Drayton Manor High School, R (on the application of) v The Schools Adjudicator & Anor

This is an application by the Governing Body of Drayton Manor High School in the London Borough of Ealing ("the school") for judicial review of the Schools Adjudicator's decision of 16 October 2008 which was as follows:

The oversubscription criteria which had been adopted by the school for admissions in September 2009 prior to the decision of the adjudicator were:

The school's governing body, following consultation, ratified these criteria and the school's admission policy in general on 18 March 2008.

A skeletal chronology thereafter shows that there was an objection by Ealing London Borough Council on 19 June 2008. On 2 October 2008 the adjudicator circulated a draft determination. It was also the opening date of expression of preference for the 2009/2010 academic year.

On 14 October 2008 the school commented on the draft determination. On 16 October 2008 the final determination of the adjudicator was sent out.

24 October 2008 was the closing date for expression of preference for the 2009/2010 academic year, although in the light of events this has been extended to 12 November 2008.

The brief procedural history of this litigation following the filing of the application at this court by the school on 17 October 2008 is that on the same date Sullivan J considered the claimant's application for interim relief and made an order in these terms:

On 21 October 2008 the matter came back before Mr Robin Purchas QC, sitting as a deputy High Court judge. He heard from counsel for the school, counsel for the adjudicator and counsel for the interested parties, and ordered that this case be listed for a rolled-up hearing on 27 October 2008 with a time estimate of half a day, the stay of the decision to continue until 27 October 2008, no further order as to publication, the filing and service of the acknowledgement of service be dispensed with and detailed grounds of defence, any skeleton arguments and evidence, if so advised, be filed by noon on 24 October 2008, costs reserved.

The hearing took place yesterday and in view of the importance and urgency of the matter I have ensured that judgment is given this morning.

Section 84 of the 1998 Act deals with the code for school admissions. It provides.

Section 89 of the 1998 Act deals with the procedure for determining admission arrangements. The "admission authority" for the school is the governing body by reason of section 88(1)(b) of the 1998 Act, the school being a foundation school.

Section 89, so far as material, states:

Finally, section 90, which was modified with effect from 30 June 2008, provides, again so far as material:

Finally Schedule 5 to the 1998 Act provides at paragraph 5(3):

And at paragraph 6(a):

The current version of the Code came into force on 28 February 2007. The relevant parts for the purposes of this case are:

These paragraphs in the Introduction draw a distinction between the mandatory requirements of the Code and the guidelines which relevant bodies should follow unless they can demonstrate, if challenged, that they are justified in not doing so. This approach to the guidelines is reiterated in paragraph 9 of the Introduction and paragraphs 2.16 and 4.3 of the Code itself.

The governing body, I should add, is a relevant body for the purposes of the Code.

(2) Paragraph 1.67, so far as material, states:

The Code contains prohibitions on unfair oversubscription criteria (paragraph 2.9). It is not alleged that the school is in breach of any of these specific prohibitions.

There then follows a section of the Code headed "Guidelines on setting fair oversubscription criteria," though it is clear from paragraph 2.15 that this section "provides guidelines for, and imposes mandatory requirements on, admission authorities in setting fair oversubscription criteria." The paragraphs in issue in this case are 2.31-2.35, which I shall now read:

The adjudicator outlined the details of the referral, his jurisdiction and the procedures he had used in coming to his conclusions. Then, in paragraph 7, he set out the London Borough of Ealing's objection to the school's oversubscription criterion number 3, and he continued to deal with that objection and the school's response and to give his conclusions. I believe it is important for me to set those out in full:

In short, the adjudicator found in paragraph 17 of his determination that the criterion in dispute failed to comply with paragraphs 1.67 and 2.34 of the Code and also by paragraph 2.35. It should be noted that he did not find a failure to comply with paragraph 4.6 of the Code, which has had been referred to by the London Borough of Ealing on the basis that the criterion "may encourage social segregation".

It is common ground that there is clear authority on this point under the provisions of the previous Code. In R v Schools Adjudicator, ex parte Metropolitan Borough of Wirral [2000] ELR 620 Latham J (as he then was) cited paragraph 4.9 of the then Code, which said that adjudicators "will look afresh at the issues raised by objections referred to them ..." The learned judge said at paragraph 20 of his judgment:

Earlier however, in paragraph 19, he had said that the provisions of the Act make it plain that the adjudicator has in effect an original jurisdiction. He cited sections 90(1) (3) and (6) of the 1998 Act in support of this. Those same provisions are reflected with no real changes to substance, so far as is relevant to this point, in the amended Act at section 90(1), (3) and (5C).

