England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/11/2005

Mr Justice Lloyd Jones:

1. I delivered judgment in this action on Tuesday 25th October 2005. At my request counsel for the Claimant and the First Defendant have provided written submissions on one outstanding issue and on the terms of the proposed order. This is my judgment on those further matters.

The Date on Which the New Voluntary Aided School Came into Existence

2. The Claimant seeks a declaration that the Avenue School ("the School"), as a voluntary aided institution, came into existence on 1^st April 2005 and that it has been a voluntary aided institution since that date. This is opposed by the First Defendant on the ground that as a matter of fact the School has not to date operated as a voluntary aided school.
3. On 28th May 2004 the trustees published a statutory notice proposing that the School should acquire voluntary aided status. That stated in relevant part:-

"Notice is hereby given in accordance with section 28(2) of the School Standards Framework Act 1998 that FED 2000 intends to establish a new Voluntary Aided Primary School for 160 boys and girls between the ages of 5 and 11 years from 1 April 2005."

4. On 13th December 2004 the local education authority executive agreed to approve the voluntary aided status of the School from 1^st April 2005. The proposal was approved by the School Organisation Committee on 20^th December 2004.
5. There is no provision in the School Standards and Framework Act 1998 which expressly provides that as from the agreed date for the implementation of the proposals the School attains voluntary aided status. Nevertheless, this was clearly the intention of the parties and is entirely consistent with the statutory scheme. If the First Defendant were correct in its submission that the School does not achieve voluntary aided status until the proposals are in fact implemented, it would permit a party in the position of the First Defendant to postpone indefinitely the acquisition of the new status by a refusal to implement the proposal. Moreover, if the acquisition of the new status were to depend on the extent of implementation it could be extremely difficult in many cases to say precisely when that new status was acquired.
6. Mr Hyams for the First Defendant relies on a number of statutory provisions in support of his argument. First he relies on Schedule 6, paragraph 5 of the 1998 Act which provides that where proposals have been approved the proposals "shall be implemented, in the form in which they were so approved or determined, in accordance with Part III of this Schedule." This imposes an obligation to implement but lends no support to the argument that until the proposals have been implemented the new status is not acquired. Secondly, he relies on Schedule 6, paragraph 14(1) which states that that paragraph applies to proposals relating to a voluntary aided school or a proposed such school. This provision allocates the responsibility for implementation among various bodies. It casts no light on when the status of voluntary aided school is acquired. Thirdly he relies on section 34, Education Act 2002 and Regulations 21 and 29 of New Schools (General) England Regulations 2003. Section 34(5) provides that Regulations may make provision with respect to the exercise of certain powers by a temporary governing body before the school opening date. Section 34(9) provides:-

"In this section "school opening date", in relation to a new maintained school, means the date when the school first admits pupils. "

Regulation 21 governs the composition of the temporary governing body of a proposed voluntary aided school. Regulation 29 defines "proposed school" for the purposes of Part 6 of the Regulations as "a school which has not yet opened for which there is a temporary governing body constituted in accordance with arrangements under section 34 of the 2002 Act."

I note that this definition is for the purposes of Part 6 of the Regulations only. These provisions contemplate that a temporary governing body will function before the school has opened. It does not follow from these provisions that the school cannot attain the status of a voluntary aided school before it opens.

7. I consider that under the statutory scheme a school attains voluntary aided status at the date stipulated in the proposal adopted by the local education authority executive and the School Organisation Committee, in the absence of any deferral by the School Organisation Committee pursuant to Schedule 6 paragraph 5 of the 1998 Act. In the present case the School Organisation Committee declined to modify the proposals which had been adopted. Accordingly, I conclude that the School attained voluntary aided status on 1^st April 2005.
8. I would add that this was, at least initially, the understanding of all the parties concerned. In particular, this was the understanding of the parents of the pupils at the School who are likely to have made their arrangements in accordance with this understanding.
9. The effect of this ruling is that the Claimant will be required to make available in accordance with its usual practice for maintained school funding, the full sum of £579,341 for the funding of the School as a voluntary aided school for the entire year 1^st April 2005 to 31^st March 2006. Furthermore, parents of pupils at the School who have paid fees to the school for the education of their children in respect of any period beginning on or after 1^st April 2005 will be entitled to a refund from the First Defendant.

