England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		31st July 2009

Mr Justice Simon:

Preliminary

1. This is an issue of the hearing of an application for permission to bring judicial review proceedings in relation to a decision of the defendant which is contained in a letter dated 11 May 2009. It comes before the court on the direction of His Honour Judge Pelling QC who, on 8 July, ordered a rolled up hearing to deal with the permission application and, if permission were granted, with the substantive issues. I grant permission and this judgment therefore deals with the issues raised in the claim.

Introduction

2. The claimant is the father of G. He wished his daughter to go to St Edwards College in Liverpool, which is the Interested Party in this claim ("the College"). In filling in the College Application Form he relied on the criterion for priority 2 of the College's published admission arrangements, 'social and medical needs', on the basis that G showed symptoms of anxiety; and he produced evidence from his general practitioner in support of the application. The College is highly popular and oversubscribed, and his application on behalf of his daughter was not accepted. He exercised his statutory right to appeal the decision of the defendant ("the IAP") and pursued a number of grounds, including a claim that the criterion for priority 2 had been misapplied. He also produced a letter from G's primary school head teacher in support of her inclusion within the criterion 2. The claimant lost that appeal and brings the present claim on the basis that the IAP erred in rejecting this appeal. In his outline submission Mr McKendrick, who appears for the claimant, raised the possibility of a Mandatory Order from the court directing the admission of G to the college in the new school year, but in the course of his submissions he confined the relief that he sought to a rehearing before a differently constituted IAP.

Chronology

3. On 4 November 2008 the claimant expressed his statutory preference for G to attend the College by filling in an application form for admission in year 7 (September 2009). He knew that the College was over subscribed and, having considered the College's Admission Arrangements, felt that his daughter should be considered under priority 2, because of her anxiety and social need to be with her friends who were also applying for admission to the College. He was also aware of priority 6, which gave priority to committed Roman Catholic applicants, which his family were.
4. The Admission Arrangements for the school were in the following terms, so far as material:

"Oversubscription priority.

In the event of over subscription the following priorities will be applied:

Priority 1: Girls and boys in public care (looked after children);

Priority 2: Girls and boys with medical and social reasons supported by professional documentary evidence (from either a registered health professional such as a doctor or social worker) which should set out the particular reason why the College is the most suitable school and the difficulties that would be caused if the child had to attend another school. The maximum number of girls and boys to be admitted under this priority would be ten."

5. Priority 3 to 5 (choristers at the Metropolitan Cathedral, a limited number of specialist musicians and children with siblings at the school) were not categories which applied to G. Priority 6 was "committed Roman Catholic applicants as determined using the pointing system approved by the Governing Body."
6. Finally there was a heading 'Tie-Break':

"In the event of oversubscription, within every priority the tie break will be the proximity of the child's home to the school as measured by the shortest walking distance from the college's main entrance, with those living nearest being afforded the highest priority."

7. Included with the claimant's application form, with a cross-reference under the heading "Medical or Social Needs", was a letter from G's general practitioner in these terms:

"The above named patient is receiving treatment and support for anxiousness. I support her application for a placement at St Edwards Senior School. She is presently attending St Edwards Junior School. Moving to the neighbouring senior school will cause the least disruption for her and the least risk of deteriorating symptoms and anxiety."

There was also material in support of her being considered under priority 6.

8. In a letter dated 1 March 2009, Liverpool City Council, who coordinated admission for the city schools, wrote to the claimant informing him that G had been allocated a place at another school. No reason was given for G not having been awarded a place at the college according to his preference, but he was informed of his right to appeal the decision. He did so in the form of a letter addressed to the IAP dated 16 March. The letter runs to six pages and raises a number of points, not all of which were directly relevant to the appeal. Materially, for present purposes, his first ground of the appeal raised the issue of whether the College had complied with its own Admission Arrangements, whose terms I will come to later in this judgment.

Under the heading "Medical" the claimant wrote:

"It is very important that [G] receives positive reinforcement. We have previously had episodes where she has been upset for the most irrational reasons and we have had great difficulty in getting her into school. It reached such a pitch that we had to seek medical advice. We have had reports from teachers that she is timid and lacking in confidence. As can be seen from the reports disclosed (further reports to follow), she is a shy, timid child, who even now is feeling excluded, rejected and not wanted. She perceives the present circumstances as a rejection from her school of choice where her peers had been offered a placement. The doctor, counsellor and headmistress reports clearly demonstrate that she would benefit from remaining in what [G] perceives as the same school environment and same social circle and peer group."

