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 WC2A 2LL
		28th October 2008

JUDGE STEWART:

Introduction

1. This is an application by the Governing Body of Drayton Manor High School in the London Borough of Ealing ("the school") for judicial review of the Schools Adjudicator's decision of 16 October 2008 which was as follows:

"Determination

In accordance with section 90(3) of the School Standards and Framework Act 1998, I uphold the objection lodged by the London Borough of Ealing.

I determine that for September 2009 over-subscription criterion 3 should read:

Proximity of the School to the child's home."

I shall refer to the School Standards and Framework Act 1998 as "the 1998 Act".

2. The oversubscription criteria which had been adopted by the school for admissions in September 2009 prior to the decision of the adjudicator were:

"Where applications exceed the number of places available, offers of places will be made using the following criteria in order of priority

1 Children in public care ('Looked After Children')

2 A brother or sister attending the school at the time of application who could reasonably be expected to still be at the school at the date of entry

3 Proximity of the school to the child's home, with those for whom the school is the nearest Ealing High School being accorded the higher priority."

3. The school's governing body, following consultation, ratified these criteria and the school's admission policy in general on 18 March 2008.
4. A skeletal chronology thereafter shows that there was an objection by Ealing London Borough Council on 19 June 2008. On 2 October 2008 the adjudicator circulated a draft determination. It was also the opening date of expression of preference for the 2009/2010 academic year.
5. On 14 October 2008 the school commented on the draft determination. On 16 October 2008 the final determination of the adjudicator was sent out.
6. 24 October 2008 was the closing date for expression of preference for the 2009/2010 academic year, although in the light of events this has been extended to 12 November 2008.

The litigation thus far

7. The brief procedural history of this litigation following the filing of the application at this court by the school on 17 October 2008 is that on the same date Sullivan J considered the claimant's application for interim relief and made an order in these terms:

"1. Pending the hearing referred to in paragraph (2) below the London Borough of Ealing is restrained from communicating with any parent or other person to the effect that the School's published admission criteria for 2009/2010 have been changed.

2. The application for a continuation of the interim relief ordered in paragraph (1) above and/or for a stay of the Adjudicator's decision is to be listed for oral hearing on notice to the Defendant and the Interested Parties on Tuesday, 21st October 2008."

8. On 21 October 2008 the matter came back before Mr Robin Purchas QC, sitting as a deputy High Court judge. He heard from counsel for the school, counsel for the adjudicator and counsel for the interested parties, and ordered that this case be listed for a rolled-up hearing on 27 October 2008 with a time estimate of half a day, the stay of the decision to continue until 27 October 2008, no further order as to publication, the filing and service of the acknowledgement of service be dispensed with and detailed grounds of defence, any skeleton arguments and evidence, if so advised, be filed by noon on 24 October 2008, costs reserved.
9. The hearing took place yesterday and in view of the importance and urgency of the matter I have ensured that judgment is given this morning.

The statutory framework

10. Section 84 of the 1998 Act deals with the code for school admissions. It provides.

"84(1) 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.

(2) The code may impose requirements, and may include guidelines setting out aims, objectives and others matters, in relation to the discharge of their functions under this Chapter by local education authorities and such governing bodies.

(3) It shall be the duty of -

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

(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,

to act in accordance with any relevant provisions of the code. ..."

11. Section 89 of the 1998 Act deals with the procedure for determining admission arrangements. The "admission authority" for the school is the governing body by reason of section 88(1)(b) of the 1998 Act, the school being a foundation school.
12. Section 89, so far as material, states:

"(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. ...

(4) 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 arrangements for the school year in question; and

(b) (except in such cases as may be prescribed) notify the appropriate bodies of those admission arrangements."

13. Finally, section 90, which was modified with effect from 30 June 2008, provides, again so far as material:

"90(1) Where -

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

(b) an appropriate body wishes to make an objection about those arrangements, and

(c) the objection does not fall within any description of objections prescribed for the purposes of this paragraph,

that body may refer the objection to the adjudicator. ...

(3) 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 ...

(5A) Where the adjudicator or the Secretary of State is required by virtue of subsection (3)(a) ... to decide whether to uphold an objection to admission arrangements, he may consider whether it would be appropriate for changes to be made to any aspect of the admission arrangements, whether or not he would be required to do so for the purpose of determining the objection.

(5B) In the case of any objection referred to him under this section, the adjudicator or the Secretary of State (as the case may be) must publish a report containing the following -

(a) his decision on the objection,

(b) any decision he has made on whether it would be appropriate for changes to be made to the admission arrangements, whether in the light of his decision on the objection or otherwise,

(c) if, in relation to a maintained school in England, he considers that any change required ought not to be protected under section 90A for the number of school years prescribed under section 90A(2), that section 90A is not to apply to that change or that the change will be protected only for such lesser number of school years as he may specify, and

(d) his reasons for the decisions mentioned in paragraphs (a) to (c).

(5C) Where the adjudicator or the Secretary of State (as the case may be) decides that it would be appropriate for changes to be made for the admission arrangements, his decision may specify the modifications that are to be made to the arrangements. ...

(8) The decisions of the adjudicator or the Secretary of State mentioned in subsection (5B)(a) and (b) shall, in relation to the admission arrangements in question, be binding on the admission authority and on all persons by whom an objection may be made under subsection (1) or (2); and, if the adjudicator or the Secretary of State has decided that it would be appropriate for changes to be made to the admission arrangements, those arrangements shall forthwith be revised by the admission authority in such a way as to give effect to the decision. ..."

