason of the failure of the council or the school to disclose material that was allegedly inconsistent with the evidence given to the panel by the head teacher.
First issue: duty to determine that places be offered?
Second issue: error of law by the panel?
Third issue: reasons, rationality and the Convention
"62. … I indicated during the hearing my view that extended reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and cases decided under it would not advance matters. That did not of course mean that Convention rights are irrelevant - far from it. Of course, Hounslow, the panel and this court are public authorities within s.6 of the Human Rights Act 1998 and the court is required by s.2 of the Act to take into account, among other things, decisions of the European Court of Human Rights. But in the present cases the relevant considerations are obvious and can be simply expressed. A local education authority's school admission arrangements must be fair and fairly operated. If a school is over-subscribed, there will necessarily be discrimination, because not every child whose parents apply for admission can be admitted. This may be particularly acute with admissions to infants classes, because of the statutory limit on their size. No one suggests that a limit of this kind is other than desirable. Discrimination needs to have a reasonable objective justification. Some children will have stronger cases than others for admission. A child with an elder brother or sister in a school may well have a strong case wherever they live; but so may a child who lives close to the school. Neither child's relevant Convention rights are by definition infringed, nor is it by definition objectively unfair, if either of them fails to gain admission. If there are too few infant class places for all who apply, local education authorities have to make practical admission decisions which are objectively fair and by a process which is fair" (page 629, para 62).
Fourth issue: procedural fairness
MR JUSTICE RICHARDS: I am handing down judgment in both these cases, without attendance by the parties or their legal representatives. A draft of the judgment was sent to counsel, who have made written submissions as regards consequential orders. For the reasons given in the judgment handed down, both claims are dismissed.
In the case of Khundakji, the claimant is ordered to pay the defendant's costs, amounting to 50 per cent of the costs expended in defending the two claims, such costs to be subject to detailed assessment if not agreed, and such order not to be enforced without the permission of the court. There will also be detailed assessment of the claimant's costs for public funding purposes.
In the case of Salahi, there will be an order that the claimant pay the defendant's costs, again amounting to 50 per cent of the costs of defending the two claims, such costs to be subject to detailed assessment if not agreed.
In both cases permission to appeal is refused on the ground that in the light of the judgment of the Court of Appeal in the Hounslow case, which I referred to at length in my own judgment, there is no real prospect of success, and no compelling reason why an appeal should be considered.