9. Under the heading "Social":

"It is very important that [G] has familiarity with the surroundings. With most of her class, her friends and peer group attending the school, to exclude her would be detrimental and prejudicial to her social needs as detailed above. She would benefit from remaining in what [G] perceives as the same school environment, the same social circle and peer group. We are determined that [G] does not suffer a further crisis of confidence due to any positive discrimination."

10. The IAP received from the College a summary of the application of the Oversubscription Criteria for Admissions in September 2009. So far as priority 2 was concerned:

"8 places were allocated to boys and girls with mental or social reasons (places were allocated based on the reasons why the College is the most suitable school for the child and the difficulties that would be caused if a child had to attend another school. These applications were supported by professional documentary evidence from either a registered health professional such as a doctor or social worker)."

As appears later, the claimant criticises this summary as being insufficient and inaccurate.

11. The appeal was heard on 7 May 2009 before the IAP which, as its name suggests, was an independent panel. They were assisted by a legally qualified clerk. There is a note of the hearing which shows that a number of issues were raised by the claimant with Mr John Waszek, the College principal. Three points should be noted.
12. First, as already noted, the claimant was able to place before the IAP a letter from the head teacher of G's primary school, which referred to her anxiety, the fact that she is receiving counselling and the importance of the support of her closest friends, who had all been offered places at the school.
13. Secondly, Mr Waszek told the IAP that, when considering applicants under priority 2, the School's Admissions Committee "considers the severity of the child's conditions and difficulties associated with that". In paragraph 13 of a witness statement made in these proceedings and which I will also come to later in this judgment, Mr Waszek referred to a test of "identifiable or significant social or medical needs". This was referred to by Mr McKendrick as a "heightened test" which he contrasted with the stated criteria of priority 2. Mr Waszek agreed that the general practitioner's letter complied with the stated requirements of priority 2, but said "judgments had to be made". Mr Waszek confirmed that G was considered under priority 2.
14. Thirdly, the claimant was discouraged from asking Mr Waszek about what had occurred before the School Admissions Committee on the basis that the hearing was concerned with whether the IAP thought G should have been allocated a place.
15. On 11 May the claimant received a letter with the disappointing news that the IAP had rejected his appeal. It is this letter which is the subject of the challenge in these proceedings. The letter runs to just over three pages and contains a fairly full explanation of why the IAP came to refuse the appeal. It is necessary to quote briefly from three passages from the letter. First:

"The Appeal Panel was informed that the Published Admission Number for your child's year group at the school as 150 and that this number has already been exceeded. In addition, the Panel noted that the total numbers in the school were 1,217 against a net capacity assessment of 1,077. The Panel were satisfied that to exceed the Published Admission Number and admit a further child into your child's year group at the school would prejudice the provision of efficient education and/or the efficient use of resources in accordance with section 86 of the School Standards and Framework Act 1988."

16. Secondly:

"The Panel then considered whether the governing body at St Edwards College had properly implemented its own published admission arrangements when allocating places in year 7 to the school in September 2009 and decided that the admission arrangements had indeed been properly implemented. In reaching this decision the Panel noted that each of the 150 pupils allocated a place in year 7 in September 2009 ranked higher within the school's published oversubscription criteria than your child. They considered the points allocated on the basis of the religious proforma and found that they were satisfied that they had been correctly allocated. They considered the school admission arrangements and they complied with the School Admissions Code and the School Standards and Framework Act 1998. For the avoidance of doubt the Panel were satisfied that the Admission Criteria were fair and objective and clear providing for home to be the tie break in all criteria."

17. The Panel then set out the various points raised by the claimant in support of the appeal before concluding:

"However, the Panel did not consider that the evidence adduced supported grounds for your child to be admitted to St Edwards College under criterion 2. The criterion provides that 'the particular reasons why the College is the most suitable school and the difficulties that would be caused if the child had to attend another school'. The Panel felt that the evidence given did not meet that test."

