England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		1st December 2004

1. MR JUSTICE BEATSON: This is a challenge to the decision of an admissions appeals panel to an appeal by the claimant, Ms C, in respect of the decision not to offer her younger daughter, "A", a place at All Hallows Church of England Primary School in Nottingham.
2. The application was made in January 2004. It was made for a school outside the claimant's catchment area. On 25th March the local education authority refused to offer a place to A at the school. The letter said that this was because the school's admissions limit had been reached and other pupils had higher priority under the admission arrangements.
3. The claimant appealed against that decision on 8th April. Her reasons for appeal included the fact that her eldest daughter, "P", currently attended the school; that, if the decision was upheld, it would be impossible for the claimant to attend two schools at the same time, by which it is clear she meant deliver and collect children from different schools; and that when P had started at All Hallows School she was informed by the headmaster that there was no catchment area and that A was guaranteed a place at the school, particularly as her sister was attending All Hallows. There are five other reasons given for the appeal, but they are not relevant to these proceedings. The reasons I have set out are numbered 1, 4 and 7.
4. On 15th June 2004 the appeal panel communicated its decision to dismiss the claimant's appeal. The letter written is a standard form letter, stating:

"The Panel carefully considered the evidence of the Local Education Officer, including the school's admissions criteria, number of pupils on roll, accommodation available, internal organisation and class sizes in the school. The Panel accepted that to admit any more children to the school would cause class size prejudice, that is to say prejudice to efficient education or the efficient use of resources as a result of measures which would need to be taken to comply with the duty to limit the size of infant classes. The Panel also accepted that the Published Admission Criteria for the school were correctly and impartially applied in your case. They further accepted that neither of the following circumstances applied:-

(a) the decision by the Local Education Authority to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case.

(b) the school's admission arrangements have not been properly implemented in reaching the decision to refuse the child's admission.

Under the terms of the legislation, the Appeal Panel's powers to allow appeals are restricted to those two grounds and the Panel accepted that there was therefore no basis for granting your appeal. Your appeal was therefore dismissed."

