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 WC2A 2LL
		23 March 2012

1. THE DEPUTY JUDGE: This is an application by the Council of the London Borough of Lambeth for permission to claim judicial review of a decision of the Lambeth Independent Appeals Panel given in a letter dated 15 December 2011. The Panel allowed an appeal against the Council's decision not to admit AL, the daughter of the first interested party, CC, to the reception class of Paxton Primary School in September 2011 for the school year 2011/12.
2. AL was born on 22 March 2007. Her mother suffers from problems with her thyroid. CC finds that she is unable to walk long distances. Understandably, given AL's age, she wants to accompany AL to, and from, school. She wants AL to attend Paxton Primary School as its reception class is now the nearest to her home and as she considers that the bus journeys and walking involved in going to other schools would not be practicable for her.
3. On 17 February 2012 Kenneth Parker J ordered that the council's application for permission to claim judicial review should be listed for an oral hearing with the substantive hearing of the claim to follow immediately thereafter if permission was granted. He also stayed the Panel's Decision until the determination of the Council's application for permission or further order, observing that, on material available to him, it was wholly unclear on what purported legitimate basis the Panel had allowed CC's appeal.
4. In response to the Council's pre-action protocol letter, the panel agreed that its decision should be quashed. The Panel considered that CC's appeal should be used for a fresh appeal hearing before a new panel to determine the appeal on the merits. CC now also accepts that the Panel's decision was unlawful but on her behalf Mr Robin Jacobs submits that the Council should not be granted permission, or if granted permission, that the Council should not be granted any relief principally on five grounds. These are:

"1) The council's failure to act promptly following the IAP's decision.

2) The council's earlier general delay and maladministration dealing with CC's application for a primary school place for AL.

3) The Council's failure to pursue or adequately pursue, any form of ADR.

4) Acquiescence by the Council in the decision complained of.

5) The effects on CC and AL if granted relief."

5. As a matter of convenience, I have heard full argument on the questions whether or not the Council should be granted permission or any relief together.

The legal framework governing school admissions and appeals

6. Paxton Primary School is a community school maintained by the Council. The Council is its admission authority for the purpose of Chapter I of Part III of the School Standards and Framework Act 1998 ("the 1998 Act"). In discharging its functions under this chapter the Council must act in accordance with the Code of School Admissions issued by the Secretary of State: see section 84 of the 1998 Act.
7. As the admission authority the Council is required before the beginning of each school year to determine the admission arrangements that are to apply for that year. The arrangements for the schools with which this case is concerned may not authorise any interview where the interview is to be taken into account to any extent in determining whether the applicant is to be admitted: see section 88A of the 1998 Act.
8. The Council is responsible for making arrangements for enabling parents of children in its area to express a preference as to the school at which they may wish education to be provided for their child and give reasons for that preference. Since some schools will have more applications for places for children than places are available for them, the admission arrangements for any school need to contain the criteria to be used to allocate places. The Code of Practice envisages that admission authorities may choose to give higher priority to children for social and medical reasons. It states:

"2.28 ... it is acceptable to give higher priority to children or families where there is a social or medical need (for example where one or both parents of the child has a disability that may make travel to school further away more difficult).

2.29 If using this criterion, the admission authorities must give a clear explanation 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 objective evidence. The supporting evidence should set out the particular reasons why the school in question is the most suitable and the difficulties that will be caused if the child had to attend another school. Admission authorities must not give higher priority to children under this criterion if the required documents have not been produced."

9. The Council's admission criteria accord priority to children in the following order:

(i) Looked after children;

(ii) Siblings;

(iii) Children with exceptional medical or social needs; and.

(iv) Distance between the child's home and the school measured in a straight line.

The third category applies to:

"Children with a professionally supported medical or social need whose application identifies a particular school that is especially able to meet that need. The decision to prioritise children on these grounds will be determined by Lambeth Admissions Authority's MEDSOC panel which is comprised of senior management and senior school staff. Letters from an appropriate professional must support these applications although these will not always be conclusive."

10. As an admission authority the Council is required to comply with any preference expressed in accordance with its admission arrangements unless, for example, compliance would prejudice the provision of efficient education or the efficient use of resources: see section 86(2) and (3)(a) of the 1998 Act. Such prejudice may arise by reason of measures required to be taken by the Council with a view to securing that the limit on the maximum number of pupils in an infant class in an ordinary teaching session conducted by a single teacher does not exceed 30 (disregarding what are referred to in the relevant regulations as accepted pupils): see sections 1 and 88(4) of the 1988 Act, and the Education (Infant Class Sizes) (England) Regulations 1998.
11. The Code of School Admissions also states at paragraph 1.34 that:

"All admission authorities must decide on applications for school places in accordance with their published arrangements."

12. An admission authority is also required to make arrangements for enabling a parent of a child to appeal to an appeal panel against any decision made by it refusing a child admission to the school: see section 94 of the 1998 Act. It is required to send parents particulars of the arrangements for making an appeal and the contact details for the Council: see paragraph 2 of schedule 2 to Education (Admission Appeal Arrangements) (England) Regulations 2002 ("the 2002 Regulations"). An appeal is made by notice in writing setting out the grounds on which it is made.
13. Where an appeal is made against a decision refusing a place made on the ground that admitting a child would prejudice the provision of efficient education or the efficient use of resources by exceeding the limit on infant class size (to which I have referred), an appeal panel was empowered (at the relevant times) to determine that a place should be offered to the child only if one of the conditions specified in regulation 6(4) of the 2002 Regulations were satisfied: see section 94(5A)(c) of the 1998 Act and regulation 6(3) for those Regulations. Those conditions were that:

"a) the child would have been offered a place if the school's admission arrangements had been properly implemented;

B) the child would have been offered a place if the school's admission arrangements had complied with the requirements of

(i) of the School's Admissions Code or

(ii) Part 3 of the 1988 Act.

C) The decision was not one which a reasonable admission authority would have made in the circumstances of the case."

14. An appeal panel is required to communicate to the appellant and the admission authority its decision and the grounds on which it is made: see paragraph 10 of Schedule 2 to the 2002 Regulations. It is also required in this respect to act in accordance with the School Admission Appeal Code, which is also issued under section 84 of the 1988 Act. This provides:

"2.37 The panel must ensure that the letter is expressed clearly without use of jargon to enable parties to:

a) See what matters were taken into consideration.

b) Understand what view the panel took on the questions of fact or law which the panel had to resolve.

c) Note broadly on what basis the appeal panel reached its decision and, in the case of the unsuccessful party, enable them to understand why they did not succeed.