18. After some pre-action correspondence between the parties, the claim form was issued on 8 July and a direction given that the hearing take place promptly. Since the issue of the claim the IAP has produced a witness statement from Mr Waszek. In it he draws attention to evidence that the College is a high-performing school which has been categorised as 'outstanding' in 3 recent Ofsted reports. There are clearly good reasons why the school is oversubscribed, with 571 applications for 150 places for admission in year 7, (children aged 11) for September 2009.
19. In paragraph 10 of his witness statement he acknowledges that most applications will inevitably be unsuccessful and the importance of treating applications sensitively and professionally. In paragraph 13 he says that the School Admissions Committee is carefully selected so as to provide experience and expertise in the making of decisions, and includes a retired Head Teacher, a Magistrate of 22 years and a Sister of the Royal Liverpool University Hospital with 25 years of medical experience.
20. In paragraph 20 he refers to a list of 27 children who were considered under the priority 2 criteria with a brief explanation of the reasons why the children were on the list. The list shows a number of matters which would be material to the exercise of a judgment in relation to the priority 2 criteria: for example, two children whose mothers had recently died, one whose younger sister had died, one whose brother had died, one who had hydrocephalus, two with heart conditions and others with named medical syndromes.
21. In paragraph 21 of his witness statement he said this:

"Having considered these cases the governors decided to offer eight places to the children in this group (inaudible). The governors believe that there was a significant material difference between these eight cases and the remaining nineteen. For the number of applicants in this significant category it would seem (inaudible) applying. I emphasise that the children to whom (inaudible) was not a simple judgment as to the severity of the child's medical and social needs but using the expertise of the panel the extent to which the College is the most suitable for the difficulties that would be caused to the child by moving to another school."

22. Exhibit JW3 is a list of the eight children who were offered places under criteria 2. Both Mr McKendrick and Mr Wood QC (who appeared for the College) found support for their arguments from this document. Mr McKendrick pointed out that for two of the children, child 20 and child 27, there had been no 'documentary professional evidence from either a registered health professional such as a doctor or social worker' as, he submitted, was a requirement of the criteria for priority 2. This is correct in point of fact. Child 20 was a child whose mother had died from cancer in February 2008 following a long period of illness. The documentary evidence came from the primary school head teacher. Child 27 was a child who was a victim of severe bullying and needed to be separated from bullies as well as requiring strong pastoral support. Again documentary evidence came from the primary school Head teacher.
23. Mr Wood submitted that JW3 showed, at the very least, that it was open to those considering this material to conclude that the eight children fully met the test set out in the criterion for priority 2.

The legal framework

24. The primary statutory provisions which apply in this case are the School Standards and Framework Act 1998 (the Act which regulates admission to schools) and The Education (Admissions Appeals Arrangements) (England) Regulations 2002/2899 as amended ("the Regulations"). In summary, Part 3 of the Act is headed 'School Admissions'. Under section 84(1) of the Act, the Secretary of State for Children, Schools and Families has a power to issue a code for school admissions. Under section 84(3) governing bodies and appeal panels have a duty to act in accordance with any relevant provisions of the code. In accordance with the power conferred by section 84(1) the Secretary of State published a Schools Admissions Code and a Schools Admissions Appeal Code ("the Codes"). It is now common ground that both codes came into force on 10 February 2009, and that consequently the IAP should have applied the 2009 School Admissions Appeal Code.
25. Under section 86(1) the Local Education Authorities must make arrangements to permit parents to express a preference for the school they wish their child to be educated. Under the terms of section 86(2)and 86(3)(a), the Admission Authority, the Governing Body of the school in this case (see section 88(1)(b)) must comply with this preference unless among other things it would "prejudice the provision of efficient education or the efficient use of resources." This is plainly a restriction on the right to choose a school if it would cause oversubscription.
26. Section 88(2) defines a school's Admission Arrangements as being "the arrangements for the admission of pupils to the school, including the school's admission policy". Section 94(2) provides for the making of arrangements for parents to appeal a decision not to admit their child.
27. Turning then to the Regulations, paragraph 6(1) of the Regulations provides that the matters to take into account when considering an appeal shall include:

"(a) any preference expressed by the appellant and

(b) the school's admission arrangements."

28. Paragraph 6(2) of the Regulations is in the following terms:

"Consideration of the matter mentioned in paragraph (1)(b) may include consideration of whether those arrangements comply with any mandatory requirements of --

(i) a School Admissions Code, or

(ii) Part 3 of the 1998 Act."

29. Finally turning to the Codes, paragraph 2 of the Introduction to the 2009 School Admissions Code states that the Code must be complied with. Paragraphs 2.27 to 2.30 deal with a criterion described as "Social and Medical Need". Paragraph 2.29 reads:

"If using this criterion, admission authorities must give a clear explanation of what supporting evidence will be required – for example a letter from a registered health professional such as a doctor or social worker – and how this will be assessed objectively. Admission authorities' decisions must be consistent and based on this objective evidence….

Admission authorities must not give higher priority to children under this criterion if the required documents have not been produced."