5. The letter is written by the Chief Executive of Nottinghamshire County Council, who, I am informed, is instructed by the local education authority to arrange appeals and to deal with them administratively. Mr Mitchell, on behalf of the defendant, states that this letter was written by Mr Latham not as Chief Executive of Nottinghamshire County Council, but as or on behalf of the appeal panel.
6. The letter effectively sets out the statutory criteria and does not address the individual circumstances of the claimant's case.
7. The challenge is to the sufficiency of the reasons given. The statement of grounds states that the challenge can be cast in a number of ways. First, there is failure to give proper reasons as required. The two grounds relied on by the claimant, that relating to the impossibility of delivering children to different schools and the matter of the guarantee, called for individual treatment in the decision letter. Alternatively, it is said that the Panel failed to consider the grounds of appeal properly or at all or to indicate why the grounds were rejected.
8. Mr Auburn submits that this is so not only in the decision letter, but in what he describes as the defendant's ex post facto justification, to which I will turn.
9. The matter proceeded as follows after the determination of the appeal. On 14th July the claimant's solicitors wrote to the Legal Services Department of the County Council, indicating an intention to seek judicial review and indicating their dissatisfaction both with the original decision and the decision of the Panel. There are in fact two letters, one relating to the original decision and the other relating to the Appeal Panel. That relating to the original decision was sent to the Legal Services Department and that relating to the Panel was marked for the attention of a Mrs Rimmington. In both cases identical statements as to the background were set out before the complaints about the decisions were set out.
10. In respect of the Panel's decision, which is what is before this court today, the following points were made. First, it was not clear that the Panel took into account each of the factors raised by Ms C in her application for appeal. Secondly, infant class size limits had been exceeded in other years at the school. Thirdly, the decision letter makes it appear that the Panel did not follow the correct procedure in considering the appeal and, in particular, did not consider the issues in the following order - first, the school's published admission arrangements, secondly, whether admission arrangements had been correctly applied and, thirdly, whether the decision reached was a reasonable decision.
11. The defendant's solicitors replied on 27th July. They wrote a single composite letter responding to both the letters of 14th July. The background section was a joint and single section. It was followed by separate responses to the points made in relation to the Council's decision and the Panel's decision.
12. I pause to note that this was unfortunate. The local authority was a party to the appeal before the Panel. While it does not appear in these proceedings that the defendants's interests and those of the local authority's are in conflict, Mr Auburn's criticism of the eliding of responses to complaints about two decisions was that it meant that it appeared as though the response in relation to the background was coming not from the Panel, but from the local authority itself, a party to the panel decision. Even at the hearing, Mr Mitchell sought to rely on one paragraph from the background decision until I indicated that it was not clear whether this paragraph was a response from the authority in relation to its decision or in relation to the Panel's decision. It does appear that convenient administrative arrangements for handling matters within the education system may have been taken too far. I observe that it would have been more satisfactory for the decision letter not to be sent from a person described as the Chief Executive without indicating that in that context he was acting for and on behalf of the Panel. This eliding of convenient administrative arrangements continued in the response from the Legal Services Department. The claimants had written two separate letters and that should have alerted the defendants to the point that the parties were different, notwithstanding the fact that the background section was the same.
13. Turning to the substance of the response, the Legal Services Department said of the Panel's decision that the letter of 15th June may, on the face of it, be misleading with regard to the procedure followed, but that the reality was that the Panel followed the Appeals Code. It also stated that the Panel considered whether the LEA had correctly applied the admission arrangements in relation to A on the basis of the information available to them and they had previously considered the admission arrangements as specified in the prospectus. They then considered whether the decision was one which a reasonable admission authority would make. They confirmed that the guidance in the Appeal Code had been followed in relation to the order of matters to be considered and it was stated that all the matters raised by the claimant in the appeal had been considered by the Panel. They concluded that, other than the slightly misleading decision letter, there was no evidence to suggest that the Panel's decision was not reasonable and rational. They stated that the local authority had provided evidence that the prejudice would be caused by putting in place qualifying measures because an additional teacher would have had to have been employed.
14. The claimant's solicitors responded to that letter on 2nd August, a letter which is not before the court but which Mr Mitchell's skeleton argument summarises in part. It appears that this letter complained that no evidence had been provided that these matters had been taken into account and maintained the points that infant classes had been exceeded in previous years and that the Appeal Panel appeared to have failed to follow the correct procedure in considering the appeal.
15. On 10th August Mr Purseglove, who presided at the Admission Appeal Panel, made a witness statement. This set out the process and, inter alia, states that the Panel considered Ms C's reasons and asked a number of questions, in particular about the catchment area and what the head teacher had said to her, discussed one other school, and then dealt with other matters considered by the Panel, including the local education officer's advice as to the numbers in the school and the process and its statement that infant class size prejudice would be caused if a further pupil was admitted to the reception class at All Hallows. The statement goes on to set out what the clerk had advised the Panel as to what they had to consider. They first considered admission arrangements, then the way the local education authority had applied them, about which they had some concerns which at one time appeared relevant but are longer relevant to these proceedings. They then considered, taking account of all the evidence presented to them by the LEA and Ms C, whether the decision was unreasonable. He states that they were satisfied that the LEA had demonstrated that qualifying measures would be needed to comply with class size limits.
16. Mr Mitchell, on behalf of the authority, submits that this was a response to the particular concerns raised in the letter dated 14th July and the complaint on 2nd August that the response had not been in the form of evidence.
17. Thereafter the defendant's solicitors sent the claimant's solicitors a copy of the notes taken by the defendant's clerk at the appeal panel hearing, and on 2nd September the claimant's solicitors served the application for judicial review, seeking urgent consideration. Leave was refused on the papers by Ouseley J on 6th September. His Lordship observed that:

"Whilst the Panel decision letter is uninformative, the claim is shown to be unarguable by the letters of 27th July, 4th August and on Mr Purseglove's witness statement. This also explains the reference to procedures being wrongly applied but not to the claimant's prejudice - an error was made affecting someone else. The Panel was entitled to resolve whether any 'guarantee' was likely to have been made."

The application for permission was renewed and permission was given on 13th October by Munby J.

18. Mr Auburn's case is that there is a statutory requirement that reasons be given. This is set out in regulation 1.8 of the Education (Admissions Appeals Arrangements) (England) Regulations 2002, SI 2002/2899, which provides:

"The decision of an appeal panel and the grounds on which it is made shall be communicated by the panel in writing to -

(a) the appellant and the local education authority..."

