Haringey Independent Appeal Panel v M, R (on the application of)

This appeal requires the court to address provisions of the School Admission Appeals Code (“the code”), which was issued by the Secretary of State for Children Schools and Families pursuant to s.84 of the School Standards and Framework Act 1998 and which came into effect on 10 February 2009.

The respondent, M, applied for judicial review of the dismissal by the Haringey Independent Appeal Panel (“the panel”) of her appeal against the refusal of Haringey LBC (“Haringey”), as the local education authority, to allow her daughter, MC, to attend the school of her preferred choice (“the PC school”) with effect from September 2009. By order dated 16 October 2009 Lord Carlile of Berriew QC, sitting as a deputy judge of the High Court, Queen’s Bench Division, Administrative Court, declared that the panel’s decision had been unlawful and he quashed it.

The judge’s judgment, numbered [2009] EWHC 2427 (Admin) and reported at [2010] ELR 218, has been controversial; his interpretation of the code has caused surprise. Thus, when the panel launched an appeal to this court against his order and secured permission to bring it, the Secretary of State successfully applied to intervene in it. But he had indicated that, if allowed to intervene, he wished to make submissions on the meaning of the code only in writing. So he did not appear at the hearing of the appeal.

At the conclusion of the hearing of the appeal, which took place on 28 April 2010, Rix LJ announced our decision, namely to allow the appeal and to set aside the judge’s quashing order. But we reserved our judgments.

At the hearing we were told that:

MC was born on 18 March 1998. She and a half-brother live with M in Haringey. She was due to transfer from primary to secondary school in September 2009, when aged 11. In October 2008 M applied to Haringey for MC to be allocated a place in a secondary school. M said that her preference was first for the PC school (which is about a mile and a half away from her home) and second for the X school (which is about a mile away from it).

The PC school is very popular. Its Published Admission Limit (“PAL”) is 243 pupils each year. It is frequently over-subscribed. In cases where there are more applications to attend a particular school than places available at it Haringey applies its published admission criteria. “Priority”, it says, “will be given in the following order”; and then five categories of children are identified. The second is as follows:

“(b)

Children who the Authority accept have an exceptional medical, social or educational need for a place at the school. Applications will only be considered under this category if they are supported by a written statement from a doctor … or other appropriate independent professional. In each case, the connection between the child’s need and the specific school applied for must be clearly demonstrated.”

In her application to Haringey M claimed that MC fell into the second category of children identified in its admission criteria. She claimed that MC had an exceptional medical, social or educational need for a place at the PC school. In reality, however, her case was that MC’s exceptional need was social rather than medical or educational. The context of it was that, so M said, she and MC had lived on the fringes of gang warfare and remained at risk of being caught up in it, including at the hands of other family members. M stated that in 2003 and 2004 she and MC had had a traumatic time during which they had been harassed and intimidated; that threats, including a threat to shoot M, had been made against them; and that false claims had been made that M was a drug-dealer. M stated that, as a result, she and MC had been forced to flee their home and had remained living in a hostel for more than a year, while their home was made more secure; and that she, M, had suffered a nervous breakdown. M said that MC had been bullied at her first primary school but had then moved to one more satisfactory for her. M enclosed copies of five letters to her from the police, sent between 2002 and 2007, each expressing concern that she had been the victim of a crime. She also enclosed a letter from the family’s GP, who wrote:

“[MC] has suffered bullying and harassment at [her first primary school] from which her mother had to transfer her to another school out of the area …

I saw [MC] and her mother during that time when both of them were victims of harassment by neighbours. [MC] in particular suffered at the school from which her mother removed her. I believe that [MC] needs to be at a school which is away from her present neighbourhood and area so that bullying and harassment from the same people is minimised.”

It is important to note that, where the parental preference is for an oversubscribed school, local education authorities are required to do more than to apply their published admission criteria. Subject to exceptions, s.86(2) of the School Standards and Framework Act 1998 requires them to comply with the parental preference. The relevant exception is provided by subsection (3)(a), namely “if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources”.

