Elphinstone, R (on the application of) v City of Westminster & Ors

This is the judgment of the court. The appellant, Mrs Elphinstone, is the mother of three children who used to attend Pimlico Community School (the “School”) until its recent closure (in the statutory language “discontinuance”) by the City of Westminster (the “Council”). The appellant seeks to challenge the decision of the Council dated 17 March 2008 by which it resolved to discontinue the school with effect from 31 August 2008. That decision was subject to the Secretary of State for Children, Schools and Families (the “Secretary of State”) and Future Academies (“Future”) agreeing to establish a new Academy, the Pimlico Academy (the “Academy”), on the School’s site as a replacement for the School. The respondent Council is joined in opposition to the appellant’s challenge by the Secretary of State and Future as interested parties ( together the “respondents” ).

The application for permission to apply for judicial review was considered on the papers by Cranston J on 24 April 2008. He refused permission. The appellant renewed her application for permission on 25 April 2008 and the matter then came before Mr Kenneth Parker QC, sitting as a deputy judge of the High Court (the “judge”). He again refused permission by his judgment dated 28 May 2008. The appellant then sought and obtained permission to appeal from this court: by his order dated 1 July 2008, Laws LJ granted permission to apply for judicial review and retained the substantive hearing of that application in this court.

The matter came on for hearing on 24 July 2008. In the circumstances, and because a decision was required at very short notice, we gave our decision, refusing the application for judicial review, immediately on that day, while reserving our reasons. This judgment now sets out those reasons.

The appellant’s complaints were essentially twofold. She submitted first, that at the time of its decision the Council lacked the necessary information on which to act, both in terms of the statutory requirement for “details” and in terms of reliability. The same point was made as vitiating the statutory consultation which had taken place. Secondly, she submitted that just before the end of the process which concluded in the Council’s decision there had been a volte face in relation to the question of the use of “banding” as part of the admissions policy of the new Academy, and that this vitiated both the consultation exercise and the decision itself.

Mr David Wolfe, who has appeared on behalf of the appellant here and before the judge, has emphasised to us that, contrary to the judge’s view, this was not a rationality challenge. He did not submit that the Council’s decision was irrational, but rather that it was unlawful as a matter of process.

In our judgment, this application fails essentially for the reasons given by the judge, [2008] EWHC 1287 (Admin). Indeed, our debt for his careful and lucid judgment will be obvious, and is gratefully recorded here. We would incorporate the sections of his judgment (at paras 3/18) dealing with the relevant legislative and factual backgrounds. This enables us to deal with those aspects more briefly here.

In November 2006 the School was inspected by Ofsted, which decided that the School should be put into special measures because it was failing to give its students an acceptable standard of education. In consequence on 1 March 2007 an interim executive board was appointed to replace the governing body of the School. The board was required to consider potential options for the future governance of the School. After the judgment below, and following a further inspection on 10/11 July 2008, Ofsted decided to remove the School from special measures. The acting head teacher, imported from another school on a temporary basis for the purpose of the special measures, reported that Ofsted was impressed with the transformation since its original inspection and that the School was “on a secure footing to embark on the next stage of its journey”. By then the decision to replace the School with an Academy had been taken.

The history of that decision is briefly as follows. A consultation exercise (not the one with which we are here concerned) between the Council and the interim executive board concluded on 25 May 2007 with a report prepared by the Council’s Director of Schools and Learning. At a meeting of the Council’s Children and Young People Oversight and Scrutiny Committee on 6 June 2007 that Committee heard oral representations from various stakeholders in the School. The Committee met again on 20 June 2007 and thereafter reported on its recommendations to the Council’s cabinet.

On 8 July 2007 the cabinet met and resolved to pursue academy status. By a further report dated 15 October 2007 the Director of Schools and Learning proposed that the charity Future be selected as sponsor. Appended to that report was a draft Expression of Interest, an important document in which the prospective sponsor of an academy provides information about its proposals. The cabinet considered that report and on the same day resolved to authorise agreement on a final Expression of Interest and also that a legally binding agreement on a properly “comprehensive” admissions policy be entered into with Future. The nature of that agreement is the subject matter of the appellant’s second main ground. The Expression of Interest was accepted by the Secretary of State and signed on 16 October 2007.

On 29 October 2007, the consultation with which we are concerned, that is to say the first stage of the statutory process which has to be gone through if a school is to be discontinued, began. This included a public meeting at the School and the distribution of some 55,000 leaflets. The consultation period closed on 7 December 2007. There were 85 written responses, the great majority of them hostile to the idea of an Academy replacing the School. By a report dated 18 December 2007 the Director of Schools and Learning reported on the statutory consultation exercise and asked the responsible cabinet member, Sarah Richardson, to consider the responses to it.

The next stage in the statutory process was for the publication of a formal statutory notice under which proposals for discontinuance are made. It is in response to such a notice that representations may be made, which the local education authority concerned must consider. Ms Richardson resolved to publish the notice proposing the discontinuance of the School on 3 January 2008 and it was published on the same day. The period for making representations in relation to the notice ended on 15 February 2008. No complaint is made in relation to the statutory notice.