14. Finally Schedule 5 to the 1998 Act provides at paragraph 5(3):

"Subject to any provision made by the regulations, an adjudicator may regulate his own procedure."

15. And at paragraph 6(a):

"When taking any decision an adjudicator shall have regard (so far as relevant) to the obligations which, by virtue of -

(a) Part III of the Sex Discrimination Act 1975, ...

are owed by local education authority or governing body which will be affected by the decision."

The Code

16. The current version of the Code came into force on 28 February 2007. The relevant parts for the purposes of this case are:

(1) paragraphs 2, 5 and 6 of the Introduction. These state:

"2. Admission authorities must ensure that their determined admission arrangements for 2008 comply with the mandatory provisions of this Code. ...

5. Where mandatory requirements are imposed by this Code (or by statutory provisions) it is stated that relevant bodies 'must' comply with the particular requirement or provision. Where this Code prohibits practices or criteria it is stated that the relevant body or bodies 'must not' use the practices or criteria. Where the requirement is imposed by primary or secondary legislation this is indicated.

6. The Code also includes guidelines which the relevant bodies should follow unless they can demonstrate, if challenged, that they are justified in not doing so. Where guidelines refer to good practice the Code will state that the relevant bodies 'should' follow the particular guidelines and where the guidelines refer to practices or criteria normally regarded as poor practice, but where there may be exceptional circumstances when they may be justified, the Code will state that the practices or criteria 'should not' be used."

17. These paragraphs in the Introduction draw a distinction between the mandatory requirements of the Code and the guidelines which relevant bodies should follow unless they can demonstrate, if challenged, that they are justified in not doing so. This approach to the guidelines is reiterated in paragraph 9 of the Introduction and paragraphs 2.16 and 4.3 of the Code itself.
18. The governing body, I should add, is a relevant body for the purposes of the Code.
19. (2) Paragraph 1.67, so far as material, states:

"Admission authorities and governing bodies must ensure that their admission arrangements and other school policies are fair and do not disadvantage, either directly or indirectly, a child from a particular social or racial group, ... Admission authorities and governing bodies should develop and implement admission arrangements, practices and oversubscription criteria that actively promote equity, and thus go further than simply ensuring that unfair practices and criteria are excluded."

20. The Code contains prohibitions on unfair oversubscription criteria (paragraph 2.9). It is not alleged that the school is in breach of any of these specific prohibitions.
21. There then follows a section of the Code headed "Guidelines on setting fair oversubscription criteria," though it is clear from paragraph 2.15 that this section "provides guidelines for, and imposes mandatory requirements on, admission authorities in setting fair oversubscription criteria." The paragraphs in issue in this case are 2.31-2.35, which I shall now read:

"2.31 Admission authorities should take account of the time it will to travel to school, and the availability of public transport in establishing oversubscription criteria.

2.32 Distance between home and school is a clear and objective oversubscription criterion and is often used as a tie breaker in oversubscription criteria. It has the benefit of ensuring that children will not have a disproportionately long journey if access to their nearest school is not possible. Admission authorities should explain clearly how distance from home to the school will be measured including the points at the school and the child's home from which distance is to be measured ... Admission authorities must use a reliable and reasonable system which parents can easily understand. ...

2.33 It is good practice to give priority to children who could reach one school (but not others) by public transport, or to children who would have a disproportionately long journey to another school if denied admission to their nearest school.

2.34 As with all oversubscription criteria admission authorities must take account of factors that might unfairly advantage or disadvantage one child compared to another. If using distance as a criterion, admission authorities should ensure that families who are less able to afford property nearest the school are not excluded.

Catchment areas

2.35 The 1997 Rotherham judgment confirmed that there is nothing unlawful in the principle of admission authorities operating catchment areas as part of their oversubscription criteria and thereby giving priority to local children whose parents have expressed a preferences for the school. However, admission authorities must not guarantee places to parents in a local catchment area, in case the pattern of preferences expressed does not allow this guarantee to be met. In drawing up catchment areas, admission authorities should ensure that they reflect the diversity of the community served by the school, and must not exclude particular housing estates or addresses in a way that might disadvantage particular social groups. A catchment area does not prevent parents expressing a preference for the school if they do not live in the area."

The adjudicator's decision

22. The adjudicator outlined the details of the referral, his jurisdiction and the procedures he had used in coming to his conclusions. Then, in paragraph 7, he set out the London Borough of Ealing's objection to the school's oversubscription criterion number 3, and he continued to deal with that objection and the school's response and to give his conclusions. I believe it is important for me to set those out in full:

"8. The Council argues that the application of this criterion has the effect of preventing the admission of most children living between 0.5 and 1.0 mile from the school, unless they have an older sibling at the School. They believe that, since the area adversely affected in this way is an area of relative social and economic disadvantage, the criterion is inconsistent with the Code for the following reasons:

a) It may encourage social segregation, contrary to paragraph 4.6 of the Code.

b) It may disadvantage children from particular social or racial group, contrary to paragraph 1.67 of the Code.

c) It does not actively promote equity, contrary to paragraph 1.67 of the Code.

d) It fails to take account of factors which might unfairly advantage one child compared with another, contrary to paragraph 2.34 of the Code.

9. In support of their arguments the Council has provided data on the relative socio-economic make-up of the areas of the borough affected by the application of this criterion. In addition they point to the relative cost of housing in the areas to the east and north of the school. Property in the areas benefiting from the disputed criterion is, they argue, significantly more expensive to buy or to rent than property in the area to the north of the School and nearer to Brentside High School.

10. The Council point to what it considers to be widespread confusion and frustration among parents living close to the school, who cannot understand why they are unlikely to be successful given the proximity of their homes to the school.

