England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 July 2014

Mr Justice Supperstone :

Introduction

1. The First Claimant is the Governing Body of the Warren Comprehensive School ("the Warren") which is a mainstream school maintained by the Second Claimant, the London Borough of Barking and Dagenham.
2. In February 2013 the Warren was placed into special measures by the Office for Standards in Education, Children's Services and Skills ("Ofsted").
3. On 6 January 2014 the Defendant, the Secretary of State for Education, decided:

i) to make an Academy Order in respect of the Warren pursuant to section 4(1)(b) of the Academies Act 2010 ("the 2010 Act"); and

ii) to appoint an Interim Executive Board ("IEB") for the Warren pursuant to section 69(1) of, and Schedule 6 to, the Education and Inspections Act 2006 (" the 2006 Act") with effect from 8 January 2014.

4. On 7 January the Claimants issued an application for permission to seek judicial review in respect of both decisions. Further, the Claimants challenged the lawfulness of the guidance issued by the Defendant under section 72 of the 2006 Act, Schools causing concern – guidance for local authorities (October 2012) ("the Guidance").
5. On 8 January Carr J granted interim relief preventing the appointment of the IEB and preventing the Academy Order from taking effect.
6. At a hearing on 15 January Collins J (i) granted permission to apply for judicial review of the two decisions of 6 January 2014; (ii) continued the interim relief preventing the Defendant acting on reliance on either the decision to make an Academy Order or the decision to appoint an IEB; and (iii) stayed the proceedings.
7. At a hearing on 15 April Collins J lifted the stay, and the interim relief was varied to enable the Defendant to take a decision on whether or not to enter into academy arrangements with regards to the Warren.
8. On 12 May 2014, following a consultation on academy conversion, the Defendant decided that the Warren should become an academy sponsored by Loxford Academy Trust. It is envisaged that the school will open as an academy on 1 September 2014.
9. The Claimants now seek to challenge the decision made on 12 May 2014.
10. On 2 June, in accordance with the order of Collins J dated 17 April 2014, the Claimants filed an amended statement of facts and grounds. On 17 June, in response, the Defendant served amended detailed grounds of defence. The parties agreed, the hearing of this claim having been expedited, that these two documents shall also stand as each side's skeleton argument.

The legislative framework

(1) Schools eligible for intervention

11. Part 4 of the 2006 Act deals with schools causing concern in England. Section 59(2) states that references to a school being "eligible for intervention" includes a school requiring special measures. Section 62 provides that a maintained school is "eligible for intervention" if

"(a) following an inspection of the school under Chapter 1 of Part 1 of [the Education Act 2005], the Chief Inspector has given notice under section 13(3)(a) of that Act in a case falling within section 13(1)(a) of that Act (school requiring special measures), and

(b) where any subsequent inspection of the school has been made under Chapter 1 of Part 1 of the Act, the person making it did not state that in his opinion special measures were not required to be taken in relation to the school."

12. By section 44(1) of the Education Act 2005 ("the 2005 Act"), "special measures" will be required if the school is failing to give its pupils an acceptable standard of education, and the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement in the school.

(2) Power of the Secretary of State in respect of a school's governing body

13. Part 4 of the 2006 Act gives powers to a local authority and to the Secretary of State where a school is eligible for intervention. The Secretary of State's powers include the power to provide for the governing body to consist of interim executive members. Section 69 provides:

"(1) If at any time a maintained school is eligible for intervention… the Secretary of State may give the governing body a notice in writing stating that, as from the date specified in the notice, the governing body are to be constituted in accordance with Schedule 6 (governing bodies consisting of interim executive members).

(2) Before exercising the power conferred by sub-section (1), the Secretary of State must consult—

(a) the local authority;

(b) the governing body of the school…"

14. By section 70(a), Schedule 6 to the 2006 Act has effect in relation to any school in respect of which a notice has been given under section 69(1) by the Secretary of State. Schedule 6 makes provision for the composition of the IEB. Paragraph 3(1) of Schedule 6 provides that on the date specified in the notice under section 69(1), the existing governors vacate office. Paragraph 3(3) provides that during the interim period, any reference in any provision contained in, or made under, the Education Acts to a governor of the school has effect, in relation to the school as a reference to an interim executive member. Paragraph 10 states that during the interim period, the IEB shall conduct the school so as to secure, so far as is practicable to do so, the provision of a sound basis for future improvement in the conduct of the school.

(3) Academy Orders and Academy arrangements

15. Section 4(1) of the 2010 Act provides that the Secretary of State may make an Academy Order in respect of a maintained school in England if: (a) the school applies to become an academy under section 3 ("Convertor Academies"); or (b) the school is eligible for intervention within the meaning of Part 4 of the 2006 Act ("Sponsored Academies").
16. Section 4(2) defines an "Academy Order" as "an order for the purpose of enabling the school to be converted into an Academy". Section 4(3) provides that:

"A maintained school is 'converted into' an Academy if Academy arrangements are entered into in relation to the school or an educational institution that replaces it."

Thus a maintained school is only converted into an Academy at the point at which academy arrangements are entered into.