19. He points to the guidance given in the Code of Practice on School Admissions Appeals in relation to non-infant places. Paragraph 4.81 of that code of practice states that decision letters should make reference to the two-stage process, unless it was not followed, and also that the letter should also explain in full why the panel decided that the individual circumstances of the parents' case were considered sufficient or insufficient to outweigh the prejudice arguments of the admission authority.
20. He submits that neither the decision letter nor the letter from the solicitors, nor Mr Purseglove's witness statement, tell the claimant how the Panel addressed her concerns, in particular about the impossibility of her delivering children to two separate schools and the question of the guarantee. In relation to these, the notes made by Mr Robinson, the clerk of the appeal panel, and Ms Lambert, an administrative officer who was assisting him and made separate notes, show that these matters were mentioned. There are references to guarantees of places and to difficulties in transporting the children to two different schools. There is a difference in the recorded notes in that the clerk stated that, in exploring the question of the guarantee, the claimant's evidence before the appeal panel was that there the headmaster had said that A was likely to get a place with a sibling connection. The clerical officer stated that what was said was that A would be "more or less guaranteed" a place. In the claimant's witness statement she stated she was told by the headmaster that A would be guaranteed a place and that, had she not been told this or had she been aware of the catchment area problems, she would have considered removing her older daughter from the school.
21. I cannot resolve this conflict of evidence. It does appear that guarantees were mentioned. It is not possible to determine what it was that the claimant said.
22. Mr Auburn relies on a number of cases which, he submits, show that while a standard form letter in response to the dismissal of an appeal by an appeal panel is sometimes sufficient, it is not in a case such as this. He submits that it is unsatisfactory for the response to a statutory duty to provide the grounds on which a decision is made should be communicated in this form.
23. Mr Auburn relies on a number of decisions, in particular McKeown v Appeal Committee and Governors of Cardinal Heenan High School [1998] ELR 578, R v Birmingham City Council Education Appeals Committee ex parte B [1999] ELR 305, R (on the application of) L v The Independent Appeal Panel of St Edward's College [2001] ELR 542, and R (on the application of) M-P v Barking and Dagenham Abbey Comprehensive School [2003] ELR 144, for the proposition while standard form reasons may sometimes suffice in the present context, they do not where a significant issue has been raised.
24. The authorities can be summed up as follows. They recognise the need to balance the volume of appeals and the requirement in the regulations that reasons be given. In the Birmingham case, Scott Baker J (as he then was) approved of the remarks of Macpherson J in R v Lancashire County Council ex parte M [1995] ELR 136 that there is nothing wrong with a local authority having a standard form letter which can be modified if required, but disagreed that a standard letter, without more, would be sufficient. His Lordship said that:

"... there may be many run-of-the-mill cases which can be dealt with by a letter in very much standard form. But it is in my judgment important that an appellant, and in particular an unsuccessful appellant, knows, broadly, why his appeal has been unsuccessful..."

It is noteworthy that his Lordship does not believe that a standard form letter, without more, is sufficient.

