B, R (on the application of) v Hertfordshire County Council

B was born in August 1993 and is therefore now eleven years old. He is described by the Head teacher of his primary school as an extraordinary boy with an unquenchable enthusiasm for learning, interested in a huge variety of topics and a creative and original thinker who enjoys serious discussion and problem-solving. But he has difficulty expressing himself on paper and, consequently, in coping with traditional written examinations. As his Head teacher says, his thinking is far in advance of his recording skills and it is only through talking to him that his true talents become apparent.

B’s parents believe that the X school is best for him and therefore expressed a preference pursuant to section 86(1) of the School Standards and Framework Act 1998 that he attend that school. It is a selective school and unhappily B failed to achieve the necessary mark in the entrance examination. On 30 March 2004 the Head of the X school wrote to B’s parents informing them that he had obtained 104 in his Verbal Reasoning Test against a required standard of 115 and that he therefore could not be offered a place. On the same day the defendant local authority offered B a place at the Y school, which is in fact the nearest secondary school to his home. It is not a selective school and in the parents’ view a school neither remotely as good as the X school nor suitable for B’s needs. It is, they say, “TOTALLY unacceptable”. By a letter dated 5 April 2004 the parents appealed against the decision of the X school to the Independent Appeal Panel under section 94(1)(b) of the Act. By a letter dated 18 June 2004 the Appeal Panel dismissed the parents’ appeal. There is no challenge to that decision.

On 24 June 2004 the parents asked the local authority to exercise its discretion under section 96 of the Act to direct B’s admission to the X school. So far as is material for present purposes section 96, which is headed “Direction to admit child to specified school”, provides as follows:

“(1)

The local education authority may give a direction under this section to the governing body of a school for which they are not the admission authority if, in the case of any child in their area, either (or both) of the following conditions is satisfied in relation to each school which is a reasonable distance from his home and provides suitable education, that is–

(a)

he has been refused admission to the school, or

(b)

he is permanently excluded from the school.

(2)

A direction under this section shall specify a school–

(a)

which is a reasonable distance from the child’s home, and

(b)

from which the child is not permanently excluded.”

Section 96 contains provisions which were originally in section 13 of the Education Act 1993. They were consolidated into section 431 of the Education Act 1996 and, with some changes, re-enacted as section 96 of the 1998 Act. The words which I have italicised were inserted by paragraph 10 of Schedule 4 to the Education Act 2002. It is common ground that the X school is, within the meaning of section 96(1), a school for which the local authority is not the admission authority.

The local authority’s decision was contained in a letter dated 6 July 2004 the critical passage in which said:

“I have to advise you that the Local Education Authority will not interfere with or override the decision of a properly constituted Independent Appeal Panel”.

B’s parents wrote on 8 July 2004 complaining that the local authority had unlawfully applied what they called a ‘blanket policy’. The local authority replied on 20 July 2004 saying:

“I have been unable to find mention of any blanket policy. The Local Authority has not fettered its discretion but chosen on this occasion not to exercise its discretion to direct the school to admit [B].”

B sought judicial review of the local authority’s decision. In his grounds of challenge attached to the claim form issued on 4 August 2004 B asserted that the local authority had unlawfully fettered the discretion conferred upon it by section 96(1) – “The local education authority may …” – by adopting an inflexible policy and consequently failing to address his case on the merits.

The application was considered on the papers by Newman J on 6 August 2004. Refusing permission to apply for judicial review he said:

“I agree that the letter is phrased in such a way as to suggest that in no case would the LEA interfere with or override a Panel decision, but I am not persuaded you have a sufficient case to establish that a policy exists which has been applied to the claimant, as opposed to the LEA not being prepared, in this case, to override the decision of the Panel because the LEA agrees that it would give rise to prejudice.”

On 11 August 2004 B filed notice of renewal of his claim for permission to apply for judicial review.

On 1 September 2004 the local authority filed an acknowledgement of service. This took a point which seemingly had not occurred to anyone previously, though foreshadowed in a letter from the local authority dated 24 August 2004, namely that section 96 was simply not engaged in this case at all, because B had not, within the meaning of section 96(1), been refused admission to, or permanently excluded from, each school within a reasonable distance from his home. B has been refused admission to the X school (and it may be also to other schools) but he has not been refused admission to every school within a reasonable distance and has indeed been offered a place at another school – the Y school – which is within a reasonable distance and, says the local authority, offers a suitable education.