17 March 2008 was the date of the decision here under challenge. On that day the Director of Schools and Learning presented his report concerning the proposed closure of the School. Among the numerous appendices to it were the final version of the Expression of Interest and a draft memorandum of understanding (“MOU”) between the Council and Future relating to admission arrangements. We will need to refer to the details of this further below. Although the Director’s report was dated 17 March 2008, it and its appendices were available on the Council’s website on 7 March.

The cabinet’s decision on 17 March 2008 was to approve the proposal to discontinue the School with effect from 31 August 2008 subject to the Secretary of State entering into a funding agreement with Future by that date approving the establishment of the Academy on the same site with effect from 1 September 2008.

On 10 April 2008 the Secretary of State signed the funding agreement with Future. Because it was envisaged that Future would sponsor more than one academy, the funding agreement was in the form of a master agreement together with a supplemental agreement relating to the Academy. Those agreements, whether in draft or final form, were not available to consultees until after the decision under challenge was taken. However, there was at all relevant times available on the departmental web-site a “model” funding agreement, i.e. a generic template for funding agreements. This model funding agreement does not appear to have been provided directly to consultees and the Secretary of State, although relying on it in summary grounds of resistance, does not seek to argue that it had particular relevance to this dispute.

The Education Act 1996 distinguishes between schools which are “maintained” by a local education authority, such as the School itself, and “independent” schools which are not. Aspects of maintained schools, such as governance and curriculum (the national curriculum), are controlled and are the subject of detailed provision by statute (see also the School Standards and Framework Act 1998 and the Education Act 2002). Academies are a species of independent school dealt with separately: see section 482 of the 1996 Act. They are set up under contract between the Secretary of State and a sponsor, after consultation with the local education authority concerned. Section 482(2) provides however that academies must agree to provide a curriculum “satisfying the requirements of section 78 of the Education Act 2002, but with an emphasis on a particular subject area, or particular subject areas, specified in the agreement” and to provide education “for pupils of different abilities who are wholly or mainly drawn from the area in which the school is situated”. Section 78 of the 2002 Act, which states the general requirements for the curriculum of maintained schools, requires a balanced and broadly based curriculum which promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society and prepares pupils at the school for the opportunities, responsibilities and experiences of later life. The contract under which an academy is established is called a funding agreement.

The discontinuance of schools is governed by the Education and Inspections Act 2006 and the School Organisation (Establishment and Discontinuance of Schools) (England) Regulations 2007 (the “2006 Act” and the “2007 Regulations” respectively). The statutory scheme (see sections 15 and 16 and Schedule 2 of the 2006 Act) is that where a local education authority proposes to discontinue a maintained school, it must (1) consult and in doing so have regard to any guidance given by the Secretary State, (2) publish formal proposals on which representations may be made, (3) consider whether to approve the proposals, at which time it must again have regard to the Secretary of State’s guidance. That is what happened in the present case (see above). The issue is whether there was any material flaw in the process.

The 2007 Regulations govern the manner in which the statutory proposals must be made. Regulation 14 of the 2007 Regulations provides that discontinuance proposals must contain the information specified in Schedule 4, and regulation 15 makes further provision about how certain details from the proposals, as specified in Part 7 of Schedule 5, must be published. Among the information which the proposals must contain (as set out in Schedule 4) is the following to which Mr Wolfe has drawn particular attention:

“Displaced Pupils

At the point of decision, the local education authority is empowered to reject the proposals or to approve them, and in the latter case to do so either without modification or with such modifications as it thinks desirable. Approvals may also be conditional on the happening of other events, in which case a date must be specified for the occurrence of that event (regulation 20 of the 2007 Regulations). Of particular relevance in the present case is regulation 20(m) which allows for the condition of the making of an academy funding agreement under section 482 of the 1996 Act. That is what happened here, when the Council made its approval of the discontinuance of the School conditional on the making of a funding agreement with Future by 31 August 2008.

The Secretary of State has published guidance set out in a document called Closing a Maintained Mainstream School, A Guide for Local Authorities and Governing Bodies (the “Guide”). It contains both statutory and non-statutory guidance, the former identified by shading of the relevant passages. The statutory guidance relating to consultation iscontained in paras 1.2 to 1.6 of the Guide. For present purposes the following is relevant:

“1.2

The Secretary of State considers that those bringing forward proposals should consult all interested parties. In doing so they should:

…

• provide sufficient information for those being consulted to form a considered view on the matters on which they are being consulted;

1.3

Where, in the course of consultation, a new option emerges which the proposers wish to consider, it will probably be appropriate to consult afresh on the option before proceeding to publish proposals.”

There is also statutory guidance relating to the later, post statutory notice, decision making process, as follows:

“4.16

The following factors should not be taken to be exhaustive. Their importance will vary, depending on the type and circumstances of the proposals. All proposals should be considered on their individual merits…

EFFECT ON STANDARDS AND SCHOOL IMPROVEMENT

…

It is also relevant to cite para 4.33, under the headings “NEED FOR PLACES” and “Provision for Displaced Pupils”:

“4.33

The Decision Maker should be satisfied that there is a sufficient capacity to accommodate displaced pupils in the area, taking into account the overall supply and likely future demand for places. The Decision Maker should consider the quality and popularity with parents of the schools in which spare capacity exists and any evidence of parents’ aspirations for those schools.”

