DD, R (on the application of) v Independent Appeal Panel of the London Borough of Islington & Anor

This is the substantive hearing of the claimant’s application for judicial review of the defendant’s decision dated 13 July 2012 (see 26 in the bundle) by which it dismissed the claimant’s appeal against the decision of the London Borough of Islington to refuse to comply with the claimant’s preference for her son LD to attend T primary school in the reception year, permission having originally been refused both on paper and at the renewed oral permission stage but having been granted limited to one ground by Goldring LJ on 9 May 2013 in these terms: -

“Not without hesitation I have decided to grant permission on ground 1 to apply for judicial review. There is a plainly arguable point in ground 1. I find it difficult to see where prejudice to third parties arises. A refusal to grant permission prejudices DD. My concern is that by the time this case is decided the first year will virtually be over.”

At the outset of the hearing I was asked formally to join the Secretary of State for Education to the proceedings. The application was unopposed and I granted it.

This case therefore concerns the single issue of the correct test to be applied by an Independent Appeal Panel (“The Panel”) when considering a case in which a child has been refused a place in an infant class not on grounds that the admission of an additional child would breach the statutorily imposed infant class size limit of 30 children per class in the first academic year that the relevant child attends the school, but on the grounds that it would require steps to be taken to avoid a breach that limit that in subsequent years, (what has been referred to as “future infant class size prejudice”).

This issue arises because the grounds of appeal against a decision to refuse a place to an infant in a class of 30 children are narrower than those for a refusal of a place in a class that has fewer than 30 children. In the present case, which is a case of future infant class size prejudice, the defendant treated the appeal as what is known as an “infant class size appeal” and held that none of the limited grounds on which such an appeal could be upheld had been met.

The claimant contends that the Panel was wrong to treat the claimant’s appeal as an infant class size appeal under section 4 of the 2012 version of the Schools Admissions Appeals Code (The Appeals Code). The claimant says that, because the limit on infant class sizes would not have been breached in her son’s first academic year at the school if he had been admitted, her appeal should have been treated as an “ordinary” appeal pursuant to section 3 of the Appeals Code and in doing so she relies heavily on the absence in the Appeals Code of any explicit reference to any requirement to consider the possibility of both current and future infant class size prejudice in deciding whether to comply with a parental preference, unlike in the case of the previous statutory scheme and indeed an earlier edition of the Appeals Code issued in 2009.

The defendant and the Secretary of State’s position is that the Panel correctly treated the claimant’s appeal as an infant class size appeal and properly directed itself that when considering whether the admission of the claimant’s son to T primary school would cause prejudice to the efficient use of resources or efficient education through the need to take measures to avoid a breach of the class size limit it was to look not just at the academic year when the claimant would first enter T primary school but also subsequent academic years 1 and 2 since, in the light of the important statutory policy limiting the size of infant class sizes, had either Parliament or the Secretary of State intended that such nice distinctions be drawn as the claimant submits should be, they would have been expected to say so expressly. Neither of them did so and the claimant’s suggested approach accords neither with the statutory scheme nor the Appeals Code, any explicit reference to future infant class size prejudice being unnecessary on an ordinary reading of the words of the Appeals Code.

Moreover it is said that the organisation of infant classes in the way that T primary school organises them, which is also done in other schools, achieves the desirable aim of accommodating very young children who are starting school for the first time in smaller classes than would otherwise be the case. If the claimant were correct, it was said, primary schools such as T primary school would either be faced with abandoning such a way of organising their infant classes or they would be faced with the likelihood of having more than 30 children in classes in years 1 and 2 thus undermining a desirable and important objective underpinned by legislation, a submission vehemently opposed by the claimant.