17. Pursuant to section 1(1) of the 2010 Act the Secretary of State may enter into academy arrangements with any person ("the other party"). Section 1(2) defines "Academy arrangements" as being arrangements that take the form of an Academy agreement or arrangements for Academy financial assistance. Section 1(3) defines an Academy agreement as being an agreement between the Secretary of State and the other party under which (a) the other party gives the undertakings set out in sub-section (5), namely to establish, maintain and carry on an educational institution in England which meets prescribed requirements, and (b) the Secretary of State agrees to make payments to the other party in consideration of those undertakings.
18. By section 5(1), before a maintained school in England is converted into an Academy, there must be a consultation on the question of whether the conversion should take place, i.e. whether the Secretary of State should enter into Academy arrangements.
19. Section 5(2) states as follows:

"The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school."

20. Section 5(3) provides that in the case of a school that is eligible for intervention, the consultation may be carried out by the school's governing body, or a person with whom the Secretary of State proposes to enter into Academy arrangements in respect of the school or an educational institution that replaces it. Sub-section (5) requires the consultation to seek the views of such persons as the person carrying it out thinks appropriate.
21. Section 6 applies only if an Academy order has effect in respect of a school: see section 6(1). Section 6(2) states:

"The local authority must cease to maintain the school on the date ('the conversion date') on which the school, or an educational institution that replaces it, opens as an Academy."

(4) Federated schools

22. Section 24(1) of the Education Act 2002 provides that in prescribed cases the governing bodies of two or more maintained schools in England may, after complying with the prescribed conditions and in accordance with prescribed procedure, provide for their respective schools to be federated for the purposes of Chapter 1 of Part 3 of the 2002 Act. Sub-section (2) defines "federation" as a group of schools in England that are federated by virtue of this section, and "federated school" means a school forming part of a federation.
23. By section 24(3), where any schools are federated by virtue of this section, they shall have a single governing body constituted under a single instrument of government, and in prescribed cases, be treated as a single school for the purposes of certain enactments. Section 24(4) provides for the making of regulations relating to federations. The relevant regulations are the School Governance Federations England Regulations 2012 ("the 2012 Regulations").

(5) Guidance on schools causing concern

24. Section 72 of the 2006 Act provides that a local authority must, in exercising their functions under Part 4 of the 2006 Act, have regard to any guidance given from time to time by the Secretary of State. In October 2012 the Secretary of State published the then latest version of statutory guidance under this section, entitled "Schools causing concern – guidance for local authorities". Section 1 deals with schools causing concern. At page 4 there is the heading "Schools eligible for intervention as they have been judged as requiring significant improvement or special measures". The Guidance states:

"… There is a clear expectation that in these cases, where the school has been judged by Ofsted to have 'serious weaknesses' or require 'special measures', conversion to an Academy with a strong sponsor will be the normal route to secure improvement."

25. Section 4 of the Guidance deals with the Secretary of State's powers. At page 13 (under the heading "Power to make an Academy order"), the Guidance states:

"The expectation is that a persistently under-performing school or a school that is in Ofsted category will become an Academy. Any such Academy would be a 'sponsored' Academy, meaning that the school would adopt governance arrangements, involving a strong external body, that will ensure that the school is supported in turning its performance around (an organisation or a sponsoring school).

The expectation would be that any strong school which was proposing to act as a sponsor would themselves also be an Academy or willing to become an Academy in order to take on the sponsorship role. Being an Academy will allow the sponsoring school to use its Academy freedoms to secure rapid improvement in both the school it is sponsoring, as well as its own school."

The factual background

26. Following an inspection on 7-8 February 2013 Ofsted concluded that the Warren required special measures. The school was judged to be inadequate in all four areas of assessment and competence, namely, achievement of pupils, quality of teaching, behaviour and safety of pupils, and leadership and management.
27. In the section of the report on "The leadership and management", Ofsted observed that "despite recent action to raise achievement and improve behaviour, the school's capability to improve is inadequate". Specifically in relation to the governance of the school, the report notes:

"Governors are passionate about the school but accept information from school leaders without checking it so they can understand fully what they are being told. Consequently, they remain unaware of the quality of teaching and learning in the school, why students under-achieve and the quality of their behaviour. … They willingly give their time but lack the skills and expertise needed to bring about the rapid changes needed or to rigorously challenge the head teacher to improve the overall effectiveness of the school."

28. After the special measures judgment, Sir Paul Grant, the head teacher of the Robert Clack School ("Robert Clack") visited the Warren and offered to provide support. Robert Clack is also a secondary school with a sixth form maintained by the local authority. It was judged "good" by Ofsted in October 2013, having previously been judged "outstanding" by Ofsted in December 2007 and at an interim assessment in January 2011. Sir Paul arranged for Mr Micek, the deputy head teacher of Robert Clack, to work at the Warren one day each week. Mr Micek had previous experience of working at a school in special measures. He became the Warren's associate head teacher from July 2013 and, following the departure of the Warren's former head teacher, the acting head teacher on a full-time basis from October 2013.
29. On 14 May 2013 Ofsted carried out a special measures monitoring inspection at the Warren. The inspection was the first monitoring inspection since the school became subject to special measures following the inspection in February 2013. Ofsted concluded, in a letter dated 15 May 2013, that the Warren's Action Plan and the Local Authority's statement of action lacked sufficient detail and were not fit for purpose. The report noted that

"One of the key recommendations in the inspection report of Ofsted of February 2013 was that an external review of governance should be undertaken. This has not happened. Instead the local authority has decided to make an application to the Secretary of State for the removal of the governing body and the appointment of an interim executive board (IEB). This has met with opposition from members of the governing body, particularly the Chair. Consequently the school's action plan and the local authority's statement of action present two very different views of governance and the manner in which the school's leadership is to be held accountable. …

The consequence of this disagreement is the lack of clarity on the part of the head teacher and senior leaders as to whom they are accountable. The governing body has not met with the monitoring panel, and the consultant head teacher has not seen the school's post-Ofsted action plan. This impasse is hindering the school's progress."