"2.38 The Panel Chair must ensure that the letter:~...

B) Contains a summary of the relevant factors that were raised by the appellant and considered by the panel, along with the summary of any legal advice the panel sought, especially if this advice was received after the panel retired to make its decision.

c) Explains how and why any issues of fact or law were decided by the panel during the hearing ... and

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

What has occurred in this case

(1) CC's application in accordance with the Council's admission arrangements:

15. CC had to submit an application form for AL to be admitted to a primary school reception class in September 2011 by no later than 15 January 2011 in accordance with the Council's admissions arrangements for the 2011/12 school year. The form allowed, and the guidance in it encouraged, a parent to express a number of preferences in order. But it was emphasised that the order could not be changed later and that once the form was submitted after 15 January 2011, no changes to the preferences expressed would be permitted. In the form she submitted, CC expressed a preference for Kingswood School. She expressed no preference with respect to any other school.
16. AL had been attending a part-time nursery at Kingswood School since September 2010. CC says that when she completed the application form, she did so before she realised that the reception class at Kingswood School was to move in September 2011 to the old Norwood Park Primary School site at the top end of Gypsy Road.
17. In a witness statement the headmistress of Paxton Primary School, Ms Lucy Robins, states it was common knowledge that Kingswood Nursery, reception and years 1 and 2 would be moving to the lower site in September 2011; that the senior management team at that school did tours around the new school site on Tuesday mornings for all parents of prospective reception children and that letters were sent home in the book bags of all nursery children in the autumn term in 2010 explaining that the lower site would open in 2011. CC says that she only learned that the reception class would be moving to that site, however, after she had submitted her application to the Council when she overheard a conversation among other parents outside the school.
18. CC considered that the new location for the reception class at Kingswood involved a distance which was too far for her to walk with AL to and from the school. It is about 1.6 kilometres away from her home. She thought that Paxton Primary School, which is nearer, would be preferable. It appears, however, that there is a bus which stops outside Gypsy Hill station near to CC's home and also 350 metres from the new site for the reception class at Kingswood School. If the bus was used it would appear that the total distance that would have to be walked to Kingswood School is shorter than the distance that would have to be walked to Paxton Primary School. CC does not, however, accept that that is the case.

(2) CC's further application expressing a new preference:

19. Having realised that the reception class would move in September 2011, CC went to the Council's offices on 27 January 2011. She was given another application form which she filled in. CC does not suggest in her witness statement she did not understand that form or that she needed any assistance in understanding or completing it or that she asked for any. In the application form, the only preference she expressed was for Paxton Primary School. She did not identify in the form any exceptional medical or social reasons why AL should attend that school, nor did she include any professionally supported evidence in support of any such claim as required. It is clearly stated in the application form itself that forms received without supporting evidence would not be considered under these exceptional grounds. Moreover CC did not even state in that form, as she could have done, the reasons for her choice of Paxton Primary School.
20. CC says that she told the individual who gave her the form why she wished to change her preference and she asked whether she should see anyone but was told she did not need to. Given that information obtained in an interview could not be taken into account in determining the application and that the form invited her to state in it any exceptional medical or social grounds, to provide evidence in support and to indicate any reasons for her preference, that advice was understandable.
21. CC was provided with an acknowledgment that her application had been received on 27 January 2011. It stated that the application would be treated as a late application as it had been received after 15 January 2011, and that it would be dealt with after all other in-time applications had been processed. CC does not suggest in her witness statement that she was unable to understand what the acknowledgment said.

(3) The council's decision on CC's application:

22. On 4 April 2011 the Council wrote to CC informing her that AL had been offered a place at Kingswood Primary School. She was asked to send a reply form stating whether or not she accepted that place by 18 April 2011. She was also sent a sheet of general advice, "What do I do next?". This indicated that she had a right of appeal if it had been decided not to offer her child a place at a school she had applied for and that any appeal had to be submitted by 6~May~2011. It also made plain that such an appeal could be made whilst at the same time accepting any place offered, thus securing it if any appeal was unsuccessful.
23. It appears that the Council had considered CC's in-time application for Kingswood School and offered AL a place there. No offer was made in respect of the Paxton Primary School as CC had expressed her preference for it late and as all the places had already been offered to those children whose parents had expressed a preference for it by the stipulated time for submitting applications.
24. If CC's late application expressing a preference for Paxton Primary School had been considered as one that had been made in time, however, that would have made no difference to the outcome. Paxton Primary School was over-subscribed. The school had applications from 18 siblings of existing pupils. The furthest child from the school who was admitted on the distance criterion lived 250 metres from it measured in a straight line. AL lives 409 metres away from it measured in a straight line. AL would not have been admitted in accordance with the admission arrangements for that school in any event. At the time of the Panel's hearing in December 2011, she was in fact fourteenth on the waiting list for the school.

5) CC's response to the offer and her failure to appeal in due time:

25. CC received the letter notifying her of the Council's decision on 7 April 2011. That evening she faxed her reply refusing the place offered at Kingswood School. She stated that the reason why she was refusing the offer of Kingswood School was because of the distance to it which was too far for her, as she had health problems and as there was no bus route. She said that her application had been submitted on time but had been subsequently amended to make Paxton Primary School her preference. She also stated that she had made no other arrangements for AL to be in full-time education by the start of the next school year.
26. In accordance with the published arrangements for appeals against admission decisions, any appeal CC wished to make against the refusal to admit AL to Paxton Primary School had to be lodged by 6 May 2011. That date was notified to all parents in a booklet "Starting Primary School in Lambeth 2012", which is referred to in the application form, it is on-line, and it was available to all parents with the application form. The date for making any appeal and how to obtain information about such an appeal was also provided in the note of advice, "What do I do next", sent to CC with the letter from the Council on 4 April 2011. No such appeal was lodged by CC by the due date. No explanation has been provided why it was not.