It is correct, as Mr Oldham for the school says, that the new Code does not provide that the adjudicator will "look afresh at the issues raised by the objections referred to them." The Code states:

Then at paragraph 4.22:

Clearly the adjudicator must consider objections, but I see no relevant change in the underlying statutory provisions and I therefore consider that the ruling that the adjudicator exercises an original jurisdiction still holds good.

Also relevant to my approach is the decision of Ouseley J in R (Wirral MBC) v Chief Schools Adjudicator [2001] ELR 574, where he said paragraph 43:

Finally, I accept the submission of counsel for the adjudicator that the court should approach the claimant's challenge with "an appropriate degree of caution", based on the words of Baroness Hale in the context of the Asylum and Immigration Tribunal in the case of AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 and 691, at paragraph 30, where the learned Baroness said:

I should in this section of the judgment also deal with the requirement of the adjudicator to provide reasons, since, as we shall see, this is one of the key challenges to his decision. Mr Oldham cited a number of High Court authorities in this regard, but it seems to me that such cases being very much on their own facts do not particularly assist. The central authority is that of the House of Lords in South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953, paragraph 36, in the speech of Lord Brown of Eaton-under-Heywood, who said:

These come under three broad headings: first, it is said that the adjudicator's decision was irrational; second, that he failed to provide adequate reasons; and thirdly, that he failed to follow the Code or misapplied the Code.

The school submits that the fact that an impoverished area (in this case to the north of the school) is disadvantaged by a criterion does not make that criterion inequitable, since the consequence of any oversubscription criteria is that some areas or communities would be disadvantaged. It further submits that the adjudicator (1) did not consider the effect of the proposed criterion and the inequities it would or might create inadequately or indeed at all, and (2) did not weigh these against what it perceived to be the inequities of the current criterion. It is said by the school that the criterion substituted by the adjudicator would or might create real inequities and that this was argued by the school in its representations to the adjudicator.

The particulars of this contention fall into two main categories. Firstly, impoverishment. There is an area of impoverishment to the east/south-east of the school showing the same degree of deprivation, so the school argues, on the material before the adjudicator as the deprivation to the area to the north. The school's argument is that the area to the east/south-east would itself be disadvantaged on the substituted criterion. Thus, they say, the current criterion could not be considered inequitable. Indeed, it is further said that to the south of a school is relatively wealthy area currently served largely by Elthorne Park High School and that the substituted criterion is very likely to result in increased admissions from this area, since the proximity of Elthorne Park will no longer count against applicants from this more affluent area in determining whether they should be given a place at Drayton Manor.

Secondly, lack of accessible schools. The school argues that to the east of the school is a large area with limited schools, one of which is an all girls school and another a Church of England High School. Therefore, in that area, it is said there will be disadvantage under the substituted criterion to families with boys or with girls who want mixed education and those who cannot or do not wish to go to a religious school. Further, they say that many families will have to travel significant distances to get to the school (cf. paragraphs 2.31-2.33 of the Code).

These points were before the adjudicator and are adverted to by him in paragraphs 11(c) (d) and (f) of his determination, which I have already set out earlier in this judgment. I have also earlier set out his conclusions on these points. In short, he found:

It seems to me important to focus first on the findings of the adjudicator. These are primarily found in paragraph 17 of his determination. He there concluded that there was a failure to comply with the Code because:

The failure to promote equity is a guideline imposed by the later part of paragraph 1.67 of the Code. The discrimination against economically less advantaged families unable to afford housing benefiting from the criterion is predominantly based on paragraph 2.34 of the Code, which contains a mandatory requirement to take account of factors that might unfairly advantage or disadvantage one child compared with another, but, on a distance criterion, contains also a guideline that admission authorities should ensure that families who are less able to afford properties nearest the school are not excluded.

In paragraph 14 of the determination the adjudicator, after a brief review of the data before him, concluded, as I have mentioned, that "the area disadvantaged by the disputed criterion is significantly less advantaged than the area which benefits from it." Based on the map provided by counsel and the supporting evidence, he was, in my judgment, entitled to find this, especially as he noted that the proportion of children living in the area excluded by the criterion who were entitled to free school meals is higher than in the area benefiting from the present criterion. This is notwithstanding the school's argument that there are deprived areas to the east of the school which benefit from the present, but not from the substituted criterion.