It is convenient here to say something further about the nature and function of the Expression of Interest document (“EOI”), as described in the Secretary of State’s Guidance Notes for Sponsors and Local Authorities (“Guidance Notes”). It does not appear, however, to have statutory underpinnings. The Guidance Notes describe how the EOI “forms one part of the process of establishing an Academy, which is laid out in detail in Establishing an Academy: An Overview for Sponsors”. The EOI is concluded at a stage prior to the so-called “feasibility” stage, ie the stage when a decision is made about whether the project should proceed. That is the stage at which, where the discontinuance of a school is involved, statutory consultation and the decision of the local education authority are required. The Guidance Notes read in relevant part:

“The EOI form is not a contract and signatures are required at the end only to show the agreement of all parties to the information and arguments laid out within it. Equally, the approval of an Academy project to pass into the Feasibility stage does not necessarily mean that the Academy will go ahead. The Feasibility stage provides an opportunity to consult on the Academy proposal and a chance to explore in detail the information and ideas set out in the EOI. Only if and when this process is completed satisfactorily can the Funding Agreement be signed…

It is also convenient here to set out a leading statement of what is required of proper consultation under common law. It is reflected in the statutory guidance contained in the Guide. Thus in R v. North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213 at 258, Lord Woolf MR said:

“To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.”

In his grounds of appeal Mr Wolfe submitted that the Council lacked the “required” information and the consultees lacked “sufficient” information about the Academy, both in terms of that information’s content and reliability, to render either the former’s decision or the latter’s consultation lawful and effective. In the course of argument this became known as the “details” ground.

Mr Wolfe acknowledged that he had no complaint about the adequacy or effectiveness of the statutory notice of proposals, and affirmed that he had no case questioning the rationality of the Council’s decision. He criticised the judge for thinking that he did have such a case. In the circumstances there was some difficulty in pinpointing what exactly was missing, which permitted an adequate statutory notice and a decision which was not criticised for its irrationality to involve a defective process and a decision which could not stand. It seems, however, that there were two main strands to this first ground: one was that, in reliance on P v. The Schools Adjudicator [2007] LGR 346 (Admin) (Wilkie J, 26 July 2006, “P”), it was submitted that without at least a draft funding agreement in specific and not merely model form (ie in a form which addressed this particular Academy) together with some assurance that there would be no material change before signature, the information available both to decision-makers and to consultees was inadequate; and the other was that the 2007 Regulations required “details” of the Academy which went beyond what was available. That still left the question, what was missing? Mr Wolfe when pressed on this was willing to test that question by reference to the issues of governance and curriculum. His written submissions went somewhat wider than those two areas, but before this court, as before the judge, Mr Wolfe was willing to test the matter by reference to those matters.

In P the issue was whether the Adjudicator (the decision-maker in that case under predecessor legislation including the then equivalent of regulation 20(m)) could lawfully approve the school closure by reference to a draft funding agreement without requiring the final funding agreement to be identical to the draft. In the light of the equivalent of regulation 20(m) it could not be said that the signing of a funding agreement was a condition precedent to the taking of the decision. Wilkie J rejected the submission that the Adjudicator required a binding undertaking that there would be no material change in the draft agreement. As it happened, the decision maker had both a draft agreement and an assurance that, save in respect of a possibility of change expressly adverted to, the draft would not change. Nothing more was required. Mr Wolfe submits, on the basis of P, thatnothing less is required, whereas in the present case the Council did not even have a draft funding agreement specifically dealing with the Academy, only information about academies in general.

Like the judge, we reject that submission. Wilkie J said this:

“34…There is no power to require that the agreement under section 482(1) be anything other than an ‘agreement under section 482(1)’. There is no power to insist on an agreement containing particular terms or being in a particular form. The legislator could have included such a power. It might have been thought to be one way of ensuring that the Secretary of State and the promoters did not, after the approval of the discontinuance, change the funding agreement so as adversely to affect the maintenance or enhancement of standards. The legislator did not, however, choose to deal with it in this way. It gave the Adjudicator the function of exercising judgment as to whether the draft agreement would maintain or enhance standards and, no doubt, exercising his judgment as to the likelihood of the draft being changed after approval and before it was formally agreed in such a way as would cut across his judgment in granting approval.

35…In my judgment the Adjudicator was obliged to consider the extent to which he could rely on these assurances and undertakings. He did so and came to a conclusion that he could. This was a conclusion to which, in my judgment, he was entitled to come.”

We understand Mr Wolfe’s submission in the light of the way in which Wilkie J there expressed himself. Nevertheless, ultimately Wilkie J was only dealing with the facts before him: he was asked to decide a narrow issue and he did. That does not mean, however, that a draft funding agreement is a condition precedent. There is nothing in the statutory scheme to say that it is. Regulation 20(m) merely allows the making of a final agreement (by a certain date) to be made itself a condition of the decision. Schedule 4 to the 2007 regulations specifies at some length the information which the statutory notice of proposals must contain, but says nothing about the need for a draft agreement. There is nothing in the Guide to suggest the need for one. If there is no need for one, then there is no need for any assurance that it will not change. The judge rightly said that the court should be slow to introduce any further requirements by way of implication, adding “The court does not make education policy nor does it legislate”. This is particularly so where the statutory process is set out at length and in such specificity. We therefore agree with the judge when he concluded thus (at para 29):

“In P, the learned judge was not directing himself to, far less purporting to answer, the question whether as a matter of law there was a condition precedent – the existence of a draft funding agreement – to the lawful exercise of the power to decide upon closure of the school with a view to its replacement by an academy. I am confident that, if the learned judge had been required to address and answer that question, he would have analysed the relevant legislative material in its policy context and would have reached the same conclusion that I have reached; namely, that there is no warrant for the implication of any such condition precedent.”