The defendant also submitted that the Panel was entitled to interpret any ambiguity that there might be in the Appeals Code so as to produce what it submitted was the only reasonable outcome, namely that future prejudice was relevant and that any interpretation of the Appeals Code which would lead to a near certain breach of the infant class size limit in the future was perverse. In the alternative, the defendant also submitted that in any event the court ought to exercise its discretion against granting the relief sought on the grounds of (1) undue delay causing prejudice to the defendant and detriment to good administration; (2) that the alleged illegality made no difference to the ultimate outcome; and/or (3) that the granting of relief would cause disruption to the defendant, the admission authority and T primary school which was disproportionate to the harm caused to the claimant

The factual background in this case is largely un-contentious. T primary school admits up to 45 children each year. The incoming cohort is split into 2 reception classes which at the material time contained 22 and 23 children respectively. Thereafter the youngest 30 in years 1 and 2 are placed into 1 class; the oldest 30 are placed in another class; and the middle 30 (comprising 15 from each of the two year groups) are placed in a third class, the consequence of which is that the reception classes never contain 30 children but unless a child leaves the infant primary school before the reception class moves up to key stage 1, it feeds into full years 1 and 2.

By application dated 12 January 2012 the claimant applied to the London Borough of Islington for a place at a primary school in the reception year. She expressed a preference for four schools the first being T primary school. For the September intake, T primary school received 173 applications for its 45 places and therefore had to apply its over subscription criteria. Under those criteria priority was given to children meeting various criteria including distance between the child’s home and the school. The last child admitted to the school lived 0.279 miles from the school whereas LD lived 0.306 from the school. Accordingly all 45 places at T primary school were lawfully filled by children with higher priority under the school’s over subscription criteria than LD.

By letter dated 18 April 2012 (C1 in the bundle) the Admissions Authority refused to comply with the claimant’s preference for a place at T primary school as it had filled all 45 places for the year with higher priority children. The claimant concedes that the decision of the Admissions Authority was lawful and no challenge is made to it.

On 25 April 2012 the claimant appealed the decision of the Admission Authority on grounds in essence that T primary school was more academically and socially suited to her son than another school would be (C3-4 in the bundle). At a hearing on 10 July 2012 the defendant accepted that the admission of the claimant’s son would not breach the infant class size limit in the current year but that it would probably breach that limit in future years. However, by a decision dated 13 July 2012 (C26 in the bundle) the defendant nonetheless treated the appeal as an infant class size appeal, applied the narrower test and decided that the claimant’s case did not meet that narrower test and dismissed the appeal, rather than, as the claimant contends should have happened, applying the “ordinary” appeals test. The material paragraphs of the decision dated 13 July 2012 are as follows:-

“The Panel noted your representative’s contention that L’s appeal would be dealt with under paragraph 3 of the Appeals Code process, rather than under paragraph 4 of the Appeals Code process which dealt with infant class size appeals. The Panel took account of paragraph 4.1 of the Code that states “regulations made under section 1 of the School Standards and Framework Act 1998 limit the size of an infant class (a class in which the majority of the children will reach the age of 5, 6 or 7 during the school year) to 30 pupils per year”. The Panel took the view that whilst there may not be infant class size prejudice in reception year, there would be prejudice in future years and therefore the Panel should deal with L’s appeal under infant class size prejudice procedures.

The Panel, whilst sympathetic to your arguments decided not to uphold your appeal as the Panel felt that the decision to refuse admission was one that a reasonable authority would make in the circumstances of the case. The Panel was satisfied that the Admissions Authority had applied its procedures correctly and lawfully, and that it would be prejudicial to admit another child over the standard number.” (C pages 27 and 28)

The claimant home schooled her son until 20 May 2013 when she enrolled him at B School in the London Borough of Camden. She however remains keen to transfer her son to T primary school if possible.

Ultimately this claims turns on the proper interpretation of the Appeals Code which, it is common ground, should be read as a whole and in accordance with the natural and ordinary meaning of the words used in the light of the context in which it was published and regard should be had to the purpose and underlying objectives of the Appeals Code. The intentions of the Secretary of State are thus to be objectively determined by a court and not for example though subjective correspondence from or on behalf the Secretary of State.