In the event, the local authority did not apply for an IEB and instead the existing governing body was augmented by appointing nine new governors, including three local authority members.

30. Both prior to and after this monitoring inspection there were discussions between the Department for Education and the Warren on the Secretary of State's expectation that the Warren would become an academy. In July 2013 the Secretary of State advised the governing body that in early September he intended to identify a proposed sponsor. The governors were invited to submit any views for consideration in advance. On 6 August 2013 the chair of the governing body wrote to the Secretary of State stating that the governing body was against an academy conversion, and that their view was that it would be best for the Warren to continue working with Robert Clack. On 7 August the Secretary of State replied explaining that he considered an informal partnership with Robert Clack would be less robust than a sponsored academy arrangement. On 15 August the Secretary of State put forward the Loxford School of Science and Technology ("Loxford") as the proposed sponsor for the Warren. It is located in the London Borough of Redbridge, approximately four miles from the Warren. In April 2013 Ofsted found the school to be outstanding in all areas. In July 2013 Loxford was approved as an academy sponsor.
31. On 2 and 3 October 2013 Ofsted carried out a second monitoring inspection at the Warren. In a letter dated 4 October 2013 the Inspector stated that the Warren was "making reasonable progress towards the removal of special measures", and that the local authority statement of action was now fit for purpose. The report attached to the letter noted that the provisional 2013 GCSE results showed a "dramatic rise" in the proportion of students obtaining five or more passes at grade C or above. This was "due mainly to a large improvement in English language grades, to above national averages". Standards had improved in other subject areas such as French, media and music. However, standards in English literature and science remained well below average. The report continued:

"Not enough students made expected progress in mathematics; standards declined in geography and dropped significantly in drama. The overall performance of students from White British backgrounds remained well below average, particularly in mathematics."

Despite the progress that had been made the report concluded that

"…the slow start caused by the inadequacy of the original statement of action, the variations in the 2013 examination results, and the improvements still required in teaching suggest that the school is more likely to take 24 months to come out of special measures, rather than the 16 months that the school's action plan states."

32. At a meeting on 24 October 2013 the First Claimant voted not to convert to an Academy school, but instead voted unanimously to remain maintained by the Second Claimant.
33. On 18 November 2013 Lord Nash, the Parliamentary Under Secretary of State for Schools, wrote to the Claimants informing them that the Secretary of State was minded to make an Academy Order in accordance with section 4(1)(b) of the 2010 Act and then to constitute the governing body of the Warren as an IEB in accordance with section 69 of and schedule 6 to the 2006 Act. The letter invited representations by 29 November 2013. In the event an extension of time was sought and granted.
34. The Claimants made representations in letters dated 3 December 2013. Representations were also made by Mr Cruddas MP, and Robert Clack in letters of the same date. The letter from the Claimants stated that the First Claimant had determined to enter into a "hard federation" with Robert Clack for a minimum of seven years. The letter from Robert Clack confirmed its commitment to a hard federation with the Warren. Their proposal contemplated that from March 2014 the governing bodies of the Warren and Robert Clack would federate to form one governing body. Sir Paul Grant would be the executive head teacher of both schools. The Warren would have its own head teacher (and Sir Paul would remain the head teacher of Robert Clack). On 6 January 2014 the proposal for a hard federation was put out to consultation amongst parents, staff and other community stakeholders. The result of the consultation was that of 107 responses received, 95% were in favour of a hard federation. Only 2% opposed it (and 3% sent spoilt votes).
35. On 6 January 2014 Lord Nash wrote to the Claimants to notify them that the Secretary of State had considered all representations he had received and he had decided that making an academy order and appointing an IEB was the best course of action for the school. Lord Nash stated that this letter was formal notice under section 69 of the 2006 Act that the Secretary of State intended to constitute the governing body as an IEB effective from 8 January 2014 and had made an academy order (a copy of which was attached) in accordance with section 4 of the 2010 Act. The letter continued:

"The Secretary of State has decided to make an Academy order and appoint an IEB as he remains of the view that The Warren faces serious challenges and that academy status with the support of a sponsor offers the best chance to bring about rapid and sustained improvements. In particular, he remains concerned about the school's history of under performance at GCSE and special measures Ofsted judgment in February 2013.

…

… He is also mindful of the fact that the overall increase in results is a recent development and it is unclear whether this will be sustained long term. It is clear that previous attempts to transform the school have not resulted in considerably improved performance over consecutive years.

…

Whilst it is acknowledged that the partnership with Robert Clack is resulting in some improvements and that federations can bring benefits to certain schools, it is not considered that a federation is a strong enough solution to The Warren. As outlined in my previous letter, sponsored Academy status brings a much greater degree of clarity in responsibility and accountability for ensuring improvements. As such, the Secretary of State is of the view that sponsorship offers the best option for securing the school's long term future.

…

The Secretary of State recognises the governing body of The Warren has been reconstituted since the February 2013 inspection and augmented with additional expertise. While such changes are welcome, he is of the view that the individuals whom the Secretary of State is appointing as IEB members bring greater educational knowledge and have particular experience of working with schools in special measures."