Therefore this aspect of Mr Wolfe’s “details” ground fails.

We turn to the second strand in Mr Wolfe’s first ground, namely that the Council lacked the “required” information. This was essentially premised on paragraph 11 of Schedule 4 of the 2007 Regulations (set out at para 17 above) and the reference there to “Details of the schools…[sc at] which pupils at the school for whom provision is to be discontinued will be offered places…” In this respect, Mr Wolfe submits that the details there required are details of every aspect of the Academy which one could possibly desire, but certainly including (but not confined to) details of its governance and curriculum. He submits that where the transition would be to another maintained school (or schools), the legislative background defining matters such as the governance and curriculum of such schools would make the provision of such details unnecessary; but not so in the case of an academy. In this respect he relies on an observation of Wilkie J in P on the equivalent provision in the predecessor legislation:

“40…On the other hand the word “details” requires information to be placed before the Adjudicator concerning the detailed arrangements for governance and regulation of the school which is to replace that which is to be proposed to be discontinued.”

Mr Wolfe submits that that remark should also extend to information regarding curriculum (see below). It is not necessary to our decision, but we are doubtful that what Wilkie J said there is correct. We observe first, that the “details” under para 11 are indeed required by the 2007 Regulations to be set out in the statutory notice of proposals; and that they were in the present case set out in the notice, as follows:

“If this proposal is approved and subject to the completion of a Funding Agreement, with effect from 1 September 2008 all existing pupils and staff entitled to TUPE will transfer to the proposed Pimlico Academy. There are therefore no provisions for discontinued places.

It is proposed that the Academy, which will occupy the same site as Pimlico Community School, will admit 210 pupils in Year 7 and will be established as a school providing secular places for up to 1300 pupils aged 11 to 18 years, 210 in each statutory year group for Years 7 to 11.”

No complaint is made as to the statutory notice of proposals, and it therefore follows that the details there provided sufficed as an answer to the statutory demands of para 11. That is the answer ad casum.

Secondly, however, and in principle we doubt that the “details” of para 11 do require a mass of information about the proposed academy. Para 11 rather requires details of where the displaced pupils are going to go and how any interim arrangements or special needs are going to be catered for. The specified details required at para 11(a), (b) and (c), while admittedly not the only details required, because of the language “including”, go nowhere to support Mr Wolfe’s submission or Wilkie J’s observation. The place for such “details” as Mr Wolfe desires is if anything to be found in the Expression of Interest document, which is based on a form developed by the Secretary of State, but is not a product of the statutory scheme for discontinuance with which we are concerned. Of course, if Parliament had wished such material to be itself subject to that statutory scheme, it could have so legislated, but it has not. There is no specific request for details about governance or curriculum in Schedule 4. It may be noted moreover that the subject-matter of displaced pupils is dealt with in the statutory guidance (see paras 20/21 above) at paras 4.26 (in relation to academies) and 4.33 (generally) in terms which reflect our observations and go nowhere to provide support for Mr Wolfe’s submissions based upon P.

Even so, we are prepared to assume, for the sake of argument, that Wilkie J was right and that the statutory scheme does require the suggested details of the proposed Academy. The question then arises, how much detail? How much detail is sufficient to enable consultees to consult (or rather to make representations on the proposals, for the statutory consultation is by now over) and the local education authority to make a rational decision? That is the question that the judge posed to himself, when he went on to consider Mr Wolfe’s submissions in relation to governance and curriculum.

Governance in a maintained school is strictly controlled by statute so as to spread power among the various stakeholders in a school. In academies, however, control is centred in the sponsor. It is submitted, however, that the Council and consultees needed to know the precise composition of the governing body and that this could not be known until the funding agreement was negotiated.

But, as the judge pointed out, both Council and consultees knew a great deal about the governance of the Academy. Annexed already to the cabinet report of 9 July 2007 was the department’s Prospectus for Sponsors and Local Authorities called 400 Academies. There under the heading of “Governance” the following was to be found:

“In order to determine the ethos and leadership of the Academy, and ensure clear responsibility and accountability, the private sector or charitable sponsor always appoints the majority of the governors. This is the case even where the local authority is acting as a co-sponsor for wider purposes. The number of governors on an Academy governing body is not prescribed, but the expectation is for the body to be relatively small.

Like other state-funded schools, Academies also have stakeholder governors. They all have a parent governor, a local authority appointed governor, and the Academy Principal in an ex-officio capacity. Academies may also have a teacher governor (either elected or appointed); a staff governor (either elected or appointed); and may include community representatives…

There are many similarities between governing bodies of good local authority maintained schools, but there are important differences. As independent schools, Academies are set up as charitable companies to give sponsors and governors scope and responsibility for the ethos, strategic direction and leadership.”