Lease of the School's Premises

10. During the hearing on 24^th and 25th October 2005 it became apparent that on 3rd October 2005 the First Defendant had told Elrahma that it intended to surrender the lease of the School premises. No satisfactory reason was given by the First Defendant for having taken, in advance of the hearing, this step which could have very serious consequences for the future of the School. Furthermore, the parents of pupils at the School and the Claimant had not been informed that this had taken place.
11. As a result, I granted interim relief in the form of an order restraining the First Defendant from surrendering or terminating the lease until 1^st November 2005 or further order. On 2nd November 2005 I extended that relief until 4th November 2005 or further order. The Claimant now asks that this relief be extended until 16th January 2007, the date on which the lease expires, with permission to the First Defendant to apply to the Court for a variation or discharge of the Order. This is opposed by Mr Hyams on behalf of the First Defendant.
12. First, Mr Hyams complains that Mr Oldham, counsel for the Claimant, had submitted during the course of the hearing that this was not a case concerning trust property. He complains that Mr Oldham now seeks to blow hot and cold. There is nothing in this point. The Claimant and its counsel were not informed of this development until late . on 24^th October. The Claimant is not in any way impeded by its earlier position from seeking appropriate relief in relation to this changed factual situation.
13. Secondly, Mr Hyams contends that the inclusion in these proceedings of issues relating to the lease of the School premises brings the action within the scope of section 33 of the Charities Act 1933 and that the proceedings cannot continue without the permission of the Charity Commissioners. I reject this submission. I have considered the meaning of "charity proceedings" in section 33 of the 1993 Act in my preliminary ruling in this case. For the reasons there stated I consider that these are not "charity proceedings". The proceedings are not brought to secure the proper exercise by charitable trustees of their functions as such in relation to trust property or to secure the proper administration of the charity. Rather they are adverse to the charity and merely seek to enforce obligations arising in public law as a result of the arrangements made by the trustees with the Claimant. The application by the Claimant for injunctive relief to prevent the trustees from terminating or surrendering the lease of the School premises, conduct which would be likely to frustrate the arrangements made by the trustees with the Claimant under the 1998 Act, does not affect this analysis.
14. Thirdly, Mr Hyams admits that the First Defendant is now required by Elrahma to pay a market rent for the School premises and that it lacks the financial resources to pay a market rent. This is a matter which will have to be considered by the Claimant and the First Defendant in the light of my conclusion that the School attained voluntary aided status on 1^st April 2005 and the financial consequences which flow from that conclusion. However, at this time I am satisfied that it is necessary for the Court to act so as to preserve the possibility of the School continuing to occupy the premises for the remainder of the lease and so as to prevent any attempt to defeat the orders of this Court. The First Defendant will be sufficiently protected by the grant of permission to apply to the Court to vary or discharge the Order.
15. I make an order in the terms annexed hereto.
THE QUEEN on the application of THE LONDON BOROUGH OF BRENT and (1) FED 2000 (a Board of Trustees of the formerly independent school, The Avenue School) (2) THE TEMPORARY GOVERNING BODY OF THE A VENUE SCHOOL ORDER

Subsequent to the making of the agreed interim order in the terms submitted to the Court on 28th October 2005

And upon the parties having made written submissions as to the terms of the final orders to be made, replacing all prior orders in the proceedings

IT IS ORDERED THA T:-

16. The application for judicial review against the First Defendant be allowed.
17. The First Defendant implement the proposals to establish a voluntary aided school ("the School") referred to in the notice of 28^th May 2004 issued by the First Defendant under section 28 of the School Standards and Framework Act 1998.
18. There be a declaration that the School came into existence as a voluntary aided school on 1^st April 2005, and has been such a school since then.
19. (i) The First Defendant, whether by itself or others, be restrained from:-

(a) removing from, or failing to admit to, the roll of the Avenue School, Brent or

(b) otherwise discriminating howsoever against

any child by reason that school fees have not been, and/or will not be, paid on his or her behalf; and

(ii) the First Defendant will reinstate to the school roll any child whose name has been removed from it for such reason since 1^st April 2005, should that child's parents or guardians so wish.

20. The First Defendant whether by itself or others be restrained until 16th January 2007 from surrendering or terminating the lease, dated 17^th January 2002, of premises known as 5-7 The Avenue and 1A Brondesbury Park, London NW6.
21. The First Defendant's application for permission to appeal be refused.
22. The First Defendant pay the Claimant's costs of and relating to this action, including (for the avoidance of doubt) the application for interim relief before Tugendhat J, in an amount to be assessed if not agreed.
23. The application for judicial review against the Second Defendant be dismissed.
24. The parties have permission to apply on notice to the other party to vary or discharge any part of this Order.

4th November 2005