Pursuant to section 1(1) and (2) of the School Standards and Framework Act 1998 (SSFA 1998), the Secretary of State is required by regulations to impose a limit on the size of infant classes at maintained schools. Under section 1(3) the limit imposed must specify the maximum number of pupils that a class to which the limit applies may contain while an ordinary teaching session is conducted by a single qualified teacher. Pursuant to section 1(3), such regulations must be framed so that the maximum number of pupils specified is 30.

Section 4 provides that a “class” means “a group in which pupils are taught in an ordinary teaching session” and an “infant class” means “a class containing pupils the majority of whom will attain the age of 5, 6 or 7 during the course of the school year”. In practice, infant classes are the classes in reception the year and in years 1 and 2 of a primary or junior school.

When the infant class size limit was first introduced, Parliament made specific provision for the situation in which the infant class size limit would not be breached in the current year, but would be breached in future years. This was because at the time it was introduced, although the infant class size limit would not take effect until the academic year 2001-2002, the 1999-2000 intake would become subject to the new maximum class size in their third year of schooling. In order to deal with this situation transitional arrangements were therefore introduced by the Education Act 1996 (Infant Class Sizes) (Modification) Regulations 1998, which made various amendments to the Education Act 1996. In particular they amended section 411 of the Education Act 1996 by adding a new section 411(3A) and section 411(10) as follows:-

“411.

Parental Preferences …

(2)

A Local Education Authority and the governing body of a county or voluntary school shall comply with any preference expressed [by a parent for a particular school]

(3)

The duty imposed by subsection (2) does not apply –

(a)

if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources

(3A) For the purposes of subsection (3)(a) prejudice of the kind referred to in that provision may arise by reason of any qualifying measures

(10)

In this chapter “qualifying measures” in relation to the admission of a child to a school means measures required to be taken (whether in the school year in which the admission would take place or in any subsequent primary school year) in order to ensure compliance with the duty imposed by section 1(6) of the School Standards and Framework Act 1998.”

The transitional provision in section 411 of the Education Act 1996 therefore expressly defined infant class size prejudice by reference to a breach of the infant class size limit in the current or any future academic year. That section was however repealed on 1 September 1999.

The Education Act 1996 (Infant Class Sizes) (Modification) Regulations 1998 were themselves repealed and replaced by the School Admissions (Infant Class Sizes) (England) Regulations 2012 (the 2012 Regulations) which came into force on 1 February 2012. Regulation 4 of the 2012 Regulations provides:-

“4 Limit on infant class size

(1)

No infant class may contain more than 30 pupils while an ordinary teaching session is conducted by a single school teacher

(2)

Where an ordinary teaching session is conduct by more than one school teacher, the class may not contain more than 30 pupils for every one of those teachers”

The 2012 Regulations also provide for an exception to be made to the infant class size limit of 30 where a pupil is an “excepted pupil”.

Pursuant to Regulation 4(3), where an infant class contains any excepted pupil, the limits laid down by Regulation 4(1) and (2) apply as if the excepted pupil were not included in the class. Regulation 5 provides that an excepted pupil is a child to whom any of paragraphs 2-11 in the Schedule to the 2012 Regulation apply, although in effect a child will cease to be an excepted pupil if numbers in his or her class fall to 30 or less. It is relevant to note that paragraph 6 of the Schedule to the 2012 Regulations provides that “a child admitted to the school outside a normal admission round by virtue of a determination of an appeal panel in accordance with section 94(6) of SSFA 1998” is an excepted pupil.

Neither the 2012 Regulations nor section 86 of SSFA 1998 include an equivalent of the phrase in the now repealed section 410(11) of the Education Act 1996 referring to future infant class size prejudice.