(6) CC's subsequent efforts to appeal:

27. CC says that as time was ticking by she telephoned the Council on a number of occasions seeking to talk to the schools admissions section but that she could get no reply.
28. CC says that she eventually spoke to someone on 14 June 2011 called Deji who said that, if she had wanted AL to be considered for Paxton School she should have written "amendment" on the application form. Such advice, if given, and if meant to suggest that a new preference could be substituted after 15 January 2011 for one expressed before then, would not have been consistent with the statements in the application form or the acknowledgement of it to which I have referred. The Council's internal note of that conversation records that:

"Mum called to find out why she didn't get into Paxton ... explained to her distance criteria issues. She then switched to complain why we sent her offer for Kingswood and I explained to her that we didn't receive any instruction from her to withdraw application. She said she spoke to someone downstairs and she instructed them to cancel CAF, unfortunately she didn't put it in writing. She threatened further action from councillors."

29. CC says that she then read the general advice form, "What do I do next?", and decided to write a letter to appeal. She went to see the chairman of her local tenants association, Mr David Green, who sent an e-mail to the Council's schools admission section on 17 June 2011 on her behalf enclosing a letter from her by way of appeal against the failure to offer AL a place at Paxton Primary School. The Council says that it has no record of receiving this email.
30. AL continued attending the part-time nursery at Kingswood School until the end of the summer term.
31. After the end of the summer term, towards the middle to end of July, having heard nothing further from the Council, CC says that she went to see her local councillor, Councillor Bennett, at his local surgery for constituents. It appears that Councillor Bennett said that he would make enquiries on her behalf.
32. On 27 August 2011 Mr Green asked Councillor Bennett whether there had been any response to the enquiry he had said he would make. Councillor Bennett replied on 28 August~2011 apologising for the delay. He said that, although he had asked for a letter to go directly to Mr Green and CC, it had been left in his pigeon hole at the Council. It appeared that there was then no place for AL at Kingswood School (as the places available had been allocated) and that AL was then thirteenth on the waiting list for Paxton Primary School. The advice was that, if CC wanted her medical condition to be taken into account, she would need to submit evidence to the MEDSOC panel and, if that panel thought that it was medically necessary for AL to attend Paxton School, AL would move to the first place in the waiting list. She would not automatically be offered a place there. Councillor Bennett advised CC to put AL's name down on the waiting list for Kingswood School and to accept a place if it came up, as it was a short walk from the estate, but that the likely outcome was that AL would be offered a place at Glenbrook School, which is in Clapham, as there were then no places nearer home. He advised CC to speak to Mr Peter Scott urgently. Mr Scott is the Council's Service Manager for School Admissions.
33. CC says that she had also talked to a health visitor at Paxton Green Surgery in early August 2011 about AL and the school. In September 2011 CC says that the health visitor phoned her by saying that she had no luck getting through to the admissions section. She also mentioned MEDSOC to CC but she could not explain to CC what it was or how to contact them.
34. CC says, that as schools had started in September and as AL still had no place, she tried to phone Mr Scott leaving a message for him. Mr Scott says that the only record the Council has of a telephone call was of one made on 31 August about Paxton Primary School in which CC provided a mobile telephone number and said that a councillor was pursuing this on her behalf.
35. CC says that she eventually managed to speak to Mr Nigel Harvey on 5 October 2011 who sent her the form for making an appeal. It appears that, as a result, CC submitted an appeal form on 17 October 2011. She stated that the letter seeking an appeal had not been replied to and that, had the Council dealt with her concerns promptly by processing her amended application submitted on 27 January 2011, her daughter's chance of entry into Paxton Primary School would have been better than they now were. CC also submitted additional papers, including, for the first time, a letter from her doctor dated 4 August 2011 written to whom it might concern. This was, and is, the only available medical evidence about CC's condition. It stated that CC had problems with her thyroid and that she was feeling very exhausted and was unable to walk long distances. How far that might be was not stated. The letter did not address the question which schools it might be reasonable to expect CC to walk to with AL, with or without taking advantage of public transport.
36. Although out of time, the counsel accepted the appeal on the basis that there were extenuating circumstances.

(6) The appeal panel's decision:

37. The Appeal Panel held a hearing on 8 December 2011.
38. On 15 December 2011 it communicated its decision by letter to the parties. The Panel noted that the Council had been unable to offer a place at Paxton Primary School to AL as there were no vacancies. All the places had been allocated in accordance with the admission criteria. The letter continued, noting that the Council had:

"presented a written statement from Paxton School to demonstrate how in their opinion the admission of an additional pupil would have a detrimental impact on [AL] other pupils and the school in terms of curriculum delivery, resources and health and safety.

"The panel heard your reasons why [AL] should be allocated to a place at Paxton specifically.

"You had amended your original application after discovering that the reception class at Kingswood had been relocated, making Paxton your favoured school.

"You had faxed the School's Admission Team to inform them of this but received no response. You had tried on several occasions to contact the School Admissions Team to discuss the situation but did not get any response.

"There were health reasons affecting you which impact on your ability to take [AL] to, and collect her from, school.

"You believed that, had the School's Admission Team responded promptly to your concerns, [AL] may not have been denied at Paxton.

"Having considered the written and oral evidence presented, the IAP was not satisfied that the admission arrangements had been properly implemented and therefore decided, under paragraph 3.19(a), to allow the appeal."

The reference to paragraph 3.19(a) is a reference to that paragraph in the School Admission Appeal Code. It states that:

"3.19 Where a child has been refused admission to a school on infant class size prejudice grounds, an appeal panel can only offer a place to a child where it is satisfied that either:

a) the child would have been offered a place if the admission arrangements had been properly implemented;"

39. The Appeal Panel thus appeared from its decision to have decided that AL would have been offered a place at Paxton Primary School had the admission arrangements been operated correctly. However, it did not explain why that was so. It provided no reason why AL would have been admitted in the light of the admission criteria, given the distance she lived from the school, even if her preference for that school had been expressed in an application made before 15 January 2011 (which it had not been).
40. The minutes of the meeting of the Appeal Panel, which were made available when requested by the Council in early February 2012, however, disclose a different process of reasoning. They state that:

"During the discussion the clerk reminded the panel of the decision-making criteria outlined in the School's Admission Code for infant class size appeals and the grounds upon which an appeal could be upheld. The Panel considered the written submissions and the oral representations presented at the hearing and considered the appeal decision in the following parts:

a) Would infant class size prejudice be caused? Yes.

b) Would the addition of an additional child cause future infant class size prejudice? Yes.

c) Was admission refused in error or because the admission arrangements were contrary to mandatory provisions? Yes. The panel felt that because of lack of proper communication and of lack of proper professional advice at International House, this application had not been fairly administered by the Council admissions authority and the procedures had not been adhered to and in the light of that, the panel decided to uphold the appeal.

d) Was the decision by the admission authority reasonable? No. See above.

e) Was the decision to refuse admission perverse or beyond the range of options available to a reasonable authority? Yes. See above.