The School's Responses

11. The key points of the School's responses are as follows.

a) The criterion in its present form was adopted some years ago in order to promote admissions to the neighbouring Brentside High School which, at the time, was significantly under-subscribed with pupils walking past the school on the way to Drayton Manor, with the associated negative consequences for social integration and community cohesion.

b) The school has been willing to revise its admission arrangements to take account of developing circumstances and the requirements of the Code. Its representatives point to recent changes, specifically the discontinuing of a 'feeder school' relationship with a number of primary schools, as evidence of this. It acknowledges that this discontinued aspect of their arrangements did have the indirect effect of advantaging applications from some better off families. They argue that one effect of these changes is to render unreliable some of the data relied upon by the Council.

c) There are flaws in the council's analysis of the respective socio-economic circumstances of the affected communities, and of the social balance of the school's intake. These flaws make it impossible to reach a reliable conclusion on the likely impact of a change to the disputed criterion.

d) A change is likely to have an adverse impact on families living to the east of the School, particularly for boys whose parents do not want them to attend a school associated with the Church of England or who are unsuccessful in applications to this school.

e) The school strives to apply its policies and criteria scrupulously. It has no experience of the parental confusion or misunderstanding to which the Council refers. Its representatives point to the care which is taken to provide parents with information both in writing and at meetings.

f) A change in the criteria could have the effect of imposing disproportionately long journeys from home to school on some children.

g) It is now too late to implement a change in the school's admission arrangements for 2009.

h) Finally and, in the School's view, most importantly the School's intake is balanced and reflects the diversity of the wider community.

Consideration of Factors and Conclusions

12. This case has been robustly argued by the Council and the School. As a result normally positive and productive professional relationships have been strained. It [is] important to note that the Council has expressed admiration for the work of the school, for its inclusive approach and effectiveness. The disagreement arises from genuine but conflicting interpretations of the Code.

13. The over-subscription criterion in question combines two factors: distance from an applicant's home to Drayton Manor High School and distance from that home to any alternative Ealing High School. The parties agree that the application of this criterion has the effect of extending the catchment area (i.e. the area from which the children come to the school) to the south and east whilst reducing it to the north.

14. Evidence has been presented to me which indicates simply but clearly that the area to the north of the school is economically less advantaged than the areas which benefit from the disputed criterion. I refer in particular to the map labelled 'Deprivation of areas where pupils would not be admitted to Drayton Manor' appended to the objection. The proportions of children living in this area entitled to free school meals (FSM) are higher in the area disadvantaged by the contested criterion than in the areas benefiting from it. The school has submitted arguments about the adequacy of the data relating to the intake (or potential intake) and the need for further investigation are not central to this decision. I have concluded that the data provided by the Council are adequate to demonstrate the specific point that the area disadvantaged by the disputed criterion is significantly less advantaged than the area which benefits from it. By implication the School accepts this, as it argues that the inclusion of areas to the south and east contributes positively to the balance of its intake.

15. It is inevitably the case that when a school is over-subscribed the application of its over-subscription criteria will favour some applicants over others. The central issue is whether it does so fairly. The Code sets out a number of principles which provide a framework for such assessments. Some sections go beyond the broad principles and set out specific features of fair and unfair arrangements. For the purposes of this adjudication I need to be satisfied as to the general fairness of the arrangements and to compliance with the relevant specific requirements and expectations of the Code. Central to the argument submitted by the School is its wish to secure equity defined as a socially balanced intake of pupils, reflecting the communities it serves. The Code recognises this as a legitimate policy objective, and the sections on banding in particular set out acceptable approaches to securing this. My concern is that the arrangements adopted by the school to achieve a balanced intake are not compliant with the Code.

16. Paragraph 1.67 requires admissions authorities to ensure that their admission arrangements do not disadvantage, either directly or indirectly, a child from a particular racial or social group. It also states that admission authorities should develop and implement over-subscription criteria which actively promote equity. It is not simply a question of avoiding unfair or unlawful practices. Paragraph 2.34 of the Code requires admission authorities to take account of factors that might unfairly advantage or disadvantage one child as compared with another. The same paragraph states that, where distance is used as a criterion, admission authorities should ensure that families who are less able to afford a property near the school are not excluded. In this case, the criterion does not rely on a simple distance, but on a combination of distances. As a result, the issue of relative proximity to the school is more complex. Nonetheless, I consider that the principle should be applied. I have also been guided by paragraph 2.35 of the Code. This states that in drawing up catchment areas admission authorities should ensure that they reflect the diversity of the community served by the school, and must not exclude particular housing estates or addresses in a way that might disadvantage particular social groups. Although, in this case, the school is not using residence in a defined catchment area as an over-subscription criterion, the contested criterion does have the effect of creating a de facto catchment area. I have therefore borne in mind the clear principle articulated here.

17. I have concluded, in the light of these provisions of the Code and the circumstances summarised above, that the disputed aspect of the School's arrangements fails to comply with the Code. The criterion does not actively promote equity and indirectly discriminates against economically less advantaged families unable to afford housing in the areas benefiting from it. It has the effect of excluding a significant proportion of children living close to the school and for whom the school should be a real option, if that is their parents' preference, in order to promote community cohesion and to enable them to benefit from this excellent school.

18. As to the School's suggestion that a change in the criteria would itself be unfair because it could have the effect of imposing disproportionately long journeys from home to school on some children, I note that there is a good range of secondary schools spread across the Borough which ensures reasonable walking distances from home to local schools for most families. Furthermore, the Borough is well served by public transport. This assists children and young people whose parents have chosen (or been directed to) schools which are not easily accessible on foot. Travel by bus is free of charge to people of school age living in London.