36. On 26-27 February 2014 Ofsted carried out a further monitoring inspection of the Warren. In a letter dated 3 March 2014 the inspectors concluded that the school was making reasonable progress towards the removal of special measures. The report stated that

"… while the school had made much better progress than was reported at the first monitoring visit in May 2013 and is clearly moving in the right direction, the school is not yet ready to be removed from special measures. Of paramount importance are this summer's examination results and the sustaining of improvements seen in teaching since October 2013 – particularly by catering better for all students' needs in lessons and also ensuring that the highest standards are expected and achieved in all classes."

37. Between 28 February and 11 April 2014 the First Claimant carried out a consultation as to whether the Warren should become a sponsored academy. Consultees were asked the question as to whether the Warren should remain a local authority maintained school in a hard federation with Robert Clack or become an academy with Loxford as its sponsor. Of the 431 responses received, 85% were in favour of the Warren remaining in local authority control and becoming a hard federation with Robert Clack, 15% were in favour of the school becoming an Academy.
38. By a decision letter dated 12 May 2014 Lord Nash informed the Claimants that the Secretary of State had decided that the Warren should become an academy sponsored by Loxford Academy Trust. The full reasons for the Secretary of State's decision are set out in a letter from Lord Nash to the Chair of the Governors, which was attached.
39. The letter stated that:

"In considering the best option for securing the long term future of the school and reaching a decision in favour of academy conversion, the Secretary of State has taken into account all relevant considerations. These include:

The outcomes from the governing body's consultation on whether the Warren should become an academy sponsored by Loxford Academy Trust, including the reasons for a particular view where given;

The proposal from Loxford Academy Trust setting out how they would improve the Warren as a sponsored academy, information relating to Loxford's experience and expertise, and evidence on the overall performance of sponsored academies;

The outcomes from the governing body's consultation on whether the Warren should form a hard federation with Robert Clack School;

The joint proposals from the Warren and Robert Clack governing bodies, setting out the reasons for a hard federation, and evidence on the impact of federation on under-performing schools;

The performance and Ofsted record of the Warren over the last ten years (2004-2014). In particular, the school's GSCE outcomes and the judgments and comments made by Ofsted in February 2013 and at monitoring inspections in May 2013, October 2013 and February 2014;

The local authority's support for the Warren over the last ten years;

The Secretary of State's duties and responsibilities under the Equality Act 2010."

40. The Secretary of State recognised that the clear majority of those responding to the consultation expressed a preference for the Warren to remain maintained by the local authority and to form a hard federation with Robert Clack. Whilst recognising that

"support from Robert Clack has delivered some improvements, [the Secretary of State's] view is that the priority now is to do what is required to offer the best chance of significant and sustained improvements at the Warren as soon as possible. With this objective in mind, he has taken account of the comments made by Ofsted in relation to the impact of Robert Clack's support for the Warren since the special measures judgment. … However, it is also significant that when Robert Clack has provided support to the Warren at other points during the last ten years, this has not resulted in significant and sustained improvement at the school."

41. The letter continued:

"The Warren has a history of underperformance with a significant proportion of pupils failing to achieve the minimum acceptable standard at GCSE on most occasions over the last ten years. During this period, the school has twice been judged to require special measures and has never been judged better than satisfactory by Ofsted. The Warren has received a considerable amount of support and funding from Barking and Dagenham Council, as well as from wider initiatives such as the London Challenge programme. It is extremely concerning that the standard of education at the Warren is once again inadequate despite concerted efforts and considerable resources being invested in the school."

42. The Secretary of State noted that a number of responses to the consultation questioned

"whether becoming an academy would improve the Warren and stated opposition to the expectation that where a school is judged to require special measures by Ofsted, conversion to academy status with the support of a strong sponsor will be the normal route to secure improvement."

43. The letter stated:

"However, the Secretary of State considers that there is convincing evidence that sponsored academies do succeed. Evidence from both exam results and independent reports show that sponsored academies are effective in raising standards and tackling historical underperformance. In recent years, results in sponsored academies have gone up at a faster rate than in all state funded schools. Analysis published by the Department for Education in 2012 shows that, between 2005/06 and 2009/10, the proportion of pupils achieving five good GCSEs including English and maths in sponsored academies improved by just over 21%. This is nearly double the rate of improvement seen nationally over the same period. Between 2012 and 2013, the proportion of pupils in sponsored secondary academies that achieved five good GCSEs, including English and maths, went up by 2.3%. This compares with a rise of 1.8% across all local authority maintained schools. In sponsored academies open for three years to summer 2013, the proportion of pupils that achieved five good GCSEs including English and maths has increased by an average of 12% since opening compared to a rise of 6% in all local authority maintained schools over the same period."

44. The letter stated that the Secretary of State had considered Loxford's experience and expertise in delivering school improvement. The Secretary of State noted that

"The chief executive of Loxford Academy Trust is an experienced head teacher with a track record of improving schools in special measures. She has been a senior leader of two secondary schools that were in special measures when she joined, both of which came out of special measures within twelve months. Loxford itself is experienced in supporting other schools to bring about improvements."

45. In relation to the Federation proposal, the letter stated:

"The Secretary of State has carefully considered the proposal for a hard federation with Robert Clack School.

…

The Secretary of State has considered the possible benefits and limitations of the Warren entering into a hard federation with Robert Clack, alongside the possible advantages and disadvantages of the Warren becoming an academy sponsored by Loxford Academy Trust.