By letter dated 2 March 2009 Haringey offered M a place for MC at the X school and said that it had not been possible to offer her a place at the PC school. The basis of the rejection of M’s claim that MC had an exceptional social need to attend the latter was that Haringey did not accept that it was better placed than other schools to meet MC’s needs and, specifically, that the GP’s letter supported MC’s admission not to any particular school but only to one outside her immediate neighbourhood. In its letter Haringey made no reference to its duty under s.86(2) of the Act of 1998.

Pursuant to s.94(1) of the Act of 1998 M appealed to the panel against Haringey’s refusal to award MC a place at the PC school. Haringey put before the panel a letter from the headteacher of the PC school. He wrote that an increase in the number of pupils beyond that set by the PAL would endanger the safety as well as the success of the school. He gave details about already cramped conditions in classrooms (particularly when practical subjects like Design and Technology, which require more space, were taught), bottlenecks on stairways and a need to spread the service of lunch to times when pupils should be at work; and he spoke of unfair pressure on staff. Haringey also put before the panel a statement of its position, including a claim to be relieved of its duty under s.86(2) of the Act of 1998 to comply with M’s preference on the basis that compliance would prejudice the provision of efficient education and the efficient use of resources at the PC school.

Section 84(1) of the Act of 1998 requires the Secretary of State to issue a code for school admissions containing such provision as he thinks appropriate in respect of the discharge of the respective functions of local education authorities and appeal panels. Subsection (3) of s.84 provides that “it shall be [their] duty … to act in accordance with any relevant provisions of the code”.

The third chapter of the code is entitled “Reaching Decisions on Appeals”. The first few paragraphs appear substantially to be based on such analysis of the duty of appeal committees (as they then were) cast upon them by the precursor to s.86(2) of the Act of 1998 as was valuably offered by Forbes J in the Administrative Court of the Queen’s Bench Division in R v. South Glamorgan Appeal Committee ex p Evans on 10 May 1984 (unreported) and was generally endorsed by Woolf LJ in the Divisional Court of the Queen’s Bench Division in R v. Commissioner for Local Administration ex p Croydon LBC [1989] 1 All ER 1033.

Paragraph 3.1 of the third chapter of the code opens with the statement that, other than in a situation which is irrelevant for present purposes, “panels must follow the two-stage process as set out below for all appeals”.

Paragraph 3.1(a) then provides:

“a)

First Stage: establishing the facts, at which the panel considers whether the school’s published admission arrangements:

i.

comply with the mandatory requirements of the School Admissions Code and Part 3 of the SSFA 1998.

ii.

were correctly applied in the individual’s case, and decides whether “prejudice” would arise were the child to be admitted. If this is proved, the panel moves on to the second stage.”

I am clear that the typographical lay-out adopted in the code in relation to the last five lines, set out above, is misleading. The words should have been laid out as follows:

“ ii. were correctly applied in the individual’s case,

and decides whether “prejudice” would arise were the child to be admitted. If this is proved, the panel moves on to the second stage.”

Paragraph 3.1(b) provides:

“b)

Second Stage: balancing the arguments, at which the panel exercises its discretion balancing the degree of prejudice to the school against the appellant’s case for the child being admitted to the preferred school, before arriving at a decision.”

It will be noted that the Secretary of State refers to the balancing of the arguments as the exercise of a “discretion”. It is certainly an exercise of judgement but, if left to myself, I might have chosen not to describe it as an exercise of discretion. Nevertheless in the South Glamorgan case Forbes J used such a description so the Secretary of State can hardly be criticised for having adopted it.

The subheading of paragraphs 3.2 to 3.5 of the code is “First stage: establishing the facts”. Insofar as relevant, they provide:

“3.2

The panel must consider the following issues.

a)

Whether the relevant oversubscription criteria for the school and coordinated admission arrangements were correctly and impartially applied to the child concerned. If not, whether the child would have been offered a place had the arrangements been properly applied or did not contravene mandatory provisions in the School Admissions Code or the SSFA 1998. The latter scenario may clearly be the case – for example, where the admission authority refused admission on the basis of poor reports from primary school, and the child would have been offered a place had the offending criterion not been applied, or made in error in calculating distance from the school. If so, the panel must uphold the appeal at this stage, except where a significant number of children are affected and admitting them all would cause serious prejudice. If not, the panel then considers prejudice as instructed by paragraph (b) below …

b)

Whether or not there would be prejudice caused by the additional admission of the child. Where this is the case, the admission authority must be able to demonstrate this over and above the fact that the published admission number has already been reached. The panel must consider a number of factors in reaching a decision as to whether or not there would be prejudice. This may include considering, in light of current school organisation and structure, what effect an additional admission would have on later year groups (i.e. ‘future prejudice’) …The panel can decide what weight to give the arguments presented.