RESOLVED UNANIMOUSLY: To uphold the appeal. Full reasons for this decision are contained in the [AL]'s admission appeal decision letter sent to [CC] dated 15 December 2012."

7) The council's response to the appeal panel decision and the making of the claim for judicial review:

41. It appears that, after Paxton Primary School had reopened on 6 January 2012, Mr Peter Scott held discussions with it about the lawfulness of the Panel's decision and whether an application for judicial review should be made.
42. On 19 January 2012 CC telephoned Paxton Primary School and was told that the Council would not be offering AL a place at the school as it was considering the Panel's decision and thought that it was unlawful. It appears that the School had been previously asked by the Council to give that reply to any enquiry.
43. CC says that on 21 January 2012 Mr Green telephoned the Council in her presence and was told by Ms Ruth Wright, a senior admission officer, that the Council would be going for judicial review.
44. Mr Scott himself spoke to CC at the end of January 2012, stating that he thought that the Panel's decision was unlawful and asking whether she would consent to a fresh hearing of her appeal without requiring the Council to issue a claim for judicial review. She said that she preferred the matter to go to court.
45. As the Council's own solicitors were the Panel's advisers, the Council then engaged external solicitors on 1 February 2012.
46. On 6 February 2012 the Council wrote a pre-action protocol letter. It alleged that the letter dated 15 December 2012 contained no adequate reasons for the Panel's decision contrary to paragraph 10 of Schedule 2 to the 2002 Regulations. It stated that it appeared from the minutes that CC's appeal had been allowed because the Council had not communicated properly with her or provided her with proper advice. It contended this was not a ground upon which an appeal could be allowed. CC was sent a copy of that letter on the same day.
47. On 10 February 2012 the Panel agreed that its decision should be quashed for the reasons set out in the pre-action protocol letter.
48. On 13 February 2012 CC had a further conversation with Mr Scott who asked her whether she would accept a place for AL at Kingswood School. She told him that she had appealed and won and that she was not prepared to walk and to use the bus to get to and from Kingswood School. On the same day CC also wrote to the Council saying that she intended to resist any claim for judicial review.
49. The Council's claim was accordingly filed on 15 February 2012. As I have mentioned, Kenneth Parker J stayed the Panel's decision on 17 February 2012.

8) The current position:

50. AL has not attended school since the end of the summer term last year. She was five yesterday. She will be of compulsory school age on 31 March. She is now the fifth child on the waiting list for Kingswood School. The Council say that a place can be found for her, however, at Fenstanton School which is 1.6 miles from her home. The Council have told me that it can be reached by bus and that it is two minutes walk from the nearest bus stop. On her behalf Mr Jacobs does not accept that that is correct.
51. Paxton Primary School already has 31 pupils in its reception class. It appears that its classroom is relatively small. Nine of the pupils in that class have statements of special educational needs. Five of them have English as an additional language, two of whom have little or no English. Of the other pupils with special educational needs, one has speech delay, another has significant behaviour issues and a third is a vulnerable child, while the 31st pupil (whom the Council has placed in the class) has severe autism. The headmistress, Ms Robins, says that the school, which has about 220 children on its roll, is full and has other challenges to meet as well and that the efficient education of other pupils in the reception class and in the school would be prejudiced if AL had to be accommodated.
52. Ms Robins also states that AL is not even in the top ten of those on the waiting list for any available place in the reception class.

Consideration

(1) Background to the question whether permission or relief should be granted:

53. Before looking at the questions whether permission or relief should be granted, there are five initial points by way of background.

(1) The Council as admission authority for the school plainly has standing to bring this claim.

(2) The Council does not merely have an arguable claim. It is plain that its claim is well-founded. In my judgment the decision letter dated 15 September 2011 does not meet the requirements imposed by paragraph 10 of schedule 2 to the 2002 Regulations when coupled with the relevant provisions of the Schools Appeals Admission Code dealing with reasons. More substantially, as both the Panel and CC admit, AL would not have been offered a place if the admission arrangements as published had been properly implemented. The professed ground for the Panel's decision was untenable. Even assuming that her late application fell to be treated as one that had been made in time for some reason, the application form CC completed sought to advance no case on the ground of medical or social need for the Council to consider and it did not include the evidence in support of any such case which admission arrangements required. Absent a priority on the basis of such a need, AL would not have been admitted on the basis of the distance criteria.

(3) An appeal may also be allowed under the 2002 Regulations where the decision is not one that a reasonable authority would have made in the circumstances of the case. That was not a ground relied on in the Panel's decision letter, although the minutes of the Panel's meeting suggest it thought this condition was met. Precisely how this ground for allowing an appeal may be established when the ground on which the Panel relied on cannot be is far from straightforward legally. On behalf of CC, however, Mr Jacobs submitted that he was not seeking an order remitting the matter to the Panel in any event if the Council's claim for judicial review was successful as that would be pointless in the circumstances: whatever material CC might be able to adduce in support of her appeal would not enable the Panel to allow her appeal on this ground. It follows that CC's appeal was one which the Panel could not have allowed.

(4) If the decision stands,

A) there will be a prejudice to the schooling of others in the reception class and in Paxton Primary School, as its headmistress has explained,

B) AL will have been allocated a place to which she was not entitled and to which others now have a greater right on the basis of the admission criteria if a place at that school is available; and

c) the governing body of Paxton Primary School may have to exercise its functions so as to secure the limit on infant class size is not exceeded next year when AL, if admitted, will cease to be an "excepted pupil": see paragraph 4 of schedule 2 to the 1998 Regulations. The Panel found infant class size prejudice was likely to occur in future if AL was admitted. To comply with its obligations, the Governing Body might have to find, for example, therefore, the resources to employ another teacher and further accommodation.