…

The Secretary of state recognises that there is evidence which shows that where an underperforming school has federated with a stronger school in order to raise standards, federation has contributed to improved pupil outcomes and led to positive benefits in terms [of] teaching and learning, behaviour and achievement at the weaker school. The Secretary of State notes that this evidence is based on a small number of case studies whereas the evidence outlined above, in relation to improved results in sponsored academies, is based on validated data for all sponsored academies in England. The Secretary of State accepts that in this case, a federation would build on the support arrangements already in place at the Warren and the collaborative working which already exists between the Warren and Robert Clack. Evidence from Ofsted indicates that support from Robert Clack is having a positive impact at the Warren and has contributed to Ofsted's judgment that the school is making 'reasonable progress towards the removal of special measures'. However, given the wider context of historic under performance at the Warren, the Secretary of State does not consider that the progress the school has made since being judge to require special measures is such as to render the hard federation preferable, as a long term solution, to the option that the school converts to academy status.

The hard federation proposal states that the federated governing body would comprise an equal number of governors from the Warren and Robert Clack. Thus Robert Clack governors would not have control over ensuring improvements at the Warren and some responsibility would remain with the representatives of the Warren. Given the persistent under-performance of the Warren, the Secretary of State is not convinced that this arrangement will secure the improvement that the school so badly requires. The Secretary of State also notes that the federation proposal does not identify who the new governors will be or set out the knowledge and experience they will bring.

…

The Secretary of State has concluded that conversion to Academy status would better ensure long term stability and improvement at the Warren. In this regard he accepts that the governing bodies of the Warren and Robert Clack have stated that the federation will last for a minimum of seven years. However, regardless of the present intentions any federation can be dissolved at any point by the federated governing body following the statutory process."

46. The letter stated that

"By contrast, a sponsored academy arrangement rests on the funding agreement between the Secretary of State and the sponsor which is legally binding. Although the Secretary of State can terminate the agreement in certain circumstances (for example, in the event of unacceptable performance), there is no opportunity for a school to exit the arrangement with the sponsor. …

Under Academy arrangements Loxford Academy Trust (a sponsor) would be accountable. The Warren and Loxford School would be part of a single legal trust and there would be a direct line of accountability to the Secretary of State pursuant to the terms of the funding agreement. If concerns were to arise, the Secretary of State could intervene quickly in the school using his powers under the terms of the funding agreement."

47. The Secretary of State noted that

"some of those responding to the consultation raised concerns that a move to academy status would destabilise progress and unnecessarily distract pupils and staff".

The letter provided an assurance that

"The process of academy conversion has been developed to minimise disruption to pupils and staff. The sponsor will carry out the work to convert the school into an academy, and will work with officials from the Department for Education and from the local authority. In addition, in this particular case, it is likely that the majority of the work will be carried out over the summer holidays with a view to the school opening as a sponsored academy for the new academic year."

Grounds of challenge

48. Paragraph 9 of the amended statement of facts and grounds states that the Claimants advance the following grounds of review:

i) The Defendant erred in deciding to convert the Warren to an academy as he did so in reliance on a material error of fact, namely that the statistical evidence shows that sponsored academies are more likely to deliver attainment and improved progress in schools in need of intervention than maintained schools. There is no evidence to support that proposition (Ground 1);

ii) The Guidance is unlawful as it proceeds upon the basis of the same material error of fact (Ground 2);

iii) The decision to make an academy order and to appoint an IEB is unlawful as it proceeds upon the basis of the same material fact (Ground 3);

iv) In deciding to convert the Warren into an academy the Defendant failed to have any or any adequate regard to the level of disruption that will be caused; alternatively his conclusion that there would be no disruption was irrational (Ground 4);

v) The decision is premature and/or irrational (Ground 5).

49. At the oral hearing on 15 January 2014 Collins J refused permission to challenge the Guidance. The Claimants accept that and no longer pursue Ground 2.
50. Grounds 1, 3, 4 and 5 are new grounds of challenge. They were not part of the original judicial review claim. Accordingly the Claimants required permission to pursue these grounds. Effectively the amended grounds supersede the original grounds. This claim proceeds as a rolled-up hearing on the revised grounds.

The Parties' Submissions and Discussion

Grounds 1 and 3: material error of fact

51. The Claimants contend in the amended statement of facts and grounds (at para 52):

"The Defendant erred in law by asserting that there are statistics which demonstrate that sponsored Academies are more likely to deliver success in raising standards of schools requiring intervention than maintained schools. This was a fundamental error of fact, because there is no evidence to support that proposition."

Both grounds 1 and 3 of the challenge are based on the same alleged material error of fact.