This narrow finding of fact on the material that was available to the adjudicator is, however, not an end to the matter, rather it is only the beginning. For there to be a finding of failure to comply with the Code it has to be found that the criterion did not "actively promote equity", (paragraph 1.64) or that the criterion "might unfairly advantage or disadvantage one child ..." (paragraph 2.34). In this regard, the school had made a number of points to the adjudicator, particularly those recorded by him at paragraphs 11(e) and (f) of his determination. If one looks at his conclusions, how did he address those points?

The school had submitted to the adjudicator that there was no breach of the Code because the substituted criterion would disadvantage in the east of the borough (i) those who are unable or unwilling to gain admission to a religious school, (ii) families with boys and (iii) families with girls who want mixed education — as there would be only one school for them, namely Acton High School, on the substituted criterion. One looks in vain for any reasons in the determination which address this submission. Therefore anybody reading the conclusions has no idea what, if anything, the adjudicator made of it and why. It is simply not dealt with. In my judgment this is a fundamental error. It is an error which goes to the heart of determining whether the existing criterion actively promotes equity and/or unfairly advantages or disadvantages one child compared with another.

It has been argued by Mr Hyams, for Ealing LBC, that the only disadvantage could be that of transport and travel, which the adjudicator addressed in paragraph 18 of his determination. I do not accept this on three bases:

Mr Hyams, in a supplemental submission received by me at about 10.15 this morning, submits that the exchange relevant to the disadvantaged parents of pupils who live to the east of Drayton Manor High School in a meeting on 15 September 2008 between members of the school's governing body and the adjudicator, shows that the school referred only to distance from home to school as a potential disadvantage. I have looked at the relevant extract from that meeting, and I quote it in full:

Further in this regard, I refer to the letter dated 22 September 2008 sent by the school's solicitor to the Officer of the Schools Adjudicator, and quote an extract from it under the heading "The rationale of the policy". It reads:

It seems to me that the letter of 22 September 2008, and in particular the parts I have underlined, and in any event that which was necessarily inherent in the whole discussion of 15 September 2008 was the lack of local choice in the east, save for Acton High School and the problems in getting into that school, even if a child wished to go there. This was particularly apparent also in the underlined part of the oral response which I have read, namely, "and will not have the opportunity of going to their nearest Ealing high school."

Finally, in a letter from the school's solicitor dated 14 October 2008 in response to the adjudicator's draft determination, the following was said:

For those reasons I do not accept the points made in Mr Hyams' supplemental submission.

Furthermore, the absence of assessing and properly determining the impact on children to the east who would be excluded by the substituted criterion, affects, in my judgment, the validity of the travel and transport finding at paragraph 18 of the determination, especially in the light of the suggestion (not specifically dealt with by the adjudicator) that this might lead to 4 to 5-mile journeys to Southall.

Therefore it follows that the adjudicator's determination must be quashed for failing to provide adequate reasons and/or failing to take into account a central plank in the school's case (cf. paragraphs 43 of the decision of Jackson J (as he then was) in Governing Body of the London Oratory School and others v Schools Adjudicator [2004] EWHC 3014 (Admin)).

I turn finally to deal with the two remaining submissions of the school. The first is that the adjudicator's decision should be quashed on the basis that he wrongly regarded children in the less advantaged north of the borough as a "social group" for the purpose of the paragraph 1.67 of the Code. It is true that the adjudicator recites this part of paragraph 1.67 in paragraph 16 of his determination, but I do not accept that he relied on those parts of the paragraph in coming to his conclusion in paragraph 17.

It is also argued by the school that the fact that he was guided by paragraph 2.35 of the Code is a reason for quashing his decision. I accept that the adjudicator should not have based his decision on paragraph 2.35 of the Code, this not being a catchment area case, but in my judgment he did not do so. His conclusion was on non-compliance with the second part of paragraph 1.67 and on paragraph 2.34 of the Code, and that conclusion stands or falls on its own merits for the reasons already given and not because of reference to paragraph 2.35 it falls.

Secondly, the claimant contends that even if the determination were not to be quashed it is too late to implement it and therefore it should be quashed on this other basis. This does not arise in my judgment. The case was put in this way in the claimant's skeleton:

Evidence was put in yesterday by the London Borough of Ealing which went a long way to meet those objections. Because of speed of the hearing and problems with counsel dealing with late evidence, the determination on this point is difficult. However, it seems to me, first, that Ealing's objection was well in time. In fact the relevant Regulations allow for objections up to 31 July in any one year. Secondly, it is apparent from the late evidence that the following steps have been taken, and I read from the letter of the London Borough of Ealing to the school's solicitors dated 24 October 2008:

Mr Oldham for the school said that he still had concerns because it was not known whether boroughs outside Ealing would extend the time and, it being half-term, the notice of the change would be very short. However, if I were not going to quash the decision on the grounds other than time, I would not be persuaded on the material available to quash it on time alone.

