A, R (on the application of) v West Hatch High School

SIR RICHARD TUCKER: I have before me an application for judicial review pursuant to permission granted by Grey J. This was on the sole basis that it is arguable that the admission to the school of the claimant's daughter, 'S's siblings constitutes a material change of circumstances which requires the application to be reconsidered. However, the learned judge said the judge hearing the application may hear argument on other grounds.

S is now 12 years old. She would normally be in year 7 if she were at school but at present she is out of school. The claimant seeks a determination by the defendant that S is either eligible or ineligible to be taken into school. Her complaint is that the defendants, by letter of 12th October 2004, have informed her that her request for S to attend school will not be considered by the admissions committee as there has been no significant change in the circumstances of the case since the last application.

The claimant wants her daughter S to be admitted to the school which her brother and sister now attend. She recognises that she has no automatic right to that. The parties agree that if the claimants were to apply for a year 8 place in September, the defendants would have to determine whether to give her a place. If they decided not to do so, an appeal would lie to a statutory appeal panel. However, the claimant wants a decision to be taken now for year 7 so that S can attend school in the summer term or, if it goes against her, she can appeal.

The difficulty arises out of the fact that this is a mid-year application and that it is the second such challenge. Paragraph 4.83 of the School Admissions Appeals Code of Practice provides as follows:

The claimant is separated from her husband. Unfortunately, she and all her four children suffer from a variety of ailments and disabilities. In particular, S suffers from eczema and asthma. The claimant feels that it is very important to her that all her school age children should attend the same school. She sets out her reasons for this in paragraph 5 of her first witness statement. In addition, the claimant's sister has children at the school.

The problem arose out of the fact that the claimant moved home and into the area of West Hatch High School after the deadline for applications in December 2003. She and her children now live just under a mile from the school. The claimant applied for the three children to be admitted to the school. Her younger son 'Z' was granted a place dependant on his GCSE results. On 25th March 2004 the claimant was notified that S's application was refused because the school was heavily over subscribed and available places had already been allocated. She appealed against that decision. In her grounds of appeal she stated that she applied for permission for all three children and that she needed them in the same school because of illness. She was supported by a note from her doctor.

On 6th July the appeal was rejected. The panel considered that to comply with the claimant's preferences would prejudice the provision of efficient education and the efficient use of resources. The panel did not feel there was sufficient reason to outweigh that preference, and there were no overriding factors arising in her case.

Meanwhile the claimant's elder daughter, 'SA', had also been refused admission and the claimant had appealed against it. In her case, by letter of 30th September the panel allowed the appeal. They stated that the medical circumstances of SA and her family and the wish to meet SA's educational, promotional and social needs could best be met by her attending the school, and that these outweighed the prejudice that would be caused to the school.

The result was that by September 2004 the two older siblings were admitted to the school but S was not. I do not need to be persuaded of the disappointment and inconvenience that the situation caused the claimant. She made a further application for S's admission. The reason she gave was that S's older brother and sister were attending the school. The admissions committee refused to consider this request on the grounds that there had been no change of circumstances since the last application.

Mr Rawlings for the claimant describes S's present position as being in limbo. She cannot attend this school and she cannot bring an appeal to the panel. He submits that the position of S is inconsistent with that of her sister, SA. The defendant's attitude is that if one applicant is successful at appeal it does not give a family an automatic right to get other siblings into the school. Mr Rawlings does not say that. His submission is that there has been a significant change in circumstances, brought about by the fact that the two other children have now been registered at the school. Mr Rawlings draws attention to letters from the social worker and the doctor, written in December 2004 which were not before either the appeal panel or the defendants. It is to be noted that when talking of the medication required for S's eczema, the doctors state that it does not need to be applied during school time.

Mr Rawlings bases his challenge on irrationality and failure to take account of relevant factors. He submits that given the change of circumstances in September or October 2004, by which time the two older children had places in the school, it cannot be right for the defendant to say that is not a material change. He points out that in July the claimant had the chance to put all three children into one school, but now two of them are in one school and the third is not. To suggest that that is not a material change in circumstances is, in his submission, untenable, irrational and unreasonable. The relevant factors which he contends were not considered properly or at all are the letters from the social worker and the doctor.

I was informed that S has been offered a place in another school. It is seven miles from her home but transport will be provided. Mr Rawlings also sought to rely on a ground which was not raised in the grounds of application and upon which the single judge did not rule. This relates to an admission mid-year and into other year groups. Paragraph 6 provides that if requested, unsuccessful applications will be held on file in strict date application order and reconsidered in date order if a place becomes available. There are passages in the School Admissions Code of Practice which suggest that such criteria are unlawful. Mr Hyams for the defendant submits that it is unfair to seek to rely on this when it has not been raised before. He did not ask for an adjournment but he points out that it was not a matter upon which permission was granted and, in any event, it is irrelevant. I agree.

In my view the sole issue for consideration in this case is whether the claimant has made out her claim that there were "significant and material changes in the circumstances of the parent, child or school relevant to a further application". What circumstances were different and how could they affect the application? The medical needs of the child had not changed, certainly not as affecting the manner in which the child had to be transported to or from school. There was no pressure to look for special treatment or for S to be accompanied while at school. There was nothing in the doctor's note to indicate that S would require treatment while at school.

Mr Hyams submits, and I agree, that there cannot be said to be change of circumstances simply because the two other children were admitted to the school when the second application was made. It was always the hope and intention of the claimant to have her three children educated at the same school. That was true at the time of making both applications. Nothing has changed in that respect.

There was another matter raised by Mr Rawlings to which I ought to refer. He sought to place some reliance on the fact that in mid-year applications the defendants remove the siblings criteria, stating that it is simply for initial seven year applications only. Mr Rawlings submitted that this is unlawful. I disagree with his submission. In my view, it is perfectly understandable and permissible for the defendants to apply this criterion, which they expressly and clearly do only to initial seven year admissions. The fact that the defendant applied that criteria at one stage and not another must not render it unlawful.

Accordingly, I conclude that the claimant has not made out a case for judicial review. I find that there was no sufficient material change of circumstances. I find that the defendants were entitled to rely on mid-year admission criteria to refuse to consider the application. Nevertheless, I have considerable sympathy for the claimant in her unhappy circumstances and difficulties and it is to be hoped that the defendants will make it possible to find a place for S as soon as practicable so that all three school aged children can be educated at the same school.

Are there any applications arising from that?

MR HYAMS: My Lord, I do ask on behalf of the defendant for an order for costs where the claimant is legally aided.

SIR RICHARD TUCKER: Are you legally aided?

MR RAWLINGS: My Lord, yes.

SIR RICHARD TUCKER: So you will not get very far, will you Mr Hyams.

MR HYAMS: I asked for it without my solicitor being here and being able to take instructions.

SIR RICHARD TUCKER: Are you asking me for a conditional order?

MR HYAMS: That is the old form of the order, my Lord. There may be a different form now. Not to be enforced without permission of the court.

SIR RICHARD TUCKER: That will not harm you, will it?

MR RAWLINGS: My Lord, no I cannot resist that.

SIR RICHARD TUCKER: Very well, defendants may have an order for costs not to be enforced without leave of the court.

MR HYAMS: Thank you my Lord.

MR RAWLINGS: Thank you my Lord.