52. The error of fact which is relied upon relates to the first main paragraph on the fifth page of the decision letter of 12 May 2014 (see para 43 above).
53. Ms Helen Mountfield QC, for the Claimants, accepts the accuracy of the statistics in that paragraph but submits that the comparison of rates of improvement in sponsored academies and all maintained schools does not compare like with like. The correct comparison is between rates of improvement in schools identified as requiring intervention. All schools which are or have been in special measures show a faster than average rate of improvement in comparison with "all schools", whether they are Academies or maintained schools. The rate of improvement by already high-achieving schools will be slower than for those schools that are under-performing.
54. Ms Mountfield submits that when the Department for Education's own proper comparison is made, the attainment of five A*-C GCSEs (or equivalents, including English and maths) at sponsored Academies is broadly similar to attainment at a group of similar non-academy schools.
55. Mr Herrington, Director of the Academies Group within the Department for Education, in his second witness statement states (at para 15) that the Secretary of State does recognise that the improvement in attainment seen in schools is related to their starting point, and in general, those with the lowest initial attainment will see the largest improvements. For this reason the Secretary of State has also produced and published data that compares the performance of sponsored Academies with similar local authority maintained schools. The first such comparison data was published in June 2012, when the Secretary of State published a research report entitled "Attainment at Key Stage 4 by pupils in Academies 2011", which analyses GCSE results for the academic year 2010-2011. In June 2013 the Secretary of State published similar data for the academic year 2011-2012. At paragraphs 16 and 17 of his second witness statement Mr Herrington sets out in summary what these documents demonstrate. Results in sponsored academies were marginally higher than in a group of similar local authority maintained schools.
56. In the light of that evidence Ms Mountfield does not suggest that there is no rational basis for the Defendant's assertion that sponsored academies do better and do it faster than similar local authority maintained schools (if the GCSE figures are taken at face value).
57. However, Ms Mountfield submits that the Defendant's analysis fails entirely to deal with the effect upon these figures of "counting" GCSE equivalents. Historically, some practical or vocational qualifications (such as National Vocational Qualifications (NVQs) and BTECs) have been counted towards determining whether a student has achieved five GCSEs at A*-C including English and maths, but the Defendant's position is that the use of such equivalents devalue the five A*-C including English and maths figures as a means of assessing relative rates of attainment. Indeed the Secretary of State has stated that from 2014 only a limited range of non-GCSEs will count as GCSE equivalents (and if they do count, will count for only one GCSE (see DfE, Press Release dated 31 January 2012 Performance Tables: only the highest quality qualifications to be included)). The press release includes a statement from the Secretary of State that "for too long the system has been devalued by attempts to pretend that all qualifications are intrinsically the same. Young people have taken courses that have led nowhere". Ms Mountfield observes that the evidence suggests that academies are heavier users of equivalent qualifications than other schools (see the National Audit Office report, The Academies Programme dated 10 September 2010).
58. The Claimants contend that such figures as are available indicate that if GCSE equivalents are stripped out, even the marginally higher levels of attainment indicated on the Defendant's figures would evaporate. In support of this contention Ms Mountfield refers to the DfE document Attainment at Key Stage 4 by pupils in Academies 2011 which contains in section 1 (Results in Sponsored Academies in comparison to a group of similar schools) the following analysis:

"Having started from a slightly lower base, results for pupils in Sponsored Academies were broadly the same as in a group of similar schools in 2011. Amongst the group of Sponsored Academies, 46.0% of pupils achieved 5+ A*-C including English and mathematics. In the group of similar schools, 45.7% of pupils achieved 5+ A*-C including English and mathematics.

If equivalent qualifications are excluded, results in Sponsored Academies were lower than in a group of similar schools. Amongst the group of Sponsored Academies, 32.6% of pupils achieved 5+ A*-C including English and mathematics (excluding equivalent qualifications). In the group of similar schools, 35.6% of pupils achieved 5+ A*-C including English and mathematics (excluding equivalent qualifications)."

59. The Claimants note that in 2011 the Defendant did not undertake the analysis of the comparative rates of progress with equivalents stripped out. Further, when the DfE repeated the statistical exercise in 2012 (see DfE, Attainment by pupils in Academies 2012), it did not undertake the analysis of comparative attainment without equivalents.
60. Ms Mountfield formulates her legal submissions in relation to the material error of fact that the Claimants contend the Defendant made in various ways. First, having identified statistical evidence of rates of progress as a material relevant factor in deciding whether the prefer an academy or non-academy sponsor for the Warren, the Secretary of State has failed to make adequate enquiries into what the statistics show, contrary to the Tameside principle (see Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, in particular Lord Diplock at 1065B). Second, where a public body makes a material finding of fact which is unsupported by any evidence, or upon a view of the evidence that it could not reasonably hold, that amounts to an error of law. To misunderstand material statistics is an error of law (see R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, and R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin), per Moses LJ at paras 42 and 45-46). Third, the Secretary of State behaved unfairly because he proceeded on a fundamental misunderstanding of the true factual position in the manner identified by the Court of Appeal in R (E) v Secretary of State [2004] QB 1044 at para 61-66 as applied in R (Lunt) v Liverpool City Council [2010] 1 CMLR 14 at paras 43-44. The Secretary of State did not "properly understand the problem, its degree and extent", as he failed to analyse the different attainments and rates of progress of the two types of school on a rational basis, i.e. comparing sponsored academies and similar schools once equivalent qualifications have been stripped out.
61. To further support the Claimant's contention as to the effect of "counting" GCSE equivalents Ms Mountfield applied at the outset of the hearing to admit in evidence a second witness statement from Mr Stewart dated 23 June 2014. The explanation that was given by Ms Mountfield for the lateness of the witness statement was that it was in response to the second witness statement of Mr Herrington dated 17 June 2014. The application was opposed by Mr Jonathan Swift QC, for the Defendant.
62. Mr Stewart states in his witness statement that on 25 January 2014 he made a request under the Freedom of Information Act 2000 to the Department for Education for analysis carried out on the effect of the changes to be made from 2014 on the measurement of five GCSE (or equivalent) at A*-C (including English and maths). These are the changes resulting from the report in 2011 by Professor Alison Wolf ("the Wolf measures"). The DfE responded on 5 March 2014. At paragraph 6 of his witness statement Mr Stewart states that he has used the data provided by the DfE to calculate the attainment and progress of sponsored Academies if the Wolf measures were applied.
63. The Claimants had raised the issue of excluding non-GCSE equivalent qualifications for the purposes of conducting a proper comparison in their amended statement of facts and grounds (at para 57, and also see the second witness statement of Ms Jenner, Director of Children's Services for the Second Claimant, dated 2 June 2014 at paras 23-25).
64. The second witness statement of Mr Stewart does not state that it is made in response to the second witness statement of Mr Herrington. The late service of the witness statement is in breach of the order of Collins J of 17 April 2014 (see paras 5-7). In any event it could and should have been served sooner. Mr Swift has indicated that if it is admitted in evidence, the Secretary of State would wish to reply to it.
65. In my view no satisfactory explanation has been given for the late service of Mr Stewart's second witness statement. Accordingly I refuse the application to admit it in evidence.
66. Responding to the Claimants' case, Mr Swift first makes the point, accepted by Ms Mountfield, that the statistics set out in the paragraph in the decision letter of 12 May 2014 (see para 43 above) are accurate. It is clear that they relate to a comparison between sponsored academies and "all local authority maintained schools". That being so, Mr Swift submits, it cannot be said that there was any factual error, let alone one that amounts to a material error of fact.
67. Mr Swift accepts that when answering the consultation, responses to the question as to whether becoming an academy would improve the Warren, comparing rates of improvement in sponsored academies and all maintained schools does not compare like with like. The better response, he says, to this point would have been a comparison between rates of improvement in schools identified as requiring intervention. However, the Claimants now accept, in the light of the evidence set out in Mr Herrington's second witness statement (at para 55 above) that when only GCSE results are included the statistics do provide a rational basis for the assertion that sponsored academies have a higher rate of attainment and progress than similar local authority maintained schools (see para 56 above).
68. That being so, the single point that remains on Grounds 1 and 3 is Ms Mountfield's submission that these figures do not, in fact, provide a rational basis for that assertion that sponsored academies do better than similar local authority maintained schools because the Defendant's analysis fails to deal with the effect upon these figures of "counting" GCSE equivalents.
69. Mr Herrington considers (at paragraph 21(2) of his second witness statement) this criticism for not excluding "equivalent" qualifications from the data set. He states that:

"It is important to recognise that the similar schools analysis was carried out in respect of GCSE results for the academic years ending 2011 and 2012. At this time, sponsored academies, as all other schools, were responding to the accountability framework that was in place at the time. In summer 2014, that accountability framework will change and the secondary school performance tables will be revised so that a number of qualifications will no longer be regarded as equivalent to a GCSE. However, this change has not yet come into effect, and for the academic years 2011 and 2012, qualifications equivalent to GCSEs were, and indeed still are, a valid measure of a school's performance. The overall headline measure of secondary school performance used by the Secondary Schools Performance Tables is the percentage of pupils achieving 5+ GCSEs (or equivalent qualifications) at grades A*-C including English and maths."

70. Ms Mountfield's response is two-fold: first, whether becoming a sponsored academy is more likely to raise standards at the Warren or not is a forward-looking question, not one that can be answered by reference to statistics produced in an accountability framework that is due to change; and second, in any event, it is irrational for the Secretary of State when answering that question to rely on statistics that include equivalents which in his view devalue the figures as a means of assessing relative rates of attainment.
71. However it does not follow, in my view, from the fact that in summer 2014 the accountability framework will change, and from 2015 equivalent qualifications will be excluded from the data, that the Secretary of State is not entitled to have regard to statistics produced on the current basis.
72. It may be that the purpose of the change that is to be introduced is to wean schools away from offering equivalent qualifications, but at present pupils at schools in special measures do undertake equivalent qualifications. That being so, in my view, it is not irrational to include in the statistics figures relating to how schools perform in relation to results for those qualifications. The Secretary of State cannot be required to disregard that data at the present time, whatever he has said he will do in the future.
73. The statistics quoted are examples. As Mr Herrington states in his second witness statement there is a significant body of evidence that demonstrates how sponsored academies are performing, the improvements that are being made, and the benefits that they bring (para 10; and see paras 11-17). Mr Herrington says (at para 18) that

"the 2011-2012 academic year is the last year for which data comparing performance of sponsored academies and a similar group of local authority maintained schools is available. After this date, so many under-performing secondary schools are converted to sponsored academies that the pool of similar local authority schools is now too small to permit accurate matching. The Secretary of State is considering new potential methodologies to draw the previous comparisons, but at present, the only available data for the academic year 2012-2013 is the Secondary School Performance Tables (published 3 January 2014) which compares sponsored academies to all state-funded schools."

There are many different ways in which progress, improvement and attainment can be analysed; and indeed Mr Herrington observes that the Secretary of State has analysed the data in a number of ways (para 19). I accept Mr Swift's submission that using one comparison over another does not establish that a different comparison amounts to a factual error, let alone a material error of fact so as to render a decision unlawful in public law.

74. Indeed, Mr Swift submits, and I agree, that in the light of the evidence set out in the first and second witness statements of Mr Herrington, the Claimants' contention that there is no evidence that sponsored academies are more likely to deliver attainment and improve progress in schools in need of intervention than maintained schools cannot be sustained.
75. In my judgment Grounds 1 and 3 are not made out.