In an appendix to the report of 6 June 2007 of the Director of Schools and Learning the composition of the governing body of maintained schools with their mandatory and minimum representation of parents, staff, local authority and community, was contrasted with the constitution of academy governing bodies. The draft Expression of Interest annexed to the cabinet report of 15 October 2007 contained this paragraph:

“The Academy’s governing body will seek to demonstrate the Academy’s ethos through its membership and its dynamic governance of the Academy. The Sponsor intends that there will be strong representation secured from the local community and business, as well as parent and staff representation. The Academy will appoint an outstanding Principal who will work with a strong team of staff to develop and implement the Sponsor’s vision.”

That paragraph appeared in a long and important passage (section 3.7) concerned with “Vision” (and appeared again in the signed Expression of Interest dated 17 October 2007). Another citation from section 3.7 is perhaps also relevant to governance:

“The introduction of an academy into a community brings a level of change that creates understandable anxiety for many parents and teachers. It is essential to develop an inclusive environment built on trust, openness and strong partnerships. The Sponsor believes that engaging parents is crucial to the success of a school. Parents at the Academy will be treated as partners in their children’s learning. The Academy will develop a range of strategies for liaising with parents and seek to encourage parents’ engagement with opportunities for access to extra pastoral support, tuition and extra curricular activities for their children.”

The judge observed:

“41.

It was therefore clear to the Council that, whatever sponsor was chosen, that sponsor would be entitled to control the governing body of the school and was, for reasons considered valid by some involved in the formulation of education policy, practically certain to do so…

43.

In short, the issue of governance did not involve further information. The Council had all the information that was needed. The issue called for an exercise of judgment…

44.

Certain consultees disagreed strongly with the Council’s assessment, but in my judgment that assessment was in no way legally flawed by the nature and quality of the information regarding the essential character of the future governance of the School as an academy controlled by Future as sponsor.”

We agree with those observations. Indeed, we think that it was precisely because some at least of the consultees recognised and disliked the change in governance that they expressed their dislike of the proposed closure of the School.

As it happens, there were two paragraphs on governance in the model master agreement but nothing in the supplemental agreement. Nothing was changed in this respect in the final signed agreements. However, all that was said was that the Academy Governing Body would be appointed as a committee of Future by its directors in accordance with its articles, a merely technical provision. In substance the information about governance had already been provided. The submission that only the final agreement would disclose the future of governance of the Academy is mistaken.

It was well understood by the Council and the consultees that academies are not bound rigidly to the national curriculum. 400 Academies explained:

“The specialist schools programme has demonstrated the positive effect that specialist centres of excellence can have on a school’s performance. All academies have at least one specialism.

Each sponsor agrees with the Department which specialism or specialisms their Academy will adopt. Sponsors and their principals are rightly focused on transforming achievement in English and Maths and other core curriculum subjects as their overriding priority. Normal practice is for at least one of an Academy’s specialisms to be in a core curriculum area, for example Maths, Science or Modern Foreign Languages. Other common specialisms include Business and Enterprise and Sport. Many Academies have two specialisms, but this decision lies with the sponsors.”

In the Expression of Interest, Future provided the following additional information:

“The principal specialism of the new Academy – which will be either Humanities (History), Maths or Science – will be decided following further consultation early in Feasibility. Visual and Performing arts will be the second specialism of the Academy. The predecessor school has established a tradition of excellence in this field, including a notable reputation for music. Within the Academy, the visual and performing arts will exemplify very high attainment, promote inclusion and generate enthusiasm for learning.”

Further curriculum details were given in relation to “Key Stage 3”, “Key Stage 4” and the Academy Sixth Form. They are set out by the judge at para 54 of his judgment.

Mr Wolfe submitted nevertheless that all this merely reflected Future’s then intentions and for that reason could not be considered “detail” because they were insufficiently secure. Even if secure, this was insufficient information, a merely generalised overview. However, we disagree and prefer the judge’s observations and conclusions, as follows:

“54…In my view, these indications and the expressed intention as regards specialisms gave the Council sufficient information regarding a likely future curriculum upon which it could reach a rational decision on closure…

55…it was for the Council to determine how much reliance it could put upon the relevant information and upon Future’s stated intentions. The documents to which I have referred showed that the Council took care to assess Future as a prospective sponsor and to evaluate the information that Future provided, including statements about future intentions…

59…All the documents to which I have referred and the relevant information in them were in the public domain and available to consultees. Consultees could have been in no doubt about, first, what was proposed; second, the information upon which the Council relied in respect of governance…and curriculum and, third, the reasons for the decision…

60.

In my view, the information not only enabled the Council to take a rational decision on closure but also enabled the consultees to give intelligent consideration of, and an intelligent response to, the proposal to close the school. Consultees knew that Future would control the governing body of the school,…and knew in broad but sufficient terms what kind of curriculum it was likely to adopt, including the specialisms of performance and visual arts and either history, maths or science. It is nearly always possible to have further detail on any subject. Some consultees wished to have more detail on the matters mentioned and even criticised the Council for not giving further detail as part of the consultation. However, the test is not whether further detail could have been given but whether consultees had sufficient information regarding governance…and curriculum to give intelligent consideration of, and intelligent response to, the proposals in those respects. In my judgment, the consultees manifestly had such information.”

We agree with those observations, and would merely add that, even on the hypothesis that the para 11 “details” embrace both governance and curriculum, which, as we have said, we doubt, the Council (and its consultees) had all that was required. Those proposals had to be made at a time which was necessarily, and statutorily accepted to be, in advance of finality. As the judge said, to the demand for “details”, the question is always how much detail? He answered that question by saying: detail enough for a rational decision. Even though Mr Wolfe was not disputing rationality, we think that was a good test. Mr Wolfe does not dispute rationality, and it follows, on top of all that the judge said, that, given the level of detail provided and available, the “details” met the statutory requirement, even on the basis of that requirement assumed.