(5) If the panel's decision is quashed,

a) AL would not be required to leave a school she has already begun attending, and

b) if AL cannot attend Paxton Primary School, there is a place for her at Fenstanton School. Whether it is reasonable to expect AL to attend that school, given CC's difficulties in walking long distances and the public transport that is available, I am not in a position to determine. The Council does provide school transport for children who have to attend school over three miles from their home but it is unclear whether if CC applied, it would provide transport for AL to school within that distance. AL has not made any application for school transport and Miss Sarah Hannett, who appeared on behalf of the Council, was unable to say what the outcome of such an application (if made) would be. What is clear is that some solution to AL's future schooling will have to be found, given that she will shortly be of compulsory school age.

(2) Whether the council's claim form was filed promptly:

54. The first question I need to consider is whether the Council's claim form was filed promptly in accordance with CPR54.5(1)(a). If not, I shall have to consider whether there are good reasons to extend the time within which it should have been filed and whether permission or relief should be refused for the reasons given in section 31(6) of the Senior Courts Act 1981 or for any other reason.
55. In this case the Panel's decision was communicated by a letter dated 15 December 2011. The claim form was filed on 15 February 2012 just under nine weeks later.
56. On behalf of the Council Miss Sarah Hannett submits that it acted promptly. The Council wanted to discuss with Paxton Primary School whether the Panel's decision was unlawful and whether an application for judicial review should be made. The school was closed from 15 December 2011 to 6 January 2012. Issues about funding any litigation also had to be discussed with the school and with Mr Scott's senior managers. Overall the period taken, she submits, was not excessive and the Council sought to ensure that the claim once filed would be determined quickly.
57. Mr Jacobs submits that there was no excuse for the Council failing to act before the start of the new school term on 6 January 2012 and that there was no excuse for it failing to act more swiftly thereafter. He points out that AL had not been in school since September; that the Council knew that the Panel's decision would be likely to be issued before Christmas; and that it should have been geared up to address the outcome promptly, given that the new school term was due to begin on 6 January. This was a decision that would affect not only CC and AL but potentially Paxton Primary School, its pupils and other children whose parents wanted them to attend that school. Instead, he submits, the Council either took the decision not to discuss the decision with the School before 6 January or it did not address its own mind to it until then. Even when the Council did discuss the position with the school, so he contends, it still took its officers nearly a month to instruct external solicitors, having already decided at some point before 19 January 2012 that it was not going to give effect to the Panel's decision as it did not believe it to be lawful. Such conduct was not compatible, so he submits, with good public administration which requires decisiveness and finality unless there are compelling reasons to the contrary.
58. In my judgment the Council could have acted more swiftly. The Council should have recognised on receiving the decision that CC and AL would expect AL to attend Paxton Primary School following the Panel's decision at the beginning of the new term on 6 January 2012 and that the School itself needed to know whether it would have to educate AL that term. The decision letter from the Panel was plainly deficient. The Council did not need external legal advice to reach that conclusion. Its own officers, no doubt experienced in this field, recognise that and had decided to go for judicial review before external solicitors were retained on 1 February (as Ms Ruth Wright told CC on 21 January 2012). But the evidence does not reveal when the Council's officers recognised that the decision was unlawful.
59. Nor does the evidence reveal when they decided to consider the implications of the Panel's decision with Paxton Primary School. I accept that it was reasonable for the Council to do so. I appreciate that the school itself was closed from 16 December 2011 and that Christmas and the New Year intervened before the new term began on 6 January 2012. But the Council have filed no evidence that the headmistress and GoVerning Body could not have been contacted before the new term began or even whether its officers thought of trying to do so.
60. The evidence from the Council does not indicate that in fact any steps were taken to consider the Panel's decision and what to do about it until after the new term had begun on 6 January 2012.
61. At least by 19 January 2012 the School had been told to say that "the Council would not be offering a place [at the school] as they feel [the Panel's decision] to be unlawful". Mr Scott only spoke to CC at the end of January 2012, however, stating the Council thought that the Panel's decision was unlawful and asking her whether she would consent to a fresh hearing without requiring the Council to issue a claim for judicial review. She said that she preferred the matter to go court. The Council has provided no explanation why nothing was done to progress the potential claim for judicial review between its officers reaching the view that the decision was unlawful, some time before 19 January 2012, and this conversation at the end of January.
62. I should add that the Council has not explained why CC was not contacted by the Council itself to inform her of its view before the end of January. It should have done so earlier, and as soon as the officers of the Council who were involved reached that view and decided the Council was not prepared to give effect to the Panel's decision. It was insensitive to say the least for the Council to leave CC to discover the Council's position from the school when she approached it.
63. Following Mr Scott's conversation with CC at the end of January 2012, however, the Council acted promptly in getting external legal assistance, sending a pre-action protocol letter and filing its claim for judicial review. The fact that it sought to have its claim determined speedily is commendable. It recognised the need for the dispute to be settled promptly. But it would not excuse any failure to act promptly before the claim was filed.
64. The question is whether the Council failed to act promptly in filing its claim given the delay before the conversation which Mr Scott had with CC at the end of January 2012. It is, of course, always possible in retrospect to find periods in which it appears that steps which could have been taken to progress matters sooner were not. It is also always easy when looking at the facts of one case to ignore the pressures of other matters on the times of officers in authorities such as the Council. I bear in mind that Christmas and the New Year intervened but I also bear in mind that, in cases where the education of a child and the educational responsibilities of a school are affected, the requirement to act promptly is more stringent than it may be in some other cases, that AL had not been in school since the end of the summer term in 2011, and that CC and AL would have expected a place to be offered following the Panel's decision at the beginning of the new term on 6 January 2012 (as the Council should have anticipated). Although the failure may have delayed the making of its claim by only a few weeks, in my judgment the Council failed to act promptly in all the circumstances after December 15. There was undue delay in filing the claim form.

(3) Whether permission or relief should nonetheless be granted: general

65. It is one thing to hold undue delay against a claimant who has an arguable claim if that person alone may suffer if refused permission or relief. It is another, however, to refuse permission or relief without more when the decision impugned is one which could not unlawfully have been taken and it is likely to have the result, if the decision stands, of prejudicing innocent third parties, namely in this case children attending Paxton Primary School and those on its waiting list.
66. The primary function of judicial review is to uphold the rule of law by securing that only those things that public authorities have power to do have any legal effect. As Lord Bingham indicated in Barclay v Secretary of State for the Environment (No 1) [2001] UKHL 36, [2001] 2 AC 603 at page 608, the discretion of the court to refuse to quash a decision which its maker had no power to give is very narrow. It is, as Lord Hoffmann observed in that case at page 616, something which it would be exceptional for a court to do. Even if there had been undue delay in filing a claim, vindicating the rule of law in a case in which it is plain, as in this case, that the decision impugned is one that a public authority had no power to give would provide a reason for extending the time within which a claim should have been made. Of course, any detriment a defendant or any interested party would suffer if time were extended would be relevant in considering whether that was a good reason to extend time in the circumstances but so equally must the effect on others of allowing such an unlawful decision to stand.