25. In the St Edward's College case, Morison J considered that a standard form letter might be appropriate where the appellant has simply asked for the panel to review what the admissions committee have already decided, but if there were issues of fact to be reached by the panel, as was the case in the Birmingham City case, then the applicant is entitled to know how the facts were resolved and briefly why. It is important to note in this context, as Mr Mitchell pointed out in his submissions, that in that case the issue concerned the panel's doubt as to what was said about the residential address of the child, and that the doubts of the panel had not been put to the parents at the hearing. That is indeed a question of fact and a question of veracity.
26. In McKeown v Cardinal Heenan, Carnwath J doubted whether a standard form letter really complies with the statutory requirement. That case set aside the decision, as was done in the Birmingham case.
27. The only case in which the decision was not set aside was the St Edward's College case, in which Morison J stated that although the letter fell below the standard required in not explaining to the parents how it had dealt with the alleged misreporting of their child's contribution to sport and how that had affected the points allocated to that child, he stated that at the end of the day the complaint could be characterised as a complaint about form rather than substance. He stated that the reasoning of the panel was truncated but later elaborated upon by the college's solicitors in a full letter sent to the applicant in November. The proceedings had been started without a letter before action. Had such a letter been sent, then the procedural mishap could have been cured. He concludes that in any event it was not, in his judgment, sensible that a new panel be empanelled for a new decision during the course of the year.
28. It is submitted on behalf of the claimant that she has raised two substantial points: the guarantee point raises an issue that something has gone wrong in the process and the impossibility of her getting both children to school on time raises an issue of fact. Mr Auburn submits that neither the decision, nor the notes on decision, nor the solicitor's letter, nor Mr Purseglove's witness statement, explain what the basis of the decision is. All the solicitor's letter and Mr Purseglove's letter do is to say that all relevant considerations and all the matters put before the panel by the claimant were taken into account. He submits that this is a matter of more than form, in particular in relation to the guarantee point since the school's Admission Code of Practice, paragraph 7.27, states that even where an offer or a statement that a child will be given a place at a school is unauthorised, a parent can reasonably expect that the person making the offer had authority to do so, and in these circumstances the admission authority should normally honour the offer, even though in fact it may not have authorised that person to make it. He also submits that in relation to transport there is a substantial issue which goes to more than form.
29. On behalf of the defendant, Mr Mitchell submits that in view of the statutory framework relating to infants schools, all that the appeal panel was required to do was to balance the arguments put by the claimant and to conclude whether or not, in the light of those, the decision of the local authority not to admit A to the school was unreasonable.
30. Section 1 of the School Standards and Framework Act 1998 imposes a duty on the Secretary of State to limit class sizes for infants at maintained schools to 30 and effect to this is given by regulations (SI 1998/1973). He submits that the cases relied on by Mr Auburn did not concern infant schools where there is a statutory cap on numbers. They concerned other schools in respect of which the discretion of the education authority, and thus of the appeal panel, is more constrained.
31. Mr Auburn submits that there is a greater need for reasons where the decision is a broad discretionary one. I do not accept this argument. Where an authority is given a broad discretion, the function of reasons as identifying a possible ground of review or appeal, where there is an appeal, differs in degree to that where the grounds upon which a public body can act are more restricted.
32. The defendant submits that if the factors raised were considered and the balancing exercise undertaken, then review in the present case is only a matter of form. The defendant relies on the onus on the appellant to satisfy the appeal panel that the matters are made out. Mr Mitchell argues that decisions such as Education Committee for Blackpool ex parte Taylor [1999] ELR 237 and R (Khundakji and Salahi) v Cardiff County Council [2003] EWHC 436 make it clear that decision letters do not need to rehearse every matter and it is for the defendant to carry out the balancing exercise. He also pointed to the latter decision as showing that issues about difficulties of transport are commonplace.
33. Mr Mitchell also submits that there is evidence before me in Mr Robinson's, the clerk of the panel, statement that the issues raised by the claimant were not out of the ordinary, and he therefore submits that this case falls into the run-of-the-mill category. Since, he says, there is no challenge to the rationality of the decision, he submits that the application should be dismissed since the challenge is one of form. He submits that the criticisms made of the solicitor's letter and Mr Purseglove's statement are misplaced because they were replying to concerns raised in the claimant's solicitor's letters of July and August.
34. Mr Auburn's response is that, whatever the context in which those letters were written, the challenge and the grounds of the challenge have been known to the defendants since early September. They have had many months to respond to the points raised, but have not done so either after receiving the application or after permission was granted. In this sense, it should be noted, the situation is different from that in the case of St Edward's College, where Morison J stated that the reasoning was elaborated in a full letter by the solicitors in November.
35. I have concluded that, notwithstanding the limited grounds upon which an appeal panel can allow an appeal in respect of an infant school, and notwithstanding the force of Mr Mitchell's arguments that ultimately the considerations contained in the solicitor's letter that the school was full and that that fact and the statutory requirements imposed on infant school classes in relation to numbers would not be outweighed by the considerations raised by the claimant, the failure to give reasons cannot, in this case, be regarded as formal. Mr Auburn fairly states that at the date of the hearing there is still no knowledge of the basis upon which the decision was reached. All there is are statements in the solicitor's letter and the witness statement that all the factors had been taken into account.