In the event, I grant permission to bring judicial review proceedings and I quash the adjudicator's determination.

I shall now hear counsel on the point made in Mr Oldham's skeleton that in view of the time frame it should not be remitted for redetermination.

MR OLDHAM: My Lord, I am grateful and I am sure we are all grateful to your Lordship for having produced a very full judgment in such a short time.

On that issue there is judicial authority on the very point. In the Oratory School case --

JUDGE STEWART: I appreciate that. I do not know if it is controversial or not, whether it I should send it back for determination.

MISS BROADFOOT: My Lord, we have a difficulty with this as a matter of principle. Can I just say one thing about your Lordship's judgment. I think your Lordship quoted the old version of section 90(3). If I can just provide one correction. I think your Lordship said, section 84(3), sorry, your Lordship said that there was a duty to have regard to the Code, but actually the amended version is to comply with the Code. It may be that your Lordship picked up a quotation from a case.

JUDGE STEWART: No, I picked it up from the statutes I was given by previous.... Anyway, I shall amend that.

MR OLDHAM: For your Lordship's note the updated Act is at tab 1 of the joint authorities bundle.

MISS BROADFOOT: That is right, and it is page 2 of 16 and it is at the top, subsection (3), "it shall be the duty of" and then it is "to act in accordance with any relevant provision." That is the Code and I think your Lordship said "to have regard to" --

JUDGE STEWART: I did.

MISS BROADFOOT: -- which is incorrect.

JUDGE STEWART: This was under the heading of the statutory framework.

MISS BROADFOOT: That is right. Your Lordship quoted section 84(1), (a), (b), (c), (d), (e).

JUDGE STEWART: (1) is the same, I think, and (2) and (3) are different, so --

MISS BROADFOOT: I did not spot the difference in (2). Your Lordship, looking at that again your Lordship is right.

JUDGE STEWART: So where I read out previously subsections (2) and (3), they be should be substituted these words:

Thank you very much. I do not think it makes any difference to the basis for the reasoning.

MISS BROADFOOT: No. My Lord, in relation to what your Lordship should do now, I am aware of the London School authority, where the court simply quashed the decision and then there was a decision about what the effect of that was. It seems to me, in my respectful submission, that there is a difficulty if your Lordship simply quashes the decision because there is then an outstanding unresolved objection, and I have been unable to work out whether, if your Lordship does not make the order that it be remitted, that the adjudicator effectively remains functus or whether in fact, even if your Lordship does not remit it, the adjudicator still has a statutory obligation to determine the outstanding objection. In my respectful submission, the position properly viewed is that if your Lordship quashes the decision then there is an outstanding objection which needs to be dealt with, and in my respectful submission your Lordship should leave it at that and not assume that the adjudicator will take one course or another course about how he then approaches it.

JUDGE STEWART: I should just quash the decision and make no further order; am I understanding your submission correctly?

MISS BROADFOOT: I think that is probably right. Quash the decision, but our position is that there will still be this outstanding objection that needs to be dealt with. I have not had the opportunity to speak to Mr Oldham about his views on whether there is a difference, whether your Lordship technically remits it or not, but if there is no decision --

JUDGE STEWART: Sorry, did you say you have had a chance?

MISS BROADFOOT: No, I have not. I do not know what Mr Oldham wants to say about that.

JUDGE STEWART: Do you want me to give you an opportunity to consider this matter?

MR HYAMS: My Lord, if I may. Your Lordship has concluded that had there were not sufficient reasons for one aspect of the adjudicator's decision and the jurisprudence on the effect of a failure to give sufficient reasons is slightly diverse. Some cases are to the effect that it is necessary in a situation such as this to quash the decision and some cases to the effect that it is possible to remit the matter for the decision-maker to deal with the matter and then give further reasons. I personally would like a little time to have a look at that before I address your Lordship on that.

MR OLDHAM: My Lord, I am a little bit surprised that my learned friend really needs more time to visit the matter, but if your Lordship felt that that was the right thing to do then I would not stand in my learned friend's way. I am really in your Lordship's hands. Of course, I am more than happy to talk to my learned friends. My position, I should make is absolutely clear, will be that there should be a quashing and that would be in the expectation that the adjudicator would leave the matter, for submissions I can make. If the adjudicator was really concerned about the issue of there being an outstanding objection, two points: (1) that was the same situation in the Oratory School; (2) if he still feels that, subject to any order your Lordship makes he has to do something, then perhaps by consent he could be injuncted. It is entirely a matter for my learned friend, but I do not want to burden your Lordship unnecessarily with submissions if I can work it out with my learned friends.