The Defendant in this case, the Panel, will suffer no detriment because of any undue delay in filing this claim.

67. The delay itself has no doubt led CC and AL themselves to believe that AL would be going to Paxton Primary School as a result of the decision impugned for longer than they would have entertained that hope had the claim been made more quickly. The longer they entertained that belief, the greater the disappointment they doubtless felt when it emerged that the decision which they were relying on would be challenged and the place put in doubt. But CC knew that the Council had not offered AL a place at Paxton School by the beginning of the new term in January and she knew about a month after the Panel's decision that the Council did not accept it and were not going to offer AL a place there. I nonetheless accept that even so, the undue delay in this case in finding this claim, which involved at most only a few weeks, is likely to have caused them at least some greater disappointment than might otherwise have occurred had the Council acted promptly.
68. Mr Jacobs suggested that, had the claim had been made earlier, there might have been a difference in AL's position on the waiting list for other schools with the result that there could have been a place in another school for AL which CC might then have accepted but which is not now available. Whether or not AL's position on the waiting list for another school would have been different is a matter of speculation. It might have been worse, for example, than it now is, as the place on the waiting list depends on the application of the admission criteria. But there is in any event no good ground to believe that CC would have accepted any place at any school other than Paxton Primary School in that period had it been offered. She again refused a place at Kingswood School for AL, for example, on 13 February 2012.
69. The main adverse affect on CC and AL stems from what will occur if the decision impugned does not stand. That is unaffected by any delay in making this claim. The effect of granting permission and quashing the decision will be that AL will not enjoy a place at a school to which she was never entitled. It may mean that AL will have to attend another school and that CC may have problems walking to such school with her daughter, even taking advantage of public transport. Those consequences CC and AL would have had to confront in any event if the Panel had taken the only decision that was open to it last December.
70. If permission or relief is refused, however, as I have said, other children will suffer, both those now attending Paxton Primary School and those higher than AL on its waiting list. In my judgment, the Council's undue delay in filing its claim should not prejudice those other children and give CC and AL the benefit of a place to which AL was never entitled. Given also the importance of securing that only those things that the public authorities have power to do have any legal effect, then, on balance, but subject to any other considerations, I would extend the time within which the Council should have filed its claim and would quash a decision which could not unlawfully have taken by the panel.

(4) Other considerations why CC contends that permission or relief should be refused:

Mr Jacobs contends, however, that there are such other considerations that I should take into account:

71. (i) The Council's alleged delay and maladministration dealing with CC before the Panel's decision.

First, Mr Jacobs complains of the Council's earlier general delay and maladministration dealing with CC's application for a primary school place. He relies on eight specific matters.