…

3.5

In the situation where only one appeal is being heard for the school and the panel is not satisfied in the first stage that there would be prejudice if the child were admitted, the panel must uphold the appeal … Where the admission authority is able to satisfy the appeal panel that there would be prejudice, the appeal panel must go on to the second stage.” [Italics – as opposed to the bold type – supplied]

The subheading of paragraphs 3.6 and 3.7 of the code is “Second stage: balancing the arguments”. Insofar as relevant, they provide:

“3.6

At this stage the panel must consider whether the appellant’s grounds for the child to be admitted outweigh any prejudice to the school. The panel must take into account the appellant’s reasons for expressing a preference for the particular school (e.g. why they want that school in particular and what it can offer the child that others cannot).

3.7

The admission authority concerned may submit, as part of its evidence to the panel, that the child in question has been allocated a place at an alternative school. This may be of particular relevance where the question of distance between home and school is being discussed. Equally, it is open to the appellant to state any reasons why an alternative school would be less suitable …”

It is important to note the stance which Mr Broach, who appeared pro bono on behalf of M at the hearing of the appeal before the panel on 12 June 2009, then adopted. He did not take a stand on the first of the three matters raised at the first stage, namely whether the admission arrangements complied with the mandatory requirements. He did take a stand on the second of those matters in that he argued that Haringey had wrongly failed to accept that MC had an “exceptional … social … need” for a place at the PC school within the meaning of its admission criteria. He did not take a stand on the third of those matters; as the notes made by the clerk to the panel indicate, and as the letter before claim written by M’s solicitors was later to confirm, he realistically accepted, by reference to its headteacher’s letter, that MC’s admission would cause some prejudice to the PC school. But he did take a stand on the matter raised at the second stage in arguing that, even in the absence of an exceptional social need for her to attend the PC school, the grounds for MC’s admission outweighed the prejudice to the school.

By letter dated 21 June 2009 the clerk to the panel informed M of the dismissal of the appeal. She wrote:

“The Panel first considered if the admission authority for the [PC] school was right to refuse your original application for your child to attend there. In effect, this means that the Panel had to decide if the school was full in the appropriate year group. Upon considering the oral submissions from the Admissions Authority and written submissions from the Head-Teacher, the Panel found that the school had reached its published admission number of 243 pupils and was full. The Panel also accepted that the school would be presented with several management and curriculum problems associated with overcrowding if one [or] more children were admitted over and above the stated number. They therefore concluded that the decision not to allow your child a place at [the PC] school was correct under the circumstances.

When the Panel finds that the admissions authority was correct to refuse your application, it goes on to consider the second stage; whether the reasons you gave for wanting your child to go to the school were more important than the possible detrimental effect this would have on the school and the children already admitted.

The Panel carefully considered the points you raised in your oral and written submissions, including the fact that [the PC] school is listed as your first preference and that [MC] should be given the opportunity to attend [it]. You stated that [MC] had been subjected to both physical and emotional abuse due to a long running family feud. [MC] had been offered a place at [the X] school … but family members attended this school and you were concerned that [MC] would be subjected to bullying if she attended. You stated that [the PC] school was in very close proximity to your home address and so travel to and from school would cause no problems. [The PC] school would ensure a safe environment for [MC] and their outstanding pastoral system would provide the additional support required. They did not consider, however, that there were exceptional reasons to compel the school to admit a further pupil, having accepted that it would prejudice the education of pupils already at the school. The Panel considered that a number of schools within Haringey could be suitable for [MC] and that it was not the case that [the PC] school was the only school suitable for her.