Ground 4: failure to have any or any adequate regard to disruption and/or irrationality

76. Ms Mountfield submits that in effect, the decision of 12 May 2014 was based on the irrational premise that there would be no significant disruption caused by severing the link with Robert Clack and converting the Warren to part of the Loxford Academy Trust. The Claimants contend that the change to Academy status would have an immediate impact on the stability of the relatively new senior leadership team at the Warren. It is inherent in conversion to an Academy that the current management team will be replaced en bloc by new members of staff who have no prior knowledge or experience of the Warren. This will be disruptive and is likely to set back the Warren's progress out of special measures. Ms Jenner in her second witness statement states that the process of converting to an Academy causes disruption in a school as demonstrated by a number of Ofsted reports (para 69); and it is the Second Claimant's own experience that forced Academy conversion leads to a loss of staff (para 70).
77. Ms Mountfield submits that the decision letter fails to consider this at all, other than to note that it will take place over the summer holidays; nor does it consider the extent of the disruption likely to be caused by the total replacement of the new governing body or the disruption likely to be caused by the sudden removal of the local authority assistance presently being provided.
78. In my view it is clear that the Secretary of State had regard to concerns raised about possible disruption to staff and pupils if the Warren converted to academy status. The decision letter refers to the fact that the Secretary of State noted concerns about disruption raised by some of those responding to the consultation, and states: "I want to assure you that the process of academy conversion has been developed to minimise disruption to pupils and staff". I reject Ms Mountfield's criticism that the decision letter only considers the issue of disruption in generic terms, and that the Secretary of State did not look at the issue by reference to the facts of this particular case. The letter states that "in this particular case, it is likely that the majority of the work will be carried out over the summer holidays with a view to the school opening as a sponsored academy for the new academic year". Further, the Secretary of State noted that Loxford had no present relationship with the Warren, but he did not consider that this will impede the achievement of prompt improvement.
79. In his second witness statement (para 46) Mr Herrington states:

"The Secretary of State was confident that the long term benefits from the academy conversion would outweigh any negative short term disruption. … The Claimants focus disproportionately on three members of the senior leadership team. These three individuals have been in their roles for around 9-12 months and so are not long-established members of staff with long-standing relationships with pupils, parents and employees. … [The] Warren has approximately 150 employees and, all employees will have the option for their employment to be transferred to the Academy Trust."

Mr Herrington adds (at para 47):

"…even if a federation was adopted, there can be no guarantee that the acting head teacher would continue as the position of head teacher should be advertised nationally, with the current secondee being free to apply and judged on merit alongside other candidates."

80. Mr Swift observes that there is no dispute that there were only two options for the Warren, either to go the federation route with Robert Clack, or to go the Academy route with Loxford. I am left in no doubt that for the reasons given by the Secretary of State at length in the decision letter of 12 May 2014 he was entitled to take the decision that he did. He appreciated that it is likely there will be some disruption during the process of academy conversion, but he considered that Loxford will appropriately manage the process in order to minimise any such disruption. That was a conclusion that, in my view, he was entitled on the evidence to reach, in particular having regard to his conclusion that conversion to academy status would better ensure long-term stability and improvement at the Warren.

Ground 5: prematurity/irrationality

81. The Claimants contend that the decision to convert the Warren to an academy is premature and/or irrational, having regard to a number of factors. First, and most importantly, Ms Mountfield submits that the last two Ofsted monitoring inspections (October 2013 and March 2014) have shown that the Warren is moving in the right direction but that Ofsted wants to see that the present trajectory is sustained prior to removal from special measures, which cannot be demonstrated until the results of this summer's GCSE examinations are known in August 2014. Ms Jenner in her second witness statement (at para 37) comments that "Forcing the Warren to convert to an Academy prior to these results being received denies the Warren a chance to show that the 2013 results (which are better than 20% of the sponsored Academies in London) will be sustained".
82. Other factors relied upon by the Claimants in support of this ground are the disruption that will be caused to the senior leadership team (and therefore to staff and pupils) by conversion to an Academy; the strength of feeling among consultees against the Warren converting to an Academy; and the length of time it took the Secretary of State to take steps towards converting the Warren to an academy from 8 February 2013 when the school was placed in special measures.
83. In the light of these factors Ms Mountfield submits that it is premature and/or irrational not to wait until either the GCSE results come out and/or the Ofsted report in autumn 2014 to see whether the Warren is sustaining the progress it has now made.
84. However, Ofsted has given no guarantee that the Warren will be removed from special measures at the next monitoring visit, nor has it guaranteed that the school will be removed from special measures if exam results improve. In the report on the third monitoring inspection on 26/27 February 2014 Ofsted stated:

"While the school has made much better progress than was reported at the first monitoring visit in May 2003 and is clearly moving in the right direction, the school is not yet ready to be removed from special measures. Of paramount importance are this summer's examination results and the sustaining of improvements seen in teaching since October 2013 – particularly by catering better for all students' needs in lessons and also ensuring that the higher standards are expected and achieved in all classes."

The e-mail from Ofsted to Ms Jenner on 28 April 2014 merely states that it is "possible" for the school to be removed from special measures in autumn 2014 (see Mr Herrington's second witness statement at paras 25-26). At the present time the school remains in special measures. The Secretary of State was aware of the improvement in the 2013 GCSE results, but the results still remain below the overall national average, and progression in mathematics remains significantly below average. In my view the Secretary of State was entitled to conclude that the persistent under-performance of the Warren meant that steps should be taken without further delay to bring about a long-term sustainable improvement. He had regard to the concerns about disruption (see paras 78 to 80 above); and he was entitled to take a different view to those who responded to the consultation.

Conclusion

85. I consider grounds 1 and 3-5 set out in the amended statement of facts and grounds to be arguable, and I grant permission to challenge the Secretary of State's decisions of 6 January and 12 May 2014 on those grounds. However, for the reasons I have given, this claim fails.