JUDGE STEWART: No. I have already said in the absence of any specific submission that I will quash, but if there is a further submission that I ought to take some further action then I will listen to that from Mr Hyams. I think the matter is so important and we have dealt with it with goodwill on all sides pretty swiftly. I think it would be shame to fall into error for the reason of not giving a bit of time.

MR OLDHAM: Certainly, my Lord.

JUDGE STEWART: There may be other reasons to fall into error, but I do not want to do it for that reason.

MR OLDHAM: Of course, my Lord. I do not want to stand in the way of cooperation for any reason.

JUDGE STEWART: How long am I being asked for?

MR HYAMS: My Lord, I am not asking for very long. I think I can look at this point in about 20 minutes.

JUDGE STEWART: Shall I come back at 12.30?

MR HYAMS: I would be very happy with that.

JUDGE STEWART: Would that help you?

MISS BROADFOOT: Yes, my Lord.

JUDGE STEWART: We should, one way or another, although I may have to do a short judgment, we certainly should finish the argument by 1.00.

MR OLDHAM: Indeed, my Lord.

JUDGE STEWART: I think I need to take away with me the authority, which is number...?

MR OLDHAM: It is number 7, my Lord, and the section your Lordship will be interested in in particular is paragraph 61 and following, which is the last photocopied page of the judgment, in particular from paragraph 63 onwards.

JUDGE STEWART: I will come back at --

MISS BROADFOOT: My Lord, I am sorry, I have just had confirmation that we are happy for your Lordship just to quash it and we are happy with that and to leave it at that. My Lord, I have managed to speak to those behind me.

JUDGE STEWART: I am not sure if they are happy that I just leave it.

MR OLDHAM: I am not sure what my learned friend is saying, because if it is simply quashed then I am not sure whether my learned friend is undertaking that the adjudicator will not seek to redetermine the matter.

MISS BROADFOOT: I am not making any undertakings.

JUDGE STEWART: I will give you until 12.30.

MISS BROADFOOT: I am very grateful.

MR OLDHAM: Your Lordship is quite right that the time allowed us to reach agreement. We are very grateful.

My Lord, on the issue of relief further to a quashing order, my learned friend for the adjudicator and I are agreed, with Mr Hyams being neutral I believe. We will see how long that lasts, my Lord, but for the moment neutral. There should be an order in these terms. Your Lordship should quash the determine and remit the matter to the adjudicator, with a direction that the objections not be upheld. So that satisfied my learned friend's understandable concern.

My Lord, for your Lordship to note, if your Lordship is interested, that seems to me to be compliant with CPR 54.19(2), which I can read, which as you know says:

JUDGE STEWART: If that is a consensual position, as a result of the primary findings I have made, then so be it.

MR OLDHAM: I am most grateful.

JUDGE STEWART: I am aware of the jurisdiction and I checked in this book as well.

MR OLDHAM: I am apologise for burdening your Lordship with it.

My Lord, I think the other only issue is costs and again I think there is a measure of agreement, if not entire agreement. My learned friend for the adjudicator agrees to pay our costs of the entire action, to be assessed if not agreed.

JUDGE STEWART: So there is no summary assessment?

MR OLDHAM: There is no summary assessment. We do not have a schedule of costs, I am afraid.

JUDGE STEWART: I suppose actually it has taken more than one day in any event.

MR OLDHAM: It has, my Lord, that is right. My Lord, of course I and my learned friends will draft an order which we can send up to your Lordship through the normal channels. I do not know think there are any other matters, subject to what my learned friends say.

MISS BROADFOOT: Could we ask for an expedited transcript? I think your Lordship has to make an order for the transcript to be available more quickly than it otherwise would be.

JUDGE STEWART: And the reason for that is?

MISS BROADFOOT: My Lord, because the matter has come on very urgently and your Lordship has given a very full judgment and although we have taken a note, there are clearly going to be matters that need to be taken back to my clients for consideration as to how we possibly look at other cases that are before them at the moment.

JUDGE STEWART: Right. If I have the power I will exercise it, because I think it is very important and urgent.

MISS BROADFOOT: I am grateful.

MR OLDHAM: Nothing else, my Lord.

JUDGE STEWART: That is it. Thank you very much.