As it happens, details of curriculum were also contained at paras 27/33 of the model master agreement, and were maintained unchanged in the final signed funding agreement. No complaint, however, is made of anything further revealed in this document, either on the basis that it provided what was missing or on the basis that it changed previous expectations. If the previous information was insecure or insufficient, we do not understand the lack of objection to the signed funding agreement. There is no submission of the “Now we see…” variety in relation to curriculum, any more than in relation to governance.

It follows that the appellant’s first ground for her application for judicial review failed.

We would add the following. The process of consultation under the statutory scheme necessarily takes place at an early stage, prior to and as an aid to the development of the statutory notice of proposals. Following that notice, the process of consultation is changed into a process whereby representations are invited in response to the proposals. That stage is again prior to the conclusion of a funding agreement. There is nothing in that timetable to suggest that a funding agreement even in draft form is a necessary element in a satisfactory consultation or decision. Nevertheless, the model agreements, both master and supplemental, were in fact available on the departmental web-site and it appears to us to be a matter of regret that there should have been any uncertainty as to whether those drafts were in fact to have been treated as available in the process. It is true that like any drafts they may be subject to change, but in practice change seems to be very limited.

We would also emphasise, as the judge did, both the available background in relation to the department’s policy in relation to academies, to be found in its 400 Academies prospectus (see paras 30/33 of the judgment below), and the care with which the Council approached each stage of its decision-making (paras 34/37).

We turn next to Mr Wolfe’s second main ground, which is a discrete point of a rather different nature. The argument here, as Mr Wolfe has stressed, is not the absence of sufficient information, but the essentially opposite contention that there had been a volte face by the Council on the important issue of admissions policy in respect of the place in it of “banding”. That is an over-subscription criterion which grades applicant pupils by ability into bands and then allows a random selection of pupils within each band so as to ensure a cross-section of ability throughout the year. In the absence of banding, a school’s admission policy would, subject to special cases, often depend entirely on matters such as the walking distance of an applicant pupil’s home from the school: the nearest would be admitted first, the next nearest second, and so on.

Banding is described in the School Admissions Code (the “Code”) which in its present form came into existence on 28 February 2007 and was issued by the Secretary of State as required by section 84 of the 1998 Act (the School Standards and Framework Act 1998). The Code applies to all maintained schools and also academies. It refers (at para 1.48) to section 39 of the 2006 Act (the Education and Inspection Act 2006) which prohibits the introduction of any new selection by ability other than for banding or sixth forms. It then deals with banding as follows:

“2.77

Banding, like other oversubscription criteria, only operates when the number of applications exceeds the number of places. Schools which use banding must not apply another test of ability once applicants are allocated to bands; they must not give priority within bands according to performance in the test. The admission authority must apply its other oversubscription criteria (such as random allocation) to each band to allocate places.

2.78

Banding is permitted by section 101 of the School Standards and Framework Act 1998, as amended by section 54 of the Education and Inspections Act 2006. The Education and Inspections Act 2006 removed the need for approval of statutory proposals before the introduction of banding arrangements, and this can now be done as part of the annual admissions consultation process.

2.79

Pupil ability banding is used by some admission authorities to ensure that their intake includes a proportionate spread of children of different abilities. Banding arrangements are good practice, provided the arrangements are fair, objective and not used as a means of unlawfully admitting a disproportionate number of high ability children.”

As the judge remarked:

“48.

Three points emerge from this. First, any community school may lawfully adopt banding. Second, banding is an oversubscription criterion. Third, banding can facilitate the aim of ensuring in an oversubscribed situation a proportionate spread of children of different abilities.”

It is clear from the documents in this case that the new Academy’s admissions policy was a critical issue for the Council and consultees. It was important to both that the chosen sponsor should pursue an admissions policy in line with the School’s current policy. It appears that Future expressed itself willing to do so.

The judge described the School’s admission policy in these terms:

“46…it was comprehensive and non-selective by reference to academic ability, subject to ten per cent of the annual intake being reserved to those with special musical aptitude, an intake that on the evidence tended in the event to comprise higher than average achievers. Places were first allocated to children with statements of Special Educational Needs, which named the school with the agreement of Westminster Local Authority. Places were then offered in a ranked order of preference by reference to whether the child was in public care; whether the child had exceptional medical, social or other need that could only be met by placement at the School; whether the child had a sibling at the School; and finally by reference to how closely the child lived to the School. Other than for the ten per cent already mentioned, there was currently no testing of academic or other skills-based ability.”