I shall deal first with the question of whether section 96 is engaged at all.

The local authority’s case, deployed in front of me by Mr Jonathan Auburn, is very simple. B, he says, would have a case only if instead of the word “each” section 96(1) had used some such word as “a”. This, indeed, is precisely B’s case. Mr Nicholas Bowen on his behalf submits that “each” means “a”, not “every”. Mr Auburn disagrees. That is not what the statute says. In section 96(1), he says, “each” means “every” or “all”. He relies upon the dictionary meaning of “each”, pointing me to the second edition of the Oxford English Dictionary where “each” is defined as meaning “every (individual of a number) regarded or treated separately”. So, he says, section 96(1) requires that the relevant condition in section 96(1)(a) or (b) be satisfied in relation to each – that is, every – school which is a reasonable distance from B’s home and provides a suitable education. That is not the case here.

Mr Auburn further submits that the purpose of section 96 is to deal with the situation where a child has generated such a reputation locally (eg through one or more exclusions) that all the schools in his area are refusing to take him. In such a situation the local education authority may wish to force one of the schools to accept the child. The measure exists, he suggests, partly to ensure that local schools cannot simply export problem children from their area. It is, he says, an exceptional power for exceptional situations. It is not a general means of circumventing the procedure of appeal under section 94 to an Independent Appeal Panel, nor of overcoming any adverse decision of an Appeal Panel. He relied upon what the Minister of State, Baroness Blatch, had said in the House of Lords (Hansard, HL, Vol 544, col 1538, as quoted in Harris, The Education Act 1993: Text and Commentary p 35-33, a passage very properly brought to my attention by Mr Bowen although it did not assist his case): The Government “do not expect this power to be used at all frequently” because “it is rare for a pupil to be excluded from or refused admission to all suitable schools in the area”. It is, said the Minister, “a new power to deal with the tiny minority of pupils who are unable to obtain a place at a school within a reasonable distance of their homes”.

In my judgment Mr Auburn’s argument is quite plainly correct. “Each” means “every”. It does not mean “a”. The contrary, with all respect to Mr Bowen’s ingenious submissions, is really quite unarguable.

Section 96 confers on the local authority a power in certain circumstances to direct the admission of a child to a particular school. Section 96(1) defines what those circumstances are. The only circumstances in which a local authority can exercise its powers under section 96 are if it is satisfied that the child in question has “been refused admission to … or … is permanently excluded from” what is described as “each school which is a reasonable distance from his home and provides suitable education”. Section 96(1), in other words, defines the relevant circumstances in which the power can be exercised and does so by reference to the school or schools which have already rejected the child. Section 96(2), on the other hand, read in conjunction with the additional words inserted in section 96(1) by the 2002 Act, defines the type of school in relation to which such a direction can be given. It must be “a school” which is a reasonable distance from the child’s home. It cannot be either a school for which the local authority is the admission authority or a school from which the child has been permanently excluded. But there is nothing to prevent the local authority, if the other requirements of sections 96(1) and (2) are met, giving a direction that the child is to be admitted to a school which has previously refused to admit him.

A simple example will illustrate the operation of section 96. Let us suppose that the only schools which, within the meaning of section 96(1), are a reasonable distance from the child’s home and provide suitable education are schools D, E, F, G and H. Let us also suppose that the child has been permanently excluded from schools D, F and G and refused admission to schools E and H. Let us further suppose that the local education authority is the admission authority for school E but not for school H. The circumstances plainly on any view satisfy the requirements of section 96(1) and the local education authority can therefore, if it chooses, exercise the power conferred on it by section 96(1). But it cannot give a direction in relation to schools D, F and G: see section 96(2)(b). Nor can it give a direction in relation to school E: see the additional words inserted in section 96(1). It can, however, give a direction in relation (and only in relation) to school H, notwithstanding that school H has already refused the child admission.

For obvious reasons, the reference in section 96(2) is to “a school”, because any direction will name only one school. But the draftsman has carefully used a different phrase – “each school” – in section 96(1). This cannot be an oversight or a mistake. When the draftsman intended to refer to “a” – one – school he showed himself perfectly able to do so. When he used the contrasting words “each school” in section 96(1) he plainly meant them to mean something different from “a school”; equally plainly he meant them to mean “each” in the sense of “every” school.