72. First he submits that the Council failed to notify CC that the site of the reception class at Kingswood School was moving before she made her first application on 15 January 2011. Lambeth received, so I am told, about 3,000 applications for primary school places. The form for making an application asked parents to ensure that, before returning it, they had researched thoroughly each school they were interested in. The Council published a guide to assist prospective parents. Schools themselves also sometimes publish prospectuses. Of course, the information in such publications may not cover every matter about which a prospective parent may be interested. While the Council should no doubt answer specific questions asked of it by parents if there is further information they may reasonably want, it is not unreasonable for it to expect parents to take an interest in, and to make inquiries themselves about, the schools they are interested in sending their children to. I have already referred to the steps that Kingswood School also took to show the new site to prospective parents of children for its reception class. It had moreover given details to parents of nursery children already at the school, such as CC, of the new site for the reception class in the autumn term. In the circumstances, the criticism of the Council that Mr Jacobs advances has no merit.
73. Mr Jacobs submits secondly that the Council failed to advise CC properly when she went to submit her new preference for Paxton Primary School on 27 January 2011. He contends that she was left believing that Paxton Primary School would be treated as her preference rather than Kingswood Primary School. The status of her second application was quite clearly stated on the receipt for it she was given. Had she read it, or indeed the application form itself, CC could not have thought that the application form she had filled in naming Paxton School as her preference would be treated as if it were one that had been made before 15 January. CC does not suggest that she could not read or understand what those documents said, nor does she suggest that anything was said to her to the contrary on 27 January 2011. If she believed that the fist application she had made would not be considered, there is nothing to show that she was told that. But in any event, the Council's consideration of her first application caused CL and AL no prejudice whatever: it made no difference to the outcome of the second application and AL was given an offer at Kingswood School that she might not otherwise have received. This criticism of the Council likewise has no merit.
74. Mr Jacobs submitted thirdly that the Council had failed to process CC's second application properly. In my judgment, the Council dealt with it in accordance with the admission arrangements and what was clearly said on the application form and on the acknowledgment of its receipt that CC was given. This criticism of the Council again has no merit. But, even if it did, as Mr Jacobs accepts, AL would not have been offered a place at Paxton Primary School, even if CC's preference for it had been expressed before 15 January 2011.
75. Mr Jacobs submitted fourthly that the Council failed to respond to CC's fax on 7 April 2011 refusing the offer of a place at Kingswood School. In my judgment there was nothing in that fax that required a response from the Council. AL was not then of compulsory school age and would still not be in September 2011. If CC had wanted to appeal against the failure to offer AL a place at Paxton Primary School, the Council could reasonably have expected CC to have appealed. She did not do so on 7 April or before the deadline for appeals expired.
76. Mr Jacobs next submitted that the Council lost or ignored CC's initial letter of appeal emailed by Mr Green to it in June 2007. The Council has no record of receiving the e-mail which it appears was sent to it. The Council may be at fault in dealing with it. It does not appear, however, to be a matter that Councillor Bennett made enquiries about on CL's behalf and CC appears to have done little, if anything, specifically to progress any appeal she had made in June, for example by writing to the Council to ask what had become of it.
77. Mr Jacobs submitted sixthly that there was a delay in sending the response to Councillor Bennett's enquiry to CC. It appears that the response was left in the Councillor's pigeon hole at the Council rather than being sent directly (as he had requested) to Mr Green and her. It is not clear whether the resulting delay was significant or whether there was any delay in responding to the enquiry. At all events, it appears to have taken CC about a month to receive the response, having gone to see her councillor. Although this was in August and that may have delayed the response somewhat, no doubt it would have been possible for a response to have been communicated earlier.
78. Mr Jacobs submitted seventhly that there was a failure to deal with or respond to CC's telephone calls. It appears that on occasions when CC tried contacting the Schools Admission Team at the Council by telephone she encountered difficulties in speaking to anyone in that team. But it is not clear from material available to me that, when she did speak to someone, she received no adequate response.
79. Finally, Mr Jacob submitted that there was a delay in setting up the Panel hearing on 8 December to hear the appeal CC had made on 17 October 2012. He accepts, however, that the date fixed complied with the Code on Appeals and there is no evidence that a Panel hearing could reasonably have been arranged sooner.
80. Mr Jacobs also invited me to look at the overall picture. He points to the fact that CC made an application in January 2011 for AL to be admitted to a school in September 2011 and she is still not at school. That is true. But in my judgment CC herself has contributed to this result. Even if for some good reason she did not read the note which would have been sent to her in AL's book bag in the autumn term in 2010, she does not seem to have enquired of Kingswood School at any time when AL was in the nursery there before she submitted her first application form what the arrangements for the reception class she wanted AL to join in September 2011 would be. Nor does she appear to have taken advantage of the tours of the new site that were available to prospective parents. When she found the reception class was moving she failed to explain in her second application form why she wanted AL to go to Paxton Primary School and she made no mention of her difficulties in it. She has not explained why she made no attempt to appeal against the failure to offer AL a place at that school before the deadline for such schools expired. She appears to have sent a letter subsequently appealing against that decision on 17 June 2011 only after she had read advice which had originally been sent to her on 4 April 2011. She appears to have done little thereafter to discover why no appeal hearing had been arranged. She only went to Paxton Primary School in July 2011 to speak to them about AL's admission there. She only sent the note from her GP which she obtained on August 4, 2011 to the Council when she submitted the appeal form on 17 October 2011. The impression given by her statement is that although she did try to contact the Council on occasion by telephone and encountered difficulties getting through, her efforts in that respect were intermittent.
81. Mr Jacob submitted, however, that admission procedures are complex and that the Council should have been more proactive in helping CC and assisting her to find a solution to AL's schooling. He points to the fact that the minutes record that the Appeal Panel thought there had been a lack of proper communication and a lack of proper professional advice at the Council's office, that CC's application had not been fairly administered and "the procedures" had not been adhered to. The Panel did not explain, however, on what basis it reached these conclusions. The Council does not accept it was guilty of any maladministration.
82. I have set out what in my judgment can be said about the criticisms of the Council's conduct advanced on CC's behalf by Mr Jacobs in deference to his submissions and in fairness to the Council. But I bear in mind what the Panel is recorded to have thought. The question of whether the Council is guilty of maladministration is not a question for this court to determine. Whether or not the Council was guilty of maladministration prior to the decision of the Panel or was more at fault in dealing with CC's application than it appears to me to have been, I attach little relative weight to it in the circumstances. As Ms Hannett pointed out, the conduct of which complaint is made involves no misconduct in the conduct of this claim. In my judgment such matters provide no good ground for leaving AL with the benefit of a place at Paxton Primary School to which she was never entitled with the result that other children, who cannot be criticised, would be prejudiced, as they would be if the decision were to stand in consequence. Even if the Panel's views were generally well-founded, they would have provided no ground on which the Panel could have required AL to have been offered a place at Paxton Primary School. There are other remedies for maladministration for those who suffer from it.

(ii) ADL.

83. Secondly, Mr Jacob criticised the Council for failing to pursue any form of alternative dispute resolution adequately or at all before filing its claim. Mr Jacobs submitted that it was necessary to offer something meaningful to avoid litigation and the Council had done nothing to address the central problem. In this case the Council offered to agree to a fresh hearing before the panel of CC's appeal and offered it a place at Kingswood School in an attempt to avoid having to file this claim. But CC has shown no willingness to accept anything other than a place for AL at Paxton Primary School. Until 18 March 2012 she did not even accept that the decision impugned was unlawful and until then she appeared determined throughout to contest this claim. In the circumstances, given the need for the Council to file any claim promptly and given the information about CC's condition available to it, the Council's attempts to avoid litigation were not unreasonable.

(III) Acquiescence.

84. Finally Mr Jacobs complained of acquiescence by the Council in the decision impugned. In developing his argument, it became clear that this was not a helpful label to describe this complaint. In essence it is that the Panel's clerks, whose function was to advise the Panel on the law and to assist in drafting a letter conveying the Panel's reasons for its decision, failed to prevent a legally flawed decision and decision letter; that the individuals concerned were employed by the Council; and that, therefore, the Council was responsible for the flawed decision and decision letter and should not now be allowed to complain about it.
85. In my judgment this argument is also devoid of any merit. Mr Jacobs does not suggest that the individuals concerned should not have acted as clerk to the Panel or that they were not appropriate individuals to be appointed by the Council to do so. There is no evidence what they may or may not have advised the Panel in respect of its decision and its decision letter (except what is stated in the minutes) but, in doing so, they owed their duty to the Panel, not the admission authority of the school. Indeed, any control exercised by the admission authority over what they did could be seen as incompatible with the independent discharge of their function as a clerk to the Panel. There is no basis for the contention that the individuals who acted as clerks, much less the Council, should be regarded as responsible for the defective decision. The responsibility for any decision ultimately rests with those who took it. In addition, as paragraph 2.38 of the School Admission Appeals Code makes plain, it is the responsibility of the Panel chair to ensure that the decision letter provides adequate reasons for the decision. But even if it could have been said that in some way the Council was responsible, in my judgment that would provide no good reason for refusing permission or relief. The Council is not acting in its own interests as an admission authority bringing a claim about a legally defective Panel decision. Those in whose interests it acts should not be prejudiced by any such tenuous link between the Council and the Panel's decision. The Council did not suggest to the Panel that it should make the decision impugned. There is no good reason why AL should have a place at Paxton Primary School to which she was never entitled, prejudicing other children who are not responsible for any errors the Panel made.