19. On the question of the feasibility of implementing a change at this late stage, I have established in consultation with the Council, which is responsible for the co-ordinated admissions arrangements in the Borough, that there is time to notify parents of this change and to implement it for 2009-10 academic year. It is regrettable that the School was not able to respond more promptly to the initial objection.

20. I am upholding the objection to the arrangements, but I think it reasonable that the school be in a position to develop arrangements which both meet its policy objective of a balanced intake and comply fully with the Code. I am, therefore, not requiring that these arrangements stand for more than one year. The School is free to consult on further revisions to its admission arrangements for 2010-11."

It is dated 16 October 2008 and signed by the Schools Adjudicator Andrew Baxter.

23. In short, the adjudicator found in paragraph 17 of his determination that the criterion in dispute failed to comply with paragraphs 1.67 and 2.34 of the Code and also by paragraph 2.35. It should be noted that he did not find a failure to comply with paragraph 4.6 of the Code, which has had been referred to by the London Borough of Ealing on the basis that the criterion "may encourage social segregation".

The approach of this court to the challenge to the adjudicator's decision

24. It is common ground that there is clear authority on this point under the provisions of the previous Code. In R v Schools Adjudicator, ex parte Metropolitan Borough of Wirral [2000] ELR 620 Latham J (as he then was) cited paragraph 4.9 of the then Code, which said that adjudicators "will look afresh at the issues raised by objections referred to them ..." The learned judge said at paragraph 20 of his judgment:

"But, at the end of the day, as the passage from the Code of Practice which I have also cited makes clear, it is for the schools adjudicator to come to his own decision on the merits of the objection."

25. Earlier however, in paragraph 19, he had said that the provisions of the Act make it plain that the adjudicator has in effect an original jurisdiction. He cited sections 90(1) (3) and (6) of the 1998 Act in support of this. Those same provisions are reflected with no real changes to substance, so far as is relevant to this point, in the amended Act at section 90(1), (3) and (5C).
26. It is correct, as Mr Oldham for the school says, that the new Code does not provide that the adjudicator will "look afresh at the issues raised by the objections referred to them." The Code states:

"4.18. Adjudicators must consider each objection on its individual merits, taking account of the reasons for disagreement at local level and in the light of the legislation and the mandatory provisions and guidelines set out in this Code."

27. Then at paragraph 4.22:

"Adjudicators may uphold, reject or partially uphold objections."

28. Clearly the adjudicator must consider objections, but I see no relevant change in the underlying statutory provisions and I therefore consider that the ruling that the adjudicator exercises an original jurisdiction still holds good.
29. Also relevant to my approach is the decision of Ouseley J in R (Wirral MBC) v Chief Schools Adjudicator [2001] ELR 574, where he said paragraph 43:

"... once unfairness has been found, the fairness of the corrective mechanism to be applied is for the adjudicator."

30. Finally, I accept the submission of counsel for the adjudicator that the court should approach the claimant's challenge with "an appropriate degree of caution", based on the words of Baroness Hale in the context of the Asylum and Immigration Tribunal in the case of AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 and 691, at paragraph 30, where the learned Baroness said:

"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."

31. I should in this section of the judgment also deal with the requirement of the adjudicator to provide reasons, since, as we shall see, this is one of the key challenges to his decision. Mr Oldham cited a number of High Court authorities in this regard, but it seems to me that such cases being very much on their own facts do not particularly assist. The central authority is that of the House of Lords in South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953, paragraph 36, in the speech of Lord Brown of Eaton-under-Heywood, who said:

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration."

The claimant's grounds of challenge

32. These come under three broad headings: first, it is said that the adjudicator's decision was irrational; second, that he failed to provide adequate reasons; and thirdly, that he failed to follow the Code or misapplied the Code.
33. The school submits that the fact that an impoverished area (in this case to the north of the school) is disadvantaged by a criterion does not make that criterion inequitable, since the consequence of any oversubscription criteria is that some areas or communities would be disadvantaged. It further submits that the adjudicator (1) did not consider the effect of the proposed criterion and the inequities it would or might create inadequately or indeed at all, and (2) did not weigh these against what it perceived to be the inequities of the current criterion. It is said by the school that the criterion substituted by the adjudicator would or might create real inequities and that this was argued by the school in its representations to the adjudicator.
34. The particulars of this contention fall into two main categories. Firstly, impoverishment. There is an area of impoverishment to the east/south-east of the school showing the same degree of deprivation, so the school argues, on the material before the adjudicator as the deprivation to the area to the north. The school's argument is that the area to the east/south-east would itself be disadvantaged on the substituted criterion. Thus, they say, the current criterion could not be considered inequitable. Indeed, it is further said that to the south of a school is relatively wealthy area currently served largely by Elthorne Park High School and that the substituted criterion is very likely to result in increased admissions from this area, since the proximity of Elthorne Park will no longer count against applicants from this more affluent area in determining whether they should be given a place at Drayton Manor.
35. Secondly, lack of accessible schools. The school argues that to the east of the school is a large area with limited schools, one of which is an all girls school and another a Church of England High School. Therefore, in that area, it is said there will be disadvantage under the substituted criterion to families with boys or with girls who want mixed education and those who cannot or do not wish to go to a religious school. Further, they say that many families will have to travel significant distances to get to the school (cf. paragraphs 2.31-2.33 of the Code).
36. These points were before the adjudicator and are adverted to by him in paragraphs 11(c) (d) and (f) of his determination, which I have already set out earlier in this judgment. I have also earlier set out his conclusions on these points. In short, he found:

(1) that the evidence before him indicated that the area to the north of the school was economically less advantaged than the areas which benefit from the current criterion, based on the deprivation map submitted by the London Borough of Ealing and the fact that the proportion of children benefiting from free school meals was higher in the northern area. He concluded that these data were adequate to demonstrate this (paragraph 14 of the determination).