30. The 2009 School Admission Appeal Code provides reminds its readers in paragraph 3 of the Introduction that the Code must be complied with.
31. Paragraph 2.20A requires the Admission Authority to supply an IAP with a written statement summarising how places at the school were allocated and how the admission arrangements for the school were applied to the appellant's application.
32. Paragraph 2.38 provides that the panel chair must ensure that the letter notifying an IAP decision:

"d) gives clear and detailed reasons for the panel's decision, addressing the key questions that the panel considered.

33. Paragraph 3.1 to 3.7 set out the process by which decisions should be reached by an IAP with a two-stage approach. The first stage establishing the facts, and the second stage balancing the argument.
34. At paragraph 3.2, the Appeals Code provides:

"The panel must consider the following issues.

a) Whether the relevant oversubscription criteria for the school and coordinated admission arrangements were correctly and impartially applied to the child concerned. If not, whether the child would have been offered a place had the arrangements been properly applied or did not contravene mandatory provisions in the School Admissions Code or [the Act]."

The Claim

35. There are 3 grounds of challenge to the decision of the IAP:

(1) The IAP misdirected itself by failing to act in accordance with the Codes ("the Codes point").

(2) The IAP misdirected itself and/or failed to take into account relevant factors and/or acted irrationally, unreasonably and/or in breach of the claimant's legitimate expectations in the application of the Criterion for Priority 2 of the College's Admission Arrangement ("the Criterion point").

(3) The IAP's decision is unlawful for lack of adequate reasons ("the Reasons point").

For reasons which I will come to there is, at least to some extent, an overlap in these points.

The Codes Point

36. There was an initial issue as to whether the 2007 or 2009 Code applied to the IAP's decision. This is no longer a matter of dispute, since it is now common ground that the 2009 code came into force and applied from 10 Feb 2009, see also the recent decision of Blake J in R (Buckinghamshire County Council) v The IAP for Buckinghamshire and others [2009] EWHC 1679 (Admin) [29-35]. It is clear the IAP was bound to apply the 2009 School Admission Appeal Code.
37. Mr McKendrick's submission was that the IAP failed to recognise that the Criterion for priority 2 in the Admission Arrangements was not in accordance with paragraph 2.29 of the Admissions Code: a) there was no clear explanation of what supporting evidence was required, and b) there was no explanation of how the evidence would be objectively assessed. He submitted that anyone reading the Criterion for Priority 2 would assume (as the claimant had) that, provided there was documentary evidence (from in this case a GP) which set out medical reasons why the College was the most suitable school and the difficulties caused if the child had to attend another school, then, if there was oversubscription under this priority, it would be settled by the distance form College tie-break. He also submitted that, in order to determine whether this criterion had been consistently applied by the Admission Authority, the IAP was bound to look at every candidate which had been accepted under the Medical & Social Priority category.
38. It seems to me that there are a number of objections to this approach.
39. First, and dealing with the last point first, neither the Codes not common sense calls for the IAP to consider all 27 applications with a view to determine whether the criterion had been applied consistently. There will be difficulties enough in considering the appeals before them, without being required (other than where a very clear and specific issue arises and where it may be relevant) to consider and evaluate other applications in relation to a particular priority. Other than in such a case, it will not assist a parent to say that another child should not have been accepted under a particular priority.
40. Secondly, there was no ambiguity in what the criterion required: namely, professional documentary evidence supporting a claim based on medical or social reasons. The use of the word 'professional' focuses on the requirement of independence and expertise; but does not exclude documentary evidence from, for example, a head teacher in a case of bullying. The submission that health professionals or social workers are exclusive categories seems to me to be unjustified.
41. Thirdly, nor am I persuaded that there was an objectionable failure to explain how the evidence would be assessed. I accept Mr Wood's submission that, where one is dealing with a high priority, it is properly to be assumed that the evidence would be objectively assessed on the basis of the 'reasons' why the medical or social factors rendered the College to be the most suitable school and the difficulties that would be caused if the child had to go to another school. It is implicit from this statement that the gravity of the social or medical reasons when applied to the suitability criteria was obvious and did not need spelling out. Mr Waczek's explanation to the IAP that the Admissions Authority "considers the severity of the child's conditions and difficulties associated with that" was not a different or 'heightened test', it was the application of a test clearly implicit from the stated criteria, and must necessarily be robust so as to avoid the dangers which are adverted to in paragraphs 2.27-2.30 in the School Admission Code (under the heading "Social or Medical Need"), and so as to avoid prejudice to other children in the lower priority categories. It is clear that judgments may have to be made. If the claimant's case were correct (provided the threshold for Social or Medical reasons is passed) no judgment should be made. In my view that is plainly wrong; and contrary to the Policy set out in the Admission Code.
42. In my judgment the IAP were justified in coming to the conclusion set out in the Decision Letter of 11 May that the School Admission Arrangements were compliant with the Act and the Admission Code.