(5) Conclusion

86. Having had regard to the other reasons why permission or relief should be refused raised by Mr Jacobs and to all other matters to which I have referred in this judgment, I grant the Council permission to make this claim and the decision of the Panel impugned will be quashed. Although the Council failed to act promptly, the undue delay in this case only involved a matter of a few weeks at most. The detriment that CC or AL has suffered as a result of such delay is limited. Quashing the decision would leave CC and AL in no worse position than they would have been in had the Panel taken the only decision open to it. The decision impugned is clearly one that the Appeal Panel had no power to give. Mr Jacobs accepts that remission of CC's appeal to the Panel would be pointless. Quite apart from allowing an unlawful decision to stand, doing so would give AL a place at Paxton Primary School to which she was never entitled. It would prejudice other children attending that school and on the waiting list for it. In all the circumstances, therefore, in my judgment the Panel's decision, which it had no power to give, should be quashed.

Concluding observations

87. AL has been out of school since the beginning of this school year. She will be shortly of compulsory school age. It is important that schooling is now arranged for her as soon as possible. CC's wish to accompany AL to and from school at her age is understandable. But CC has no right to compel the Council to admit AL to Paxton Primary School, regardless of the consequences for that school and other children. It would no doubt help in considering what arrangements might reasonably be made for AL's education for CC to obtain more specific medical evidence about what CC can and cannot reasonably be expected to do. Whether school transport to a local school may be necessary or available, or whether other arrangements could be made to take AL to and from school is unclear. But it is to be hoped the Council and CC will now work together to ensure that AL's education is not prejudiced and that she can start school as soon as possible in the interests of her welfare.
88. MS HANNETT: My Lord I am very grateful for my Lord's judgment and the speed at which that has been produced. My Lord, there were, I think, three points that I note in the course of my Lord's judgment that I would just emphasise. The first is that at least on one occasion I spotted Ms Robins' name, the headteacher of Paxton Primary School, her name is written with a single B and not two Bs.
89. THE DEPUTY JUDGE: I hope the shorthand writer will take note of that and take it on board.
90. MS HANNETT: My Lord, I am very grateful. The second point was that I noticed CC's name and that of AL's name slipped in on I think one or two occasions.
91. THE DEPUTY JUDGE: I meant to say square brackets around the name with CC and AL.
92. MS HANNETT: My Lord did that on most occasions, I think it was once in relation to each of them.
93. THE DEPUTY JUDGE: I will make sure that happens on the transcript when I correct it.
94. MS HANNETT: My Lord, I am very grateful. A third matter, my Lord, is I think there was an errant Councillor Burnett on page 20, third paragraph of my Lord's judgment, it is, of course, Bennett.
95. THE DEPUTY JUDGE: Bennett. Again, I will be grateful if the shorthand writer could take that on board. Could I just check that I did read out something that I was intending to read out, namely what the council's admission criteria for oversubscription were.
96. MS HANNETT: I am not sure my Lord did in fact.
97. THE DEPUTY JUDGE: No, I should have done. Shorthand writer, in the copy of my note which I gave you it is at the bottom of page 3. It should say:
98. The council's admission criteria accord priority to children in the following order: (i) looked after children; (ii) siblings; (iii) children with exceptional medical or social needs; and (iv) distance between the child's home and the school measured in a straight line. The third category applies to -- and if I can just quote it and if the shorthand would be good enough to insert this passage:
99. "Children with a professionally supported medical or social need whose application identifies a particular school as is especially able to meet that need. The decision to prioritise children on these grounds will be determined by Lambeth admissions authority's MEDSOC Panel which is comprised of senior management and senior school staff (...) letters from an appropriate professional must support these applications although these will not always be conclusive."
100. I am sorry, I meant to read that out, if I didn't.
101. MS HANNETT: In terms of the order, my Lord, it seems to me that what follows is that the claimant has permission to apply for judicial review. Second, the claimant's claim for judicial review is allowed. Third, the defendant's decision of 15 December 2011 shall be quashed. I understand from my learned friend's submissions yesterday that he is not seeking an order for remission so it is simply a quashing order, I also did say that I would say that the first interested party shall have detailed assessment of her legally aided costs. My Lord, as I indicated yesterday, I don't make any application for inter-parties costs. My Lord, I suppose the only other question is whether or not my learned friend has an application for permission to appeal but my Lord I hope I have fairly set out what I think are the terms and my Lord, I, of course, am entirely happy to draw that order up and have that agreed with Mr Jacobs in due course.
102. MR McBRIDE: My Lord, no, I am not seeking any permission to appeal.
103. THE DEPUTY JUDGE: You are not seeking any permission to appeal? What I said to Mr Jacobs was that, as he was not going to be here, if this is what was wanted I would allow an application for permission to be made in writing, so it is entirely a matter for you whether you wish to reserve that position or not. If I give such permission, there is no obligation to take it up.
104. MR McBRIDE: Thank you my Lord. Well then I suppose I will inform Mr Jacobs of that and let him know that he can make that application if he wishes to although I don't think it is his intention to do so.
105. THE DEPUTY JUDGE: I think if so, given AL's position, it should be done promptly. Will Mr Jacobs be around next week?
106. MR McBRIDE: I believe he will be back at some point next week but I am not sure when. He didn't let me know his diary for next week although he certainly didn't let me know that he was away for a long period. I can't be of any further assistance.
107. THE DEPUTY JUDGE: The order will be as follows: the Council has permission to apply for judicial review; the Council's claim for judicial review is allowed and the Defendant's decision given by letter dated 15 December 2011 is quashed. The First Interested Party shall have a detailed assessment of its legally aided costs. Any application for permission that the first interested party wishes to make should be filed and served by no later than 4.00pm next Friday. I would be grateful if the associate could put in the relevant day of the month there. Any response to that application which the Council wishes to make shall be filed and served by 4.00 pm on the following Tuesday and again I would be grateful if the relevant date could be put in.
108. Ms Hannett, since you have offered to draw up the order and agree it, I would be grateful if you could do that and arrange to send it to the associate.
109. MS HANNETT: Yes, of course, my Lord.
110. THE DEPUTY JUDGE: I would like to thank both counsel for their assistance. Thank you very much.