Mr Bowen places considerable reliance upon the amendment effected by the insertion of the additional words in section 96(1). He correctly submits that the effect of this was to narrow the provision, by limiting the type of school in relation to which a direction can be given. Whereas a direction could previously be given in relation to any school which satisfied the requirements of section 96(2), it can now be given only to those of such schools for which the local education authority is not the admission authority. That I can readily accept but it seems to me, with respect to Mr Bowen, to throw no light at all upon the meaning of section 96(1). As I have already pointed out, Section 96(1) defines the relevant circumstances in which the power can be exercised whilst section 96(2), on the other hand, read in conjunction with the additional words inserted in section 96(1) by the 2002 Act, defines the type of school in relation to which such a direction can be given. Thus the phrase “a school” which appears in the inserted words in section 96(1) relates forward to the corresponding phrase – “a school” – in section 96(2); it does not relate forward to the phrase “each school” in section 96(1) and cannot be used, as Mr Bowen would use it, to construe let alone to limit the meaning of the latter phrase.

Mr Bowen also submits that the local authority’s construction of section 96(1) has absurd consequences, save perhaps in a remote rural area, for there are, he says, no realistic circumstances in which the power could have any practical application. If the power is exercisable only when the child has been either refused admission to or permanently excluded from every school within a reasonable distance from his home, then, he submits, it is extremely unlikely that a child in an urban or metropolitan area will have been barred from every one of the many schools in his area. Mr Bowen, with respect, puts the point too high. I am prepared to accept that the effect of the local authority’s construction of section 96(1) is to limit the exercise of the power to only a few, perhaps a very few, cases. But that is nonetheless consistent with the kind of rational policy which Mr Auburn has suggested underlies section 96 and which, moreover, appears to have been in fact the policy of the Minister of State. If the local authority’s view of its meaning is correct, as in my judgment it plainly is, section 96 may be of limited – even, perhaps, extremely limited – practical application, but that does not make the local authority’s construction absurd.

Mr Bowen and Mr Auburn have referred me to certain commentators on section 96. Gold, The Education Act Explained p 115, discussing section 96 as originally enacted, and McManus, Education and the Courts (ed 2) p 299, discussing section 96 as amended by the 2002 Act, explicitly treat “each” as meaning “every”. Both therefore support Mr Auburn’s construction.

Mr Bowen has taken me to three further works: Morris, Education Act 93: A critical guide and two books by Professor Neville Harris, Law and Education: Regulation, Consumerism and the Education System and The Law Relating to Schools (ed 2). In Law and Education: Regulation, Consumerism and the Education System at p 139 and again in The Law Relating to Schools at p 168 Professor Harris treats the power to give a direction as extending to a case where “a child has been excluded permanently from a school” (Mr Bowen’s emphasis). In Education Act 93: A critical guide at p 136 the author says “It seems that such a direction could override an admission appeal committee decision”, continuing at p 137 with the rather Delphic comment that “(1)(b) appears to collide with (2)(b) and the reference to “each school in the area” – though the intention appears to be to rule out recourse to this section to override a permanent exclusion from a particular school”. Mr Bowen, relying upon these passages, and contrasting them with the works referred to by Mr Auburn, asserts that there is disagreement between the academic commentators as to the effect of section 96 and, in particular, as to the meaning of the phrase “each school”.

That as it seems to me is putting it rather high. I have been shown nothing to indicate that the Academy recognises any dispute as to the meaning of section 96(1). It is merely that a number of passages taken from various scholarly works are, so counsel would have it, inconsistent with each other. I think even that puts the matter too high. What Professor Harris says in Law and Education: Regulation, Consumerism and the Education System at p 139 and in The Law Relating to Schools at p 168 is correct, but, as I read them, all Professor Harris is doing in these two passages is to point out one of the consequences of section 96; he is not there setting out to define the circumstances in which the power is exercisable. The power to give a direction does indeed extend to a case where “a child has been excluded permanently from a school”, but Professor Harris is not saying that that alone suffices to justify use of the power. Nor is he asserting – and if he is he would be wrong: see section 96(2)(b) – that the power can be exercised so as to put a child back into a school from which he has been permanently excluded.