(2) That he should reject the school's argument that a change in the current criterion would itself be unfair because it could impose disproportionately long journeys on some children. He said that there is a good range of secondary schools which are spread across the borough, which ensure reasonable walking distances for most families and that the borough is well-served by public transport, travel by bus being free of charge to those of school age (paragraph 18 of the determination).

The analysis of the adjudicator's determination in the light of the school's challenges

37. It seems to me important to focus first on the findings of the adjudicator. These are primarily found in paragraph 17 of his determination. He there concluded that there was a failure to comply with the Code because:

"The criterion does not actively promote equity and indirectly discriminates against economically less advantaged families unable to afford housing in the areas benefiting from it."

38. The failure to promote equity is a guideline imposed by the later part of paragraph 1.67 of the Code. The discrimination against economically less advantaged families unable to afford housing benefiting from the criterion is predominantly based on paragraph 2.34 of the Code, which contains a mandatory requirement to take account of factors that might unfairly advantage or disadvantage one child compared with another, but, on a distance criterion, contains also a guideline that admission authorities should ensure that families who are less able to afford properties nearest the school are not excluded.
39. In paragraph 14 of the determination the adjudicator, after a brief review of the data before him, concluded, as I have mentioned, that "the area disadvantaged by the disputed criterion is significantly less advantaged than the area which benefits from it." Based on the map provided by counsel and the supporting evidence, he was, in my judgment, entitled to find this, especially as he noted that the proportion of children living in the area excluded by the criterion who were entitled to free school meals is higher than in the area benefiting from the present criterion. This is notwithstanding the school's argument that there are deprived areas to the east of the school which benefit from the present, but not from the substituted criterion.
40. This narrow finding of fact on the material that was available to the adjudicator is, however, not an end to the matter, rather it is only the beginning. For there to be a finding of failure to comply with the Code it has to be found that the criterion did not "actively promote equity", (paragraph 1.64) or that the criterion "might unfairly advantage or disadvantage one child ..." (paragraph 2.34). In this regard, the school had made a number of points to the adjudicator, particularly those recorded by him at paragraphs 11(e) and (f) of his determination. If one looks at his conclusions, how did he address those points?
41. The school had submitted to the adjudicator that there was no breach of the Code because the substituted criterion would disadvantage in the east of the borough (i) those who are unable or unwilling to gain admission to a religious school, (ii) families with boys and (iii) families with girls who want mixed education — as there would be only one school for them, namely Acton High School, on the substituted criterion. One looks in vain for any reasons in the determination which address this submission. Therefore anybody reading the conclusions has no idea what, if anything, the adjudicator made of it and why. It is simply not dealt with. In my judgment this is a fundamental error. It is an error which goes to the heart of determining whether the existing criterion actively promotes equity and/or unfairly advantages or disadvantages one child compared with another.
42. It has been argued by Mr Hyams, for Ealing LBC, that the only disadvantage could be that of transport and travel, which the adjudicator addressed in paragraph 18 of his determination. I do not accept this on three bases:

(1) If it be the case that this was the reason, then the adjudicator should have said so. I do not regard it as self-proving, contrary to Mr Hyams' submission.

(2) It is in my judgment not just a question of travel and transport. For a group of people, the numbers of which are not known, there might be no real choice save Acton High School, whereas at present they have the real possibility of a place at Drayton Manor.

(3) No consideration is given by the adjudicator to the chances of that group getting into Acton High School, even if they wish to go there.

43. Mr Hyams, in a supplemental submission received by me at about 10.15 this morning, submits that the exchange relevant to the disadvantaged parents of pupils who live to the east of Drayton Manor High School in a meeting on 15 September 2008 between members of the school's governing body and the adjudicator, shows that the school referred only to distance from home to school as a potential disadvantage. I have looked at the relevant extract from that meeting, and I quote it in full:

"Baxter: what do you think would be the impact on the community of your school if the change which the LA asked for was to be made?

LQU [that is an administration manager at the school]: Without running the data exercise it is very difficult to say what the impact will be. My guess is we will obviously move closer to students who live near to Brentside and to Elthorne, which causes a huge problem for people who live to the East of DMHS [Drayton Manor High School]. It is possible that they will need to travel greater distances and will not have the opportunity of going to their nearest Ealing high school. (my underlining)

Baxter: Have I understood that it will be a particular problem for boys?

LQU: Ellen Wilkinson is a girls' school. Twyford is Church of England school. The only alternative for boys to the east would be Acton High School, which is located on the border of Ealing and Hounslow boroughs. It is possible that this would therefore have an impact on other boroughs. I would assume that parents who are in the east who cannot get into DMHS as their nearest high school would end up sending their children a considerable distance to school.

AJI [that is a governor]: In the past when it was not possible to admit those students in the east for whom Drayton Manor is the nearest high school, some of those pupils were required to travel by bus to Southall schools, passing Drayton Manor en route.

LQU: The only vacancies within the borough were in Southall, four or five miles away. ... "

44. Further in this regard, I refer to the letter dated 22 September 2008 sent by the school's solicitor to the Officer of the Schools Adjudicator, and quote an extract from it under the heading "The rationale of the policy". It reads:

"... The School believes the policy to serve the following extremely useful purposes:-

(i) Encouraging attendance at local schools, which has transport and social cohesion benefits.