36. I emphasise that there is a tension between the statutory requirement for the grounds of decision to be given and the need for some administratively convenient way of dealing with a large volume of cases. Nevertheless, the authorities which have been put before me all make it clear that, save where there is a simple request for a general review of the decision raising no substantial issue, the decisions should address the particular case. In the present case neither the standard form letter nor the solicitor's letter, nor the witness statement, explain why the claimant has not succeeded in her appeal. There is no need for any elaborate decision. This is not a case in which the authority invited an elaboration of reasons, nor were reasons given. Of the factual issues, had only the transport issues stood, I might have concluded that the evidence of Mr Robinson and common sense suggested that the challenge might have been one of form only, but in view of what is said about a guarantee of a place, the factual dispute about that, the claimant is entitled to know how the panel dealt with that. For that reason, this application is allowed.
37. MR AUBURN: My Lord, I am very grateful. The first thing I should mention is I am not sure if there is any section 39 order --
38. MR JUSTICE BEATSON: There did not seem to be one. Are you asking for one?
39. MR AUBURN: Yes.
40. MR JUSTICE BEATSON: I make an order that the claimant should be identified as "C".
41. MR AUBURN: Thank you. My Lord, in relation to costs, I ask for costs to follow the event.
42. MR JUSTICE BEATSON: Are you legally aided?
43. MR AUBURN: Yes.
44. MR JUSTICE BEATSON: I will hear what Mr Mitchell says.
45. MR MITCHELL: I resist the application for costs, my Lord, on two bases. Firstly, as I think is now clear, and became clear during the course of hearing, the grounds raised in the statement of case and as are argued today were not those that were rehearsed by the claimant through her solicitors before proceedings again. There is a pre-action protocol governing judicial review cases in which it is made quite clear that before proceedings begin you are supposed to rehearse it with the local authority or the government body you are seeking to review - that was not done in this case. Secondly, as you have just heard, the claimant is legally aided. The Council is a public body, it is public money, and all you are doing, if you order the defendant to pay the claimant's costs, is shovelling money from one public body to another out of the ratepayers' coffers of Nottinghamshire into the central government coffers of the Legal Services Commission.
46. MR JUSTICE BEATSON: Of course, the second reason is a reason which applies to many cases and is unsuccessful in those cases. I do, however, consider that the first reason is a reason that is weighty, Mr Auburn.
47. MR AUBURN: Yes, my Lord. In relation to this, I can say that I appreciate the case moved on from before action. However, the defendant only started defending the judicial review after permission was granted, so in terms of the costs that have been incurred they only started occurring costs in this litigation after permission.
48. MR JUSTICE BEATSON: Which was given on 13th October.
49. MR AUBURN: Yes. Further, I would also say that even if we had started the case on basis of the letter before action, we could always have amended. I do not think it could have been said that we would not get no costs because we amended on that basis.
50. MR JUSTICE BEATSON: Yes. Thank you.
51. I am not going to give you your costs in this case on the first ground raised by Mr Mitchell. It is important that pre-action protocols be adhered to.
52. MR MITCHELL: One final formality, if I may, my Lord. I seek permission to appeal your Lordship's decision on three grounds - these are in no particular order. Firstly, my Lord, you have referred to fact that there was a factual dispute before the appeal panel which required to be resolved relating to the headmaster's guarantee. In my submission, that is an error of law on your part because the evidence you have before you is all one way: only the claimant said anything about the guarantee, the local education authority said nothing about it. There was no factual dispute in those circumstances that required resolution. That is point number 1. Point number 2, your Lordship has referred during the course of your judgment, and indeed at length rehearsed it during the course of the hearing, to the tension in the cases between the need to deal administratively and expeditiously with these matters and standard form letters and the need to give reasons, and there is also the tension in the guidance that is issued in that the guidance in respect of non-infant appeals says (inaudible), whereas the guidance except in infant appeals does not. In my submission, that is a matter of public importance which would be of benefit to have guidance from the Court of Appeal. Thirdly, there is the balancing exercise that where in circumstances where the decision maker is merely required to make a balancing exercise, as I submit is the basis of the Cardiff case, as happened here, it is an error of law on your Lordship's part, with respect, to say that in those circumstances reasons should also be given. All that is required, in my submission, as a matter of law, is for the decision maker to take account of what was said, balance it and exercise its discretion. So on those three bases I seek permission to appeal.
53. MR JUSTICE BEATSON: I am not going to give you permission. First of all, I do not accept there was no factual dispute. The claimant raised this matter and it is clear from the notes that there were issues as to what was said. Secondly, as far as the tension in the cases as to what is required, I consider that that is a matter which the Court of Appeal should decide whether it wants to hear. Thirdly, I consider that it is not arguable, in relation to a challenge on the grounds of failure to give reasons, that there is no duty to give reasons in this context given the statutory context because of the nature of the exercise to be performed by the decision maker.
54. MR MITCHELL: Thank you, my Lord.
55. MR AUBURN: Just finally, as you know, the claimant is publicly funded and I ask for a detailed assessment in accordance with the public funding regulations.
56. MR JUSTICE BEATSON: Yes. Thank you very much.