They considered that the difficulties the school would face if the Panel were to comply with your preference to admit [MC] to [the PC] school would far outweigh any disadvantage suffered by not being admitted to the school.”

It will be noted that in her letter the clerk to the panel unfortunately omitted to address – at any rate expressly – Mr Broach’s first contention, namely that Haringey had wrongly failed to accept that MC had an exceptional social need for a place at the PC school within the meaning of its admission criteria. She made reference to the absence of “exceptional” reasons to compel the school to admit MC; but such was in the context of the second stage of the enquiry. In response to the claim for judicial review, and thus after the omission had been brought to her attention, the chair of the panel made a witness statement in which she stated that the panel had indeed considered that Haringey had been correct to conclude that MC did not have an exceptional social need to attend the PC school. But courts are required to be very cautious before allowing decision-makers to add to their reasons once their decisions have come under judicial scrutiny: R v. Westminster City Council ex p Ermakov [1996] 2 All ER 302 at 315h, per Hutchison LJ.

Although he went on to hold that the panel had also made two errors in its approach to the second stage of the enquiry, the judge based his decision upon perceived flaws in its approach to the first stage. The central paragraph of his judgment reads as follows:-

“23.

The decision letter and the short hearing notes fail to demonstrate any application of the subjective criteria contained in the first stage of the code test. I do not understand [the chair’s] statement as adding anything significant to this part of the case or to contradict the decision letter. The effect is that the panel appears to have applied a fixed policy test, namely no additional pupils above the year limit of 243 set by the school. This reads as a classic example of fettering a discretion (the decision whether or not to admit the child in question) with a policy (no children at all above the 243 set by the school). No ‘prejudice’ was found in relation to the proposed admission of MC, other than the statement of the obvious that one child over the set 243 would be admitted. In my judgment the first stage test requires more than this: the panel must consider whether prejudice would occur if the child in question were admitted. For example, this subjective element might result in the conclusion that the child concerned presented certain features that might enhance the school despite being an addition to the set number. Without the subjective consideration, the element of paragraph 3.2(b) of the code … is not satisfied.”

Earlier in his judgment the judge had set out the passage in the letter of the clerk to the panel (namely the last of the paragraphs which I have quoted at [21] above) in which she recorded the panel’s view that the difficulties for the PC school attendant upon the admission of MC far outweighed any disadvantage suffered by her as a result of not being admitted to it. The judge had said that the passage was “perhaps out of position but plainly relevant to the first stage”; he had there explicitly foreshadowed the view of the ambit of the first stage of the enquiry which he was to set out in [23] of his judgment.

It is clear that, in holding that the panel’s approach to the first stage of the enquiry had been flawed, the judge was addressing its approach to the third of the three matters to be considered at that stage, namely whether prejudice would arise if the child were to be admitted.

In [23] of his judgment the judge was no doubt correct to assume that the third matter to be considered at the first stage (like the matter to be considered at the second stage) is a matter for the appeal panel to decide for itself; and thus that its function in this regard is not to review whether the authority’s decision in relation to prejudice was reasonable. In this respect the terms of the code, set out at [15] above, are clear, namely that the panel “considers” the first two matters and “decides” the third. I will turn at [35] below to an interesting question about the nature of the panel’s function when it “considers” the second matter at the first stage.

In other substantial respects, however, I have been driven to conclude that the contents of [23] of the judge’s judgment are wrong. It is, of course, permeated by misconception in that before the panel Mr Broach conceded the third of the matters at the first stage, namely that MC’s admission would cause some prejudice to the school. He did so in particular by reference to the headteacher’s letter, which, when it adverted to “several management and curriculum problems”, the panel in its letter summarised. So the judge was wrong to conclude that the panel found no prejudice in relation to the proposed admission of MC beyond the bare fact that the limit of 243 admissions would be exceeded.

But my wider concern about the judge’s paragraph relates to the terms in which he analysed the requisite enquiry into the third matter at the first stage. He described its criteria as “subjective”. Taking his paragraph as a whole, I believe that he thereby meant to convey that the enquiry had to encompass consideration of the ‘subject’ child and in particular whether “the child concerned presented certain features that might enhance the school despite being an addition to the set number”.