The Admission Authority for a maintained school is defined by section 88 of SSFA 1998. Depending on the category of school concerned, it’s either the governing body of the school or the maintaining Local Authority. Accordingly the Admission Authority for a maintained school is subject to the duty imposed by section 1(6) of SSFA 1998 in relation to infant class sizes.

The functions of an Admission Authority in relation to applications for admission to a school are provided for by section 86 of SSFA 1998. In so far as relevant that section provides as follows:-

“86 Parental Preferences

(1)

A Local Authority shall make arrangements for enabling a parent of a child in the area of the authority –

(a)

to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority’s functions; and

(b)

they give reasons for his preference

(2)

Subject to subsection (3) and section 87 (children excluded from 2 or more schools), the Admission Authority for a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1) .

(3)

The duty imposed by subsection (2) does not apply –

(a)

If compliance with the preference would prejudice the provision of efficient education or the efficient use of resources; …

(4)

For the purposes of subsection (3)(a) prejudice of the kind referred to in that provision may arise by reason of measures required to be taken in order to ensure compliance with the duty imposed by section 1(6)(duty of local authority and governing body to comply with limit on infant class sizes).

(5)

No prejudice shall be taken to arise for the purposes of subsection (3)(a) from the admission to a maintained school in a school year of a number of pupils in a relevant age group which does not exceed the number determined under section 88C or 89 as the number of pupils in the age group that it is intended to admit to the school in that year;”

It follows therefore that an Admissions Authority need not comply with an expression of parental preference if to do so would prejudice the provision of efficient education or the efficient use of resources.

Section 94(1)(za) of SSFA 1998 requires a Local Authority to make arrangements for a parent to appeal against its decision in any case where the Local Authority is itself the Admissions Authority for a school.

Section 95(5) requires an appeal to be made to an appeal panel constituted in accordance with regulations made by the Secretary of State. The relevant regulations are the School Admissions (Appeals Arrangements) (England) Regulations 2012 which relate only to the constitution of and payment of allowances to appeal panels but unlike the predecessor regulations, which were the Education (Admissions Appeals Arrangements) (England) Regulations 2002 (SI 2002/2899), they do not make provision for the grounds on which an infant class size appeal could succeed and say nothing about the definition of infant class size prejudice or future infant class size prejudice.

Section 95(5A) empowers the Secretary of State to make regulations as to the making of such appeals, including regulations as to the grounds on which an appeal may be upheld where the decision of the Admissions Authority to refuse a place at a school was that prejudice of a type described in section 86(4) (i.e. infant class size prejudice) would arise.

Pursuant to section 84(1) of SSFA 1998 the Secretary of State is required to issue a code for school admissions containing such provisions as he thinks appropriate in respect of the discharge by local authorities and governing bodies of maintained schools and admissions panels of their respective functions in relation to school admissions. Under section 84(2), the Code may impose requirements and may include guidelines setting out aims, objectives and other matters and, pursuant to section 84(3) local authorities, governing bodies of maintained schools and admission panels are under a duty when exercising relevant functions to act in accordance with any relevant provisions of any code.

In fact the Secretary of State has issued 2 codes: the School Admissions Code and the Appeals Code. Both came into force on 1 February 2012, the same date on which the predecessor Regulations were revoked.

The Appeals Code contains two different sections dealing with the approach to decision making that should be adopted by Panels. Section 3 applies to “all appeals except infant class size appeals” (see paragraph 3.1) whilst “infant class size appeals” are dealt with in section 4.

Pursuant to paragraph 4.2 of the Appeals Code, section 4 applies “where an Admission Authority refuses to admit a child on the grounds that the admission of an additional child would breach the infant class size limit and there are no measures it could take to avoid this without prejudicing the provision of efficient education or efficient use of resources.”

Where section 4 of the Appeal Code applies, paragraph 4.4 sets out four matters that the Panel must consider:-

“The Panel must consider all the following matters:

(a)

whether the admission of an additional child/additional children would breach the infant class size limit;

(b)

whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the Schools Admissions Code and Part 3 of the Schools Standards and Framework Act 1998;

(c)

whether the admission arrangements were correctly and impartially applied in the case(s) in question; and

(d)

whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case.”