Passages in the cabinet report of 15 October 2007 relating to admissions include the following:

Annexed to the report of 15 October 2007 was the draft Expression of Interest, which under the heading of “Admissions” confirmed Future’s agreement that the Academy’s admissions policy would comply with “admissions law, the School Admissions Code of Practice and the School Admission Appeals Code of Practice as they apply to maintained schools” and that the “the admissions policy will ensure that the Academy meets its statutory requirements (i.e. ‘provides education for pupils of different abilities who are wholly or mainly drawn from the area in which the school is situated’)”. The form then asked for “any further details about the proposed over-subscription criteria and admissions policy. In particular, how the policy will lead to balanced intake and whether fair banding will be considered”. The answer to this question started by setting out the criteria for admissions, which duplicated the School’s existing criteria set out above, and continued with a passage which is at the heart of the appellant’s challenge under this ground:

“The proposed policy ensures as far as possible that the Academy’s intake would be drawn from the local area, ensuring a mixed and balanced intake regardless of faith or ability. The proposed oversubscription criteria are also similar to those adopted for nearby Paddington and Westminster Academies and follow those traditionally used for community schools nationally. They would also be clearly understood by parents.

The Sponsor and Local Authority are of the view that this policy would facilitate a balanced intake without the need for banding. The tests related to banding can add considerable stress for parents and students going through the already complex secondary admissions process in London as well as incurring significant expense for the Academy.

It is a condition of the Local Authority support for the Academy proposal that the admissions policy will be agreed with the Local Authority in the Feasibility stage and that the issue of all-ability intake, on which the Council and the Sponsor are entirely agreed, is resolved satisfactorily with the DCSF in the form of long-term agreements during the Feasibility stage, either through conditions of lease or a binding Memorandum of Understanding.

The Sponsor has a strong commitment to an all-ability intake for local pupils. The Sponsor intends to keep under review the admissions policy in future years to ensure that, as the school develops its reputation and its achievements, the intake remains firmly all-ability and locally based.”

Mr Wolfe submitted that this passage and in particular the second and third paragraphs of it amounted to (a) a rejection of banding as an oversubscription criterion, together with a reason for that rejection, and (b) an assurance that the Council would stipulate for a condition of the continued rejection of banding for all time in some binding legal form. The judge did not go that far. He said:

“49.

On the basis of this contemporary material, it seems to me that at the time of the expression of interest it was not the intention of Future to introduce banding as an oversubscription criteria. However, in evaluating that expression of interest, it is important to bear in mind the background and the stage in the process at which the intention was expressed. The background I have explained. According to the Code, banding was permissible and could in the oversubscription situation positively contribute to securing a balanced intake of pupils of all abilities. The language of the expression of interest made clear that the admissions policy as set out would be subject of future agreement.

50.

Against this special background and the prospect of future agreement, it seems to me that an informed reader would appreciate that what was said on banding was not necessarily cast in stone and that the possibility could not be ruled out that, as part of the process leading to future agreement, there might be some modification to what on its face appeared an unqualified position on banding.”

What is the judge saying here? He is not, as it seems to us, accepting in full the submission that Future has said that for all time it is rejecting the idea of banding and that the Council will set that in legal stone by way of binding agreement. Rather, it was not Future’s current intention to introduce banding; and “the issue of all-ability intake” would be covered by long-term agreement. In our judgment, how all-ability intake would be achieved in a balanced way might, however, depend on future developments. At present the joint view was that the current policy would facilitate a balanced intake “without the need for banding”. Indeed, there is no evidence before us as to whether and if so, how much, the School was over-subscribed. What the future might hold if the Academy’s reputation and achievements prospered, however, is another thing: that would have to be kept under review, but what was fixed was the intention to ensure that “the intake remains firmly all-ability and locally based”.

What happened next was that the Council and Future did then proceed to negotiate a draft memorandum of agreement (“MOU”). It was annexed to the cabinet report of 17 March 2008. This was available on the internet from 7 March, but the judge accepted that if the MOU amounted to a fundamental change on what had gone before, then even as of 7 March it came too late. The 17 March report introduced the MOU as follows:

“2.9

Of critical importance to elected members and parents has been the establishment of a new school which: -

• maintains the existing school’s comprehensive, secular admissions policy…

2.10

The Expression of Interest set out the local authority’s joint agreements and aspirations in these areas and these policies have been affirmed during the Feasibility Stage. Draft written agreement in the form of a Memorandum Agreement are attached to the document at Appendix 2…

3.14

The proposed Academy sponsor Future has committed to retaining the school’s specialism in Visual and Performing Arts. The Council determined, after the earlier non-statutory consultation in spring 2007, to adhere to a fully comprehensive admissions policy based on that established for existing community schools, the approach which respondees overwhelmingly favoured. The admissions policy set out within the Expression of Interest has been agreed with the sponsor based on these principles and this implies the ending of the 10% selection by aptitude for music from 2009 which would be the first year of admissions under any academy status. The envisaged admission policies for September 2008 and from September 2009 are annexed to the draft Memorandum of Understanding at Appendix 2. The final text of any admission policy is a matter to be provided for in the Funding Agreement.”

The MOU was expressed to be between the Council and Future and read in relevant part as follows:

“5.

The admission policy for the Academy shall be governed by the statutory Admissions Code for the time being in force but subject thereto the principles underlying the admissions policy for the Academy will ensure that places at the academy will not be allocated to pupils:

Annexes 1 and 2 set out the admissions and oversubscription criteria for September 2008 and all subsequent years respectively in a form which reflected then current arrangements and the documents set out above, and did not include a banding criterion. No complaint whatsoever is made about Annexes 1 and 2. Mr Wolfe’s complaint is entirely focussed on the words in parentheses in clause 5.2 – “except in the event that fair banding should be applied”. Mr Wolfe submits that this is a fundamental change on what had gone before, and represented a volte face whereby the Council had abandoned its expressed concern to ensure that Future was unable to introduce banding for all time. He accepted that banding could not be introduced without the consent of the Secretary of State (clause 7), but that was of no consolation when it could be introduced, with the consent of the Secretary of State, over the head of the Council.