(ii) Diminishing some of the unfortunate perceptions that can arise when children 'pass the gates' of one school to go to another.

(iii) Helping young people in the east of the borough whose journeys to school would be particularly affected if this policy were to change, and who might have significant obstacles in attending a suitable local school."

45. It seems to me that the letter of 22 September 2008, and in particular the parts I have underlined, and in any event that which was necessarily inherent in the whole discussion of 15 September 2008 was the lack of local choice in the east, save for Acton High School and the problems in getting into that school, even if a child wished to go there. This was particularly apparent also in the underlined part of the oral response which I have read, namely, "and will not have the opportunity of going to their nearest Ealing high school."
46. Finally, in a letter from the school's solicitor dated 14 October 2008 in response to the adjudicator's draft determination, the following was said:

"The School accepts that the proposed change is likely to have an adverse impact on families living to the east to the School, but not only '... for those whose parents do not want them to attend a school associated with the Church of England' [my emphasis].

The position is quite simple. The schools in the east of the borough consist of one girl's school, one Church of England voluntarily aided school and one mixed community school. Only one of these is an option for children irrespective of sex or religious affiliation. It is not a question of parental willingness. The oversubscription criteria for the voluntarily aided school (Twyford) stipulates that of 180 places, 150 are reserved for those who, with their parents, worship regularly at a Christian place of worship (principally the Church of England).

Ealing is a multi-faith community, and the impact of the change in criteria upon non Christians generally (and non Anglicans in particular) is surely a matter that needs careful consideration if the Adjudicator is to comply with the Code of Practice.

Furthermore, the Adjudicator has made no reference to the fact that girls who do not wish to have a single sex education will be adversely affected by his proposed decision."

47. For those reasons I do not accept the points made in Mr Hyams' supplemental submission.
48. Furthermore, the absence of assessing and properly determining the impact on children to the east who would be excluded by the substituted criterion, affects, in my judgment, the validity of the travel and transport finding at paragraph 18 of the determination, especially in the light of the suggestion (not specifically dealt with by the adjudicator) that this might lead to 4 to 5-mile journeys to Southall.
49. Therefore it follows that the adjudicator's determination must be quashed for failing to provide adequate reasons and/or failing to take into account a central plank in the school's case (cf. paragraphs 43 of the decision of Jackson J (as he then was) in Governing Body of the London Oratory School and others v Schools Adjudicator [2004] EWHC 3014 (Admin)).
50. I turn finally to deal with the two remaining submissions of the school. The first is that the adjudicator's decision should be quashed on the basis that he wrongly regarded children in the less advantaged north of the borough as a "social group" for the purpose of the paragraph 1.67 of the Code. It is true that the adjudicator recites this part of paragraph 1.67 in paragraph 16 of his determination, but I do not accept that he relied on those parts of the paragraph in coming to his conclusion in paragraph 17.
51. It is also argued by the school that the fact that he was guided by paragraph 2.35 of the Code is a reason for quashing his decision. I accept that the adjudicator should not have based his decision on paragraph 2.35 of the Code, this not being a catchment area case, but in my judgment he did not do so. His conclusion was on non-compliance with the second part of paragraph 1.67 and on paragraph 2.34 of the Code, and that conclusion stands or falls on its own merits for the reasons already given and not because of reference to paragraph 2.35 it falls.
52. Secondly, the claimant contends that even if the determination were not to be quashed it is too late to implement it and therefore it should be quashed on this other basis. This does not arise in my judgment. The case was put in this way in the claimant's skeleton:

"As originally pleaded this ground of claim was that it was irrational for the OSA to stipulate that the decision take effect for 2009/2010, given that the period for expressing preferences was due to end on 24 October 2008. Ealing has asserted that it can now extend the time for expressing preferences to 12 November 2008 and so the claim is reformulated as follows. It remains irrational for the OSA to support the enforceability of the determination of 2009/2010 and indeed the OSA would be supporting an unlawful action if it continued to do so. At the time of writing it is believed that Ealing has written to parents of children in primary schools in Ealing to tell parents living in Ealing (not elsewhere) that they have until 12 November to apply or reapply. Since only Ealing parents will have the right to change applications already made or to submit late applications, they will be discrimination against parents who happen to live outside Ealing which is unlawful R v Greenwich LBC ex parte John Paul School [1989] LGR 589. Furthermore, as far as the school is currently aware (enquiries are being made of Ealing)

(1) Ealing has not written to parents of Ealing children in non Ealing schools, whether maintained or independent.

(2) Ealing has not written to parents of non Ealing children in non Ealing schools.

(3) There is no evidence that Ealing has checked that other LEAs who receive applications for Ealing schools from parents living in their areas are able to cope with late and/or revised applications.

(4) There is no evidence that Ealing has consulted (or even informed) the Secretary of State about its unilateral proposal to vary his scheme promulgated pursuant to statute. As to whether even the privileged group to whom Ealing propose to give this right can in fact apply in time, there is the added factor that many will be away for half-term, which ends on Monday 3rd November. Half-term or not, it is hardly fair or realistic to expect them to be able to make a fully informed choice in so little time."