The passages in Morris’s Education Act 93: A critical guide at pp 136 and 137 are perhaps more troubling, though with respect to the author I have some difficulty in seeing exactly what point he is making. It may well be, as he says, that a direction can override an admission appeal committee decision, but I do not see how the point assists Mr Bowen. The question I am here considering is not the more general point canvassed by the author but the much narrower question of what is meant by the words “each school” in section 96(1), and finding the answer to that question is not, with respect to Mr Bowen, assisted at all by a consideration of the author’s wider point. More useful to Mr Bowen perhaps is the passage on p 137 but it is, as I have said, rather Delphic. I agree with the author’s comment that “the intention appears to be to rule out recourse to this section to override a permanent exclusion from a particular school”. That, as I have said, is plainly the effect of section 96(2)(b). What I have to say is more puzzling is the suggestion that “(1)(b) appears to collide with (2)(b) and the reference to “each school in the area”.” If he is here saying what Mr Bowen would have me accept then I have to say that the author is wrong. There is no “collision” or conflict between section 96(1)(b) and section 96(2)(b). They are, as I have pointed out, directed to different issues and, as the example I gave in paragraph [13] above demonstrates, capable of fitting together in an entirely rational manner. Nor, with all respect to the author, can I see any “collision” between section 96(1)(b) and the reference in section 96 to “each school”.

In my judgment there is nothing in any of these writings which provides Mr Bowen with any assistance. Indeed, I note in passing that in The Education Act 1993: Text and Commentary at p 35-33 Professor Harris refers to the comments of the Minister of State I have already quoted without passing any adverse comment and without suggesting that the statute in fact operates in a manner different from that contemplated by the Minister.

I was also referred to Hyams, Law of Education para 2-079, but since it is careful throughout to use only the statutory word “each” it throws no light on the point and I need make no further reference to it.

In my judgment section 96(1) is quite clear. I do not accept Mr Bowen’s complaint that the statute is “unhappily drafted”. It is not. Section 96(1) and section 96(2) fit together without the slightest difficulty. Their meaning is quite clear. The word “each” in the phrase “each school” means “each” – every – it does not mean “a”. The case is as short and simple as that.

Mr Bowen submits that the contrary is at least arguable and that I should therefore give B permission to apply for judicial review. He says that the local authority’s new point is not the ‘knock out punch’ required to defeat the application for permission. I do not agree. Despite the ingeniousness of Mr Bowen’s submissions the meaning of section 96(1) is quite clear. Out of deference to Mr Bowen’s arguments, and recognising the extreme gravity of the outcome for B and his parents, I have dealt with the matter in some detail and at greater length than any intrinsic complexity of the point truly merits. But at the end of the summary process upon which I have been embarked the outcome admits of no doubt. Section 96(1) means what Mr Auburn says it means. The contrary is quite unarguable.

I turn to the question of whether the local authority unlawfully fettered its discretion.

In the light of my conclusion on the first issue this question no longer arises. Whatever the parties may have thought at the time, section 96 was simply not engaged at all. The local authority had no power to do what the parents wanted. There was no discretion for the local authority to exercise. There was in fact only one answer the local authority could lawfully give to the parents’ request that it exercise its discretion under section 96: “the section is not engaged and therefore we (the local authority) cannot do what you (the parents) want.”

Had section 96 in fact been engaged I might have been persuaded to take a more favourable view than that which commended itself to Newman J. I am not so sure as he was that the local authority, if indeed it had a discretion, did not unlawfully fetter it. But I need not consider the point further for it no longer arises.

In my judgment this renewed application for permission to apply for judicial review fails and must be dismissed. Like the local authority, I sympathise with the parents’ wish for B to attend the X school. And I do not doubt the passionate sincerity of their belief that the Y school will not meet his needs. But the sad reality is that places are and must be limited and that B and his parents have failed to establish any even arguable legal basis for overcoming the X school’s refusal to admit him. They will, I am sure, understand that my function is necessarily very limited. I am concerned, and concerned only, with what must seem to them a cold and almost heartless point of law. They can be forgiven as parents if they think that their son’s education will turn out to have been blighted, as they see it, because of the difference between the two very little words “every” and “a”. But my duty is to give effect to what Parliament has said. It is not my function to adjudicate on the educational merits, let alone to decide which school is better for B. Parliament has vested that decision in others. My function is simply to decide whether in arriving at their decisions those “others” have obeyed the law.