The Criterion Point

43. Mr McKendrick submitted that the IAP conclusion for G did not satisfy the criterion for priority 2 was unreasonable or irrational in the sense used in cases following the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. He submitted first, that G fell firmly within the criteria of priority 2. The general practitioner and head teacher confirmed G had high levels of anxiety and had received treatment for this, the general practitioner supported her application for the College, moving in to the College would cause the least disruption and the least risk of deteriorating symptoms of anxiety, the support of her peer group was "vital", all her closest friends had been allocated to the College, transferring schools "without the support of any of her peer group is for her unthinkable."
44. Secondly, the advice not to consider the basis on which her claim to priority was rejected by the Admission Authority was an error of law, since paragraph 3.2 of the School Admission Appeal Code requires at the first of the two-stage process that the IAP consider whether the oversubscription criterion was correctly and impartially applied.
45. Third, and linked to the second point, the IAP erred in not applying its mind to the unlawfulness of the Criteria for Priority 2 and whether G should have been offered a place. In this context, he relied on the observations of Blake J in the Buckingham County Council case, to which I have already referred, at paragraph 19.
46. Fourthly, if they had done so, they would and should have offered a place to G since they should have noted that only eight out of possible ten places available under Priority 2 had been filled.
47. There was an unfairness and a confounding of legitimate expectation in that the claimant had properly assumed that the letters in support of his child's application would have been sufficient, and that he should in all the circumstances have been given an opportunity to show that her needs were such that she satisfied the "heightened test"
48. Some of these issues I have touched on when considering the first ground. However, in my view there is a short answer to some of these submissions. It is what Mr Wood referred to as the 'materiality issue' and which he contends is a complete answer to the claim. Paragraph 6 (2) of the Regulations provides that the IAP may consider whether the School Arrangements comply with the School Admission Code or the Act. However, they are not bound to. This is doubtless to avoid a hearing which is overburdened with legal argument rather than the factual notes of an appeal. As Mr Wood submitted, and as is clear from the Buckinghamshire County Council case, some breaches of the mandatory requirements are properly matters which are considered in other context, for example by the School's Adjudicator. This approach, confining appeals to the merits of the particular case, is also reflected in the terms of the Appeal Code. As part of the first stage of the two stage process, the IAP was bound to consider whether the Admission Arrangements were correctly and impartially applied. However paragraph 3.2(a) of the Appeals Code goes on to provide that if not, the IAP must consider:

"whether the child would have been offered a place had the arrangements been properly applied or did not contravene the mandatory provisions in the Admissions Code or the Act."

49. There is nothing in this claim to suggest that the answer to this question should have been: yes. Nor am I persuaded by the argument there was anything misleading in the stated criteria for priority or anything which could lead to a legitimate expectation of the sort advanced on behalf of the claimant. Mr Waszek rightly accepted that G qualified for consideration under priority 2; but there was no proper basis for treating that to be the end of the matter, subject to the tie-break. The medical and social reasons (and thus the need) were necessarily to be taken into account if priority 2 was to be considered rationally. The fact that only eight out of ten places were awarded under priority 2 suggests a robust approach to the criteria it did not entitle G to be awarded one of the two places if medical and social reasons did not otherwise justify it.

The reasons point

50. Mr McKendrick submitted by reference to paragraph 2.38 of the Appeals Code that the IAP was bound, but failed, to provide "clear and detailed reasons" addressing key questions which it considered and to explain why any issues of fact or law were decided.
51. In my view this criticism too is unfounded. The decisions of Appeal Panels must be read for what they are: the views of an independent expert panel dealing with sensitive and important decisions for the child concerned. It will not avail a claimant to pick over decision letters for inconsistencies, omissions or infelicities of expression, with a view to complaints about the insufficiency of reasons. The most that can be said is that the views of the IAP were expressed too much as conclusions rather than reasons but the basis for the decision is clear and unimpeachable. The evidence was not sufficient to satisfy the criteria for priority 2.
52. Finally, it seems to me sensible, having looked at the detailed issues, to consider whether the court is nevertheless left with the impression that something has gone wrong in the appeal process. Despite the clear and forceful submissions of Mr McKendrick in support of the claim, I am clear that the answer to this question is: no. Accordingly, the claim for judicial review must be dismissed.