53. Evidence was put in yesterday by the London Borough of Ealing which went a long way to meet those objections. Because of speed of the hearing and problems with counsel dealing with late evidence, the determination on this point is difficult. However, it seems to me, first, that Ealing's objection was well in time. In fact the relevant Regulations allow for objections up to 31 July in any one year. Secondly, it is apparent from the late evidence that the following steps have been taken, and I read from the letter of the London Borough of Ealing to the school's solicitors dated 24 October 2008:

"Ealing's children in non Ealing schools, whether maintained or independent. The authority has written to all independent schools in the Ealing area to advise them of the extension and a copy of the letter is enclosed. As far as children who live in Ealing but who go to school outside the authority's area, the authority has written to their parents. (Inaudible) have been notified that Year 6 children resident in Ealing currently attend an out of borough school and send them a copy of the letter it is sent to all Year 6 children who attend school in Ealing, a copy is enclosed. In addition there will be adverts in the local press this week and in the Evening Standard next week once the court's decision has been made, giving details of extension.

2. Parties of non Ealing children in non Ealing schools. The authority has written to the admissions section of the local authorities immediately neighbouring Ealing, namely Hounslow, Brent, Hammersmith and Fulham, Hillingdon, Harrow and Richmond, enclosing a copy of the letter sent to all parents of Year 6 children attending Ealing schools. The authority has also asked that the neighbouring authorities provide any applicants who have already submitted or are considering submitting applications to Drayton the same extension for making an application and to forward a copy of the letter sent to all parents of Year 6 children attending Ealing schools to those parents. A copy of the letters to neighbouring authorities is enclosed. These parents will also have access to Ealing's website and to the advert in the Evening Standard next week. Non Ealing residents whose Year 6 children attend Ealing state schools also received the letter given to Year 6 children resident in Ealing. ..."

54. Mr Oldham for the school said that he still had concerns because it was not known whether boroughs outside Ealing would extend the time and, it being half-term, the notice of the change would be very short. However, if I were not going to quash the decision on the grounds other than time, I would not be persuaded on the material available to quash it on time alone.
55. In the event, I grant permission to bring judicial review proceedings and I quash the adjudicator's determination.
56. I shall now hear counsel on the point made in Mr Oldham's skeleton that in view of the time frame it should not be remitted for redetermination.
57. MR OLDHAM: My Lord, I am grateful and I am sure we are all grateful to your Lordship for having produced a very full judgment in such a short time.
58. On that issue there is judicial authority on the very point. In the Oratory School case --
59. JUDGE STEWART: I appreciate that. I do not know if it is controversial or not, whether it I should send it back for determination.
60. MISS BROADFOOT: My Lord, we have a difficulty with this as a matter of principle. Can I just say one thing about your Lordship's judgment. I think your Lordship quoted the old version of section 90(3). If I can just provide one correction. I think your Lordship said, section 84(3), sorry, your Lordship said that there was a duty to have regard to the Code, but actually the amended version is to comply with the Code. It may be that your Lordship picked up a quotation from a case.
61. JUDGE STEWART: No, I picked it up from the statutes I was given by previous.... Anyway, I shall amend that.
62. MR OLDHAM: For your Lordship's note the updated Act is at tab 1 of the joint authorities bundle.
63. MISS BROADFOOT: That is right, and it is page 2 of 16 and it is at the top, subsection (3), "it shall be the duty of" and then it is "to act in accordance with any relevant provision." That is the Code and I think your Lordship said "to have regard to" --
64. JUDGE STEWART: I did.
65. MISS BROADFOOT: -- which is incorrect.
66. JUDGE STEWART: This was under the heading of the statutory framework.
67. MISS BROADFOOT: That is right. Your Lordship quoted section 84(1), (a), (b), (c), (d), (e).
68. JUDGE STEWART: (1) is the same, I think, and (2) and (3) are different, so --
69. MISS BROADFOOT: I did not spot the difference in (2). Your Lordship, looking at that again your Lordship is right.
70. JUDGE STEWART: So where I read out previously subsections (2) and (3), they be should be substituted these words:

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

(3) It shall be the duty of -

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

(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,

to act in accordance with any relevant provisions of the code."

So substitute what I said before for those two subsections.