In my view it is, to put it at its lowest, misleading to describe the enquiry into the third matter as subjective. It is essentially objective. The enquiry into prejudice, required by the code, reflects the statutory mandate to assess prejudice to “the provision of efficient education or the efficient use of resources”: s.86(3)(a) of the Act of 1998. True it is that the panel must decide whether prejudice would arise were “the child”, i.e. this child, to be admitted; and, while children with statements of special educational needs are cannot be the subject of appeals under s.98(1) of the Act of 1998, I can imagine a case in which the attributes of a particular child, albeit not statemented, might, unlike those of another child, be found likely to make unusual demands on a school productive of prejudice either to its provision of efficient education or to its efficient use of resources. But in my view it is only to such very limited extent that the attributes of the child are encompassed within the enquiry into the third matter. In particular, as the Secretary of State and the panel contend and as Mr Wise QC concedes, this enquiry does not encompass an assessment whether, in the light of the child’s particular talents, benefit to the school arising out of the proposed admission would outweigh the prejudice with the result that there would be no net prejudice. The Secretary of State, the paneland Mr Wise all proceed to contend that the exercise of balancing arguments at the second stage is wide enough to encompass such an assessment. But what did the judge have in mind when referring to a child’s “features that might enhance the school”? A brilliant singer? An outstanding swimmer? In my view difficult issues arise in relation to the alleged relevance of a child’s exceptional talent in this context: for, if relevant, she or he may secure admission in circumstances in which an averagely talented child would not do so. All this is, however, well outside the ambit of the present appeal because – and this is another curiosity about the judge’s paragraph – it was never contended that MC had exceptional talent which might enhance the school.

I turn to the first of the judge’s two reasons for holding that the panel’s approach to the second stage of the enquiry had been flawed. It related to the sentence in the clerk’s letter, set out in [21] above, in which she stated that the panel did not consider that there were “exceptional” reasons to compel the school to admit MC. Exceptionality, observed the judge correctly, is not the test at the second stage. In a different context I once explained the danger that a decision-maker’s attempt to explain his decision in terms which include reference to exceptionality is misconstrued as his elevation of that concept to become the governing criterion: Currey v. Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946, at [19]. I do not regard it as a fair reading of the clerk’s letter that the panel treated exceptionality as the governing criterion at the second stage. In the second paragraph of her letter she had set out in impeccable terms the nature of the enquiry at the second stage; and I regard it as probable that her later reference to “exceptional reasons” was no more than an attempt to address Mr Broach’s argument, albeit in relation to the second matter at the first stage, that MC had an “exceptional” social need for a place at the school.

The second of the judge’s reasons related to the statement in the clerk’s letter that the panel considered that “a number of schools” within Haringey could be suitable for MC. The judge reminded himself that in paragraph 3.7 of the code, set out at [19] above, the Secretary of State accepted that the allocation to the child of a place at another school might be relevant to the panel’s enquiry at the second stage. Therefore, so the judge held, it was invalid for the panel to have considered the possible suitability of schools at which no place had been allocated to MC.

I cannot accept that the panel made an error of law in that regard. No doubt the most relevant of other schools was that at which MC had been allocated a place, namely the X school; and no doubt it would have been irrelevant, probably materially so, to refer to some other school if there had been evidence that it could not allocate a place to her. But there was no vice in a general reference to schools which either had allocated, or might be able to allocate, a place to her. Indeed there was virtue in such a reference because it was addressing the argument, set out for example in the letter from M’s solicitors to Haringey which gave notice of her appeal to the panel, that she and MC could be at risk of violence if she were to attend any school other than the PC school in the entire areas of Tottenham, Wood Green and Hornsey. Of course M’s invocation of the admission criteria, under which she was required to demonstrate the connection between MC’s exceptional social need and “the specific school applied for”, required her argument to be cast in that way. But the natural way for the panel to express its rejection of the argument was to state, as in the letter it did, that a number of schools within Haringey could be suitable for MC.

It remains only to consider whether, as by a respondent’s notice M contends, the judge’s order can be saved by the argument which she put before him but with which he did not deal. This was in relation to the second matter at the first stage.