In our judgment this submission is misconceived. In the first place, clause 7 also provides that the admissions criteria for 2008 and all subsequent years “will” be those set out in Annexes 1 and 2 respectively “Unless otherwise agreed between the parties”. Therefore Future could do nothing to change Annexes 1 and 2 without the agreement not only of the Secretary of State but also of the Council. Mr Wolfe submitted in effect that the clause 5.1 exception relating to banding fell outside clause 7, but also accepted during the hearing that if that was not the case, then the ground under discussion could not be made good. In our judgment, this ground must fail, because clause 7 does achieve the situation where banding could only be introduced with the agreement of the Council. And of course, if the School had remained in place, that would always have been the position, namely that the Council could have lawfully introduced banding as an aid towards the achievement of a balanced all-ability admissions policy.

Secondly, although the judge regarded the language of the MOU as representing a “shift” in position which he regarded as “significant”, he declined to find that it was “fundamental”. He adopted that test, of a “fundamental” change, for whether a later modification vitiates a prior consultation as one which Silber J had used in R (Smith) v. East Kent National Health Service Trust [2002] EWHC 2640 (Admin) after a consideration of the authorities. No complaint of its use has been made by Mr Wolfe. We agree that on any view this change could not be described as fundamental, or as such a change as should properly vitiate a consultation process, and we do so even if the change should properly be regarded as “significant”. Banding still remained something which was not on the agenda, as Annexes 1 and 2 demonstrated; it could not be introduced without the consent of the Secretary of State or the Council, it would not only be lawful and recognised by the Code as “good practice”, but it could be needed to ensure the essential goal of a balanced all-ability intake. It would be wrong to rule it out for ever, and in our view it never had been.

Thirdly, however, we are very doubtful that we would even describe the MOU exception in issue as a “significant” change. In truth, it is only a drafting matter. In drafting an agreement to enshrine an all-ability admissions policy in which selection on the basis of ability is not to be permitted, the draftsman has asked himself: but what if banding (as a prelude to random selection within the bands) is needed to assist in the achievement of such a comprehensive all-ability policy? He and the parties have realised that such a possibility has to be acknowledged, even if the present and foreseeable policy is to do without it (as reflected in annexes 1 and 2). So, the possibility is acknowledged: for otherwise the drafting might suggest that a future attempt to ensure a balanced all-ability intake with the help of fair banding would be forbidden. In truth, nothing could prevent a change in admissions policy by agreement (even if the consent of the Secretary of State were also needed), even without the exception in clause 5.1. That is recognised in clause 8, which states that Future “may at any time propose to the Council a change in the admissions criteria applicable to the Academy and the Council will not withhold or delay its decision in respect of such a change”. Mr Wolfe does not object to clause 8. And even in the absence of clause 8, the parties could agree on a change. All this shows that the challenged wording in clause 5.1 is not a matter of substance but a mere drafting point.

Fourthly, we return to our understanding of what the Expression of Interest document was saying about admissions policy and banding. What was contemplated was a contract to formalise an all-ability admissions policy and at most its current detail, but not to set the complete detail in stone for ever. Above all, it was not all about banding, which was but a detail in the overall picture. We therefore consider that, whether or not we are right to describe the challenged wording as a matter of mere drafting, the MOU accurately reflects the essence of what the Council and Future had reached agreement on as described in the Expression of Interest document and in the report of 17 March 2008. If it were not so, it would have been impossible for that report to have annexed the MOU as an accurate expression of the agreed admissions policy. The writer of that report and the Council plainly did not see any incompatibility between the MOU on the one hand and the report and the Expression of Interest on the other. We agree.

It follows that this second ground of challenge failed as well.

We would observe that the provisions of Annexes 1 and 2 of the MOU were subsequently contained in Annex 1 to the supplemental agreement to the master funding agreement. Annex 1 also contained provisions for the need for consultation each year for determining admission arrangements: among the named consultees were the Council and the admission forum for the Council.

The judge also had to consider an argument made by the Council and the interested parties to the effect that permission to apply for judicial review should in any event be refused on the ground that the appellant had delayed in her application, on the ground that in substance the challenge amounted to an attack on the publication of the statutory closure notice on 3 January 2008. The judge said that it was not strictly necessary for him to deal with this issue, and that he approached it with caution, especially as there were considerable merits in the points made by both sides. In the end, he said that, if he had to decide the issue, he would not have ruled the application out of time, because he would have been most influenced by the desirability of curtailing premature challenges and of encouraging negotiation rather than litigation. The point of delay has been raised again by the respondents in this court, who have developed the argument further by reference to the pressing time constraints of the 31 August 2008 closure of the School and of the 1 September 2008 opening of the Academy, the need for so much to be done and committed in the run-up to those dead-lines, and the principle of good administration. Like the judge, we have decided this application on the substance of it, and have not had to decide the procedural point of delay. We would merely say that, if we had had to consider the question of delay, there was apparently much to be said for the respondents’ submissions.

In sum, this application for judicial review was refused for the reasons contained herein.