71. Thank you very much. I do not think it makes any difference to the basis for the reasoning.
72. MISS BROADFOOT: No. My Lord, in relation to what your Lordship should do now, I am aware of the London School authority, where the court simply quashed the decision and then there was a decision about what the effect of that was. It seems to me, in my respectful submission, that there is a difficulty if your Lordship simply quashes the decision because there is then an outstanding unresolved objection, and I have been unable to work out whether, if your Lordship does not make the order that it be remitted, that the adjudicator effectively remains functus or whether in fact, even if your Lordship does not remit it, the adjudicator still has a statutory obligation to determine the outstanding objection. In my respectful submission, the position properly viewed is that if your Lordship quashes the decision then there is an outstanding objection which needs to be dealt with, and in my respectful submission your Lordship should leave it at that and not assume that the adjudicator will take one course or another course about how he then approaches it.
73. JUDGE STEWART: I should just quash the decision and make no further order; am I understanding your submission correctly?
74. MISS BROADFOOT: I think that is probably right. Quash the decision, but our position is that there will still be this outstanding objection that needs to be dealt with. I have not had the opportunity to speak to Mr Oldham about his views on whether there is a difference, whether your Lordship technically remits it or not, but if there is no decision --
75. JUDGE STEWART: Sorry, did you say you have had a chance?
76. MISS BROADFOOT: No, I have not. I do not know what Mr Oldham wants to say about that.
77. JUDGE STEWART: Do you want me to give you an opportunity to consider this matter?
78. MR HYAMS: My Lord, if I may. Your Lordship has concluded that had there were not sufficient reasons for one aspect of the adjudicator's decision and the jurisprudence on the effect of a failure to give sufficient reasons is slightly diverse. Some cases are to the effect that it is necessary in a situation such as this to quash the decision and some cases to the effect that it is possible to remit the matter for the decision-maker to deal with the matter and then give further reasons. I personally would like a little time to have a look at that before I address your Lordship on that.
79. MR OLDHAM: My Lord, I am a little bit surprised that my learned friend really needs more time to visit the matter, but if your Lordship felt that that was the right thing to do then I would not stand in my learned friend's way. I am really in your Lordship's hands. Of course, I am more than happy to talk to my learned friends. My position, I should make is absolutely clear, will be that there should be a quashing and that would be in the expectation that the adjudicator would leave the matter, for submissions I can make. If the adjudicator was really concerned about the issue of there being an outstanding objection, two points: (1) that was the same situation in the Oratory School; (2) if he still feels that, subject to any order your Lordship makes he has to do something, then perhaps by consent he could be injuncted. It is entirely a matter for my learned friend, but I do not want to burden your Lordship unnecessarily with submissions if I can work it out with my learned friends.
80. JUDGE STEWART: No. I have already said in the absence of any specific submission that I will quash, but if there is a further submission that I ought to take some further action then I will listen to that from Mr Hyams. I think the matter is so important and we have dealt with it with goodwill on all sides pretty swiftly. I think it would be shame to fall into error for the reason of not giving a bit of time.
81. MR OLDHAM: Certainly, my Lord.
82. JUDGE STEWART: There may be other reasons to fall into error, but I do not want to do it for that reason.
83. MR OLDHAM: Of course, my Lord. I do not want to stand in the way of cooperation for any reason.
84. JUDGE STEWART: How long am I being asked for?
85. MR HYAMS: My Lord, I am not asking for very long. I think I can look at this point in about 20 minutes.
86. JUDGE STEWART: Shall I come back at 12.30?
87. MR HYAMS: I would be very happy with that.
88. JUDGE STEWART: Would that help you?
89. MISS BROADFOOT: Yes, my Lord.
90. JUDGE STEWART: We should, one way or another, although I may have to do a short judgment, we certainly should finish the argument by 1.00.
91. MR OLDHAM: Indeed, my Lord.
92. JUDGE STEWART: I think I need to take away with me the authority, which is number...?
93. MR OLDHAM: It is number 7, my Lord, and the section your Lordship will be interested in in particular is paragraph 61 and following, which is the last photocopied page of the judgment, in particular from paragraph 63 onwards.
94. JUDGE STEWART: I will come back at --
95. MISS BROADFOOT: My Lord, I am sorry, I have just had confirmation that we are happy for your Lordship just to quash it and we are happy with that and to leave it at that. My Lord, I have managed to speak to those behind me.
96. JUDGE STEWART: I am not sure if they are happy that I just leave it.
97. MR OLDHAM: I am not sure what my learned friend is saying, because if it is simply quashed then I am not sure whether my learned friend is undertaking that the adjudicator will not seek to redetermine the matter.
98. MISS BROADFOOT: I am not making any undertakings.
99. JUDGE STEWART: I will give you until 12.30.
100. MISS BROADFOOT: I am very grateful.
(A Short Adjournment)
101. MR OLDHAM: Your Lordship is quite right that the time allowed us to reach agreement. We are very grateful.
102. My Lord, on the issue of relief further to a quashing order, my learned friend for the adjudicator and I are agreed, with Mr Hyams being neutral I believe. We will see how long that lasts, my Lord, but for the moment neutral. There should be an order in these terms. Your Lordship should quash the determine and remit the matter to the adjudicator, with a direction that the objections not be upheld. So that satisfied my learned friend's understandable concern.
103. My Lord, for your Lordship to note, if your Lordship is interested, that seems to me to be compliant with CPR 54.19(2), which I can read, which as you know says:

"The court may -

(a)

(i) remit the matter to the decision-maker; and

(ii)direct it to reconsider the matter and reach a decision in accordance with the judgment of the court ..."

So if part of your Lordship's order is a direction to --

104. JUDGE STEWART: If that is a consensual position, as a result of the primary findings I have made, then so be it.
105. MR OLDHAM: I am most grateful.
106. JUDGE STEWART: I am aware of the jurisdiction and I checked in this book as well.
107. MR OLDHAM: I am apologise for burdening your Lordship with it.
108. My Lord, I think the other only issue is costs and again I think there is a measure of agreement, if not entire agreement. My learned friend for the adjudicator agrees to pay our costs of the entire action, to be assessed if not agreed.
109. JUDGE STEWART: So there is no summary assessment?
110. MR OLDHAM: There is no summary assessment. We do not have a schedule of costs, I am afraid.
111. JUDGE STEWART: I suppose actually it has taken more than one day in any event.
112. MR OLDHAM: It has, my Lord, that is right. My Lord, of course I and my learned friends will draft an order which we can send up to your Lordship through the normal channels. I do not know think there are any other matters, subject to what my learned friends say.
113. MISS BROADFOOT: Could we ask for an expedited transcript? I think your Lordship has to make an order for the transcript to be available more quickly than it otherwise would be.
114. JUDGE STEWART: And the reason for that is?
115. MISS BROADFOOT: My Lord, because the matter has come on very urgently and your Lordship has given a very full judgment and although we have taken a note, there are clearly going to be matters that need to be taken back to my clients for consideration as to how we possibly look at other cases that are before them at the moment.
116. JUDGE STEWART: Right. If I have the power I will exercise it, because I think it is very important and urgent.
117. MISS BROADFOOT: I am grateful.
118. MR OLDHAM: Nothing else, my Lord.
119. JUDGE STEWART: That is it. Thank you very much.
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