In this regard the terms both of her notice and of her counsel’s skeleton argument before this court demonstrate an aspiration on the part of M to confine her argument to generalities, namely that the panel unlawfully omitted to address her complaint that Haringey had – in the terms of the second matter at the first stage – failed correctly to apply its published admission arrangements to MC’s case. In my view, however, the argument is not justiciable in such generalised terms. M must particularise the alleged failure and is therefore required to argue, as she did before the panel, that Haringey failed to recognise that MC had an exceptional social need for a place at the PC school within the meaning of the second priority category in its published admission criteria.

Of course it was unfortunate that in its letter the panel failed expressly to address M’s argument; and in a sense doubly unfortunate that in his judgment the judge failed to address the challenge to the panel’s failure. But the successive failures have a ready explanation: for the argument was patently unsustainable. Although the evidence was far from strong, Haringey had apparently accepted that MC’s attendance at a school within the immediate neighbourhood of the family home would increase the risk of harassment to a degree at which she could be said to have an exceptional social need to attend a school outside it. But the evidence wholly failed to demonstrate that MC’s need was to attend the PC school as opposed to some other school outside her immediate neighbourhood. By the terms of her letter, the family’s GP, who was M’s most important witness in this regard, had, no doubt unintentionally, exposed M’s inability to sustain that part of her case. Albeit in the context of the second stage, the panel had concluded that a number of schools in Haringey would be suitable for MC and it is for that reason that it can be charged only with a failure expressly to address M’s argument in relation to the second matter at the first stage: implicitly the panel rejected it. Indeed M’s argument in this regard had been further weakened by her identification, as second preference for MC, of the X school, lying only about a mile away from her home, rather than of schools in Haringey which lay further away.

In that the argument comprised in the respondent’s notice must therefore fail in any event, the issue of law which has precipitated the sharpest division between counsel does not demand resolution. Nevertheless I offer a view about it. The issue is this: when, in relation to the second matter at the first stage, it “considers whether the school’s published admission arrangements … were correctly applied in the individual’s case”, is the function of the panel to review whether the local education authority applied the arrangements reasonably or, instead, is it to apply the arrangements for itself? Mr Hyams on behalf of the panel, strongly supported by the written submissions filed on behalf of the Secretary of State, contends for the former. Mr Wise, with all his authority in this area of the law, contends for the latter.

Mr Wise submits that the considerable expertise of appeal panels is educational rather than legal; that their expertise therefore naturally propels a decision rather than, in the manner appropriate to the Administrative Court, a mere review of reasonableness; and that in this context the very distinction is elusive. Furthermore one adverb in paragraph 3.2(a) of the code is very much in Mr Wise’s favour: it is the word “correctly” – italicised in [18] above – which seems to require an intensity of examination more apt to decision than to review. The trouble is that in the subparagraph the code proceeds to deploy two other adverbs – also italicised – which dilute the force of the word “correctly”. For the words “properly” and, in particular, “impartially” suggest a function of review.

In my opinion the function of the panel when considering the second matter at first stage is one of review. I say so for three reasons:

Some issues raised before a panel in relation to the second matter at the first stage will be such as to render the distinction between review and decision academic. They will be black-and-white issues such as whether the local educational authority wrongly measured the distance between the school and the child’s home. The distinction will be relevant only to circumstances in which the admission criterion in play required the authority to exercise judgement, such as indeed whether the child had an exceptional medical, social or educational need for a place at the particular school. In such circumstances its function of review requires the panel to ask itself only whether the negative conclusion of the authority was reasonable. I do not accept that such is – in principle – a difficult question for it to determine even though its expertise lies outside the law. Indeed, in the different context of an appeal against a refusal to admit an infant to a particular class in the light of its existing size, such is precisely one of the questions which it is or may be required to answer: see Regulation 6(4)(c) of the Education (Admissions Appeal Arrangements) (England) Regulations 2002, S.I. 2002/2899.

It was for the reasons set out above that I subscribed to the disposal of the appeal which Rix LJ announced at the conclusion of the hearing and to which I have referred at [4] above.

I agree.

I also agree.