Paragraph 4.4(a) therefore refers to a breach in the infant class size limit and not specifically to infant class size prejudice. If a Panel admits a child in circumstances where the limit on infant class size would be exceeded the child will be an excepted pupil.

Paragraph 4.6 of the Appeals Code sets out the circumstances in which an appeal panel may allow an appeal:-

“The panel may only uphold the appeal at the first stage where:

(a)

It finds that the admission of additional children would not breach the infant class size limit; or

(b)

It finds the admission arrangements do not comply with admission law or were not correctly and impartially applied and the child would not have been offered a place if the arrangements had complied or had been correctly and impartially applied; or

(c)

It decides that the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case.”

It is relevantto note that the 2012 version of the Appeals Code replaced earlier codes dating back to 2009 and before. The 2009 version, the material provisions of which are the same as the earlier 2008 code, having set out the statutory basis, dealt with reaching decisions on appeal at chapter 3 and at paragraph 3.1 it made it clear that Panels must follow the 2 stage process for all appeals other than those against decisions made on the grounds of the infant class size prejudice. It dealt with infant class size appeals at paragraph 3.17 and following as follows:-

“3.17

Section 1 of the School Standards and Framework Act 1998 limits the size of an infant class (ie a class in which the majority of children will reach the age of 5, 6 or 7 during the school year) to 30 pupils with a single school teacher (see paragraphs 2.63 – 2.65 of the School Admissions Code). Panels can only uphold appeals if any of the criteria in paragraph 3.19 are met. For appeals with regard to “infant class size prejudice” admission authorities should ensure that information is available to parents on the limited chances of success of such appeal. In all cases parents retain their statutory right of appeal.

3.28

It is not enough for an Admission Authority to show that the published admission number has already been reached. The Panel must consider whether the case that infant class size prejudice would be caused is justified eg admission may have been refused because places had been allocated up to the published admission number, but this does not necessarily mean that admitting another child would breach the infant class size limit. The Admission Authority may need to explain what it would have to do to comply with the infant class size limit if it admitted an additional child eg employ another teacher, move to mixed age teaching, with detrimental consequences to the efficient provision of education or efficient use of resources.

3.29

The panel must also consider whether admission of an additional child would cause future infant class size prejudice e.g. if a school publishes an admission number of 60, admitting 20 children to 3 reception classes, which become 2 classes of 30 children in years 1 and 2. Admission of a 61^st child to reception would lead to one of the year 1 classes exceeding the infant class size limit unless the school takes remedial measures, such as recruiting an additional teacher. Therefore there would be infant class size prejudice.”

On its face therefore the 2009 version, in contrast with the 2012 Appeals Code makes specific reference to the requirement that the Panel must also consider whether the admission of an additional child would cause future infant class size prejudice.

What is said on behalf of the claimant is that given that the claimant applied for her son to be admitted to an infant class with fewer than 30 pupils there would have been no breach of the infant class size limit if he had been admitted and neither the school nor the Admission Authority would have been compelled by section 1(4) of SSFA 1998 to take measures to avoid prejudicing the provision of efficient education or the efficient use of resources. Thus an infant class size appeal (to be dealt with under section 4 of the 2012 Code) was simply not triggered and, as a matter of construction, any possible future breach of the infant class size limit and the steps, if any, to be taken by the school to avoid that, are to be taken into account by the Panel in balancing the party’s respective cases under section 3 of the Appeals Code. The alternative conclusion contended for by the defendant and the Secretary of State it is said would require express words either in the underlying statutory framework or in the Code.

In support of this argument, the claimant places great weight on the now repealed provisions in the Education Act 1996 governing infant class sizes and in particular section 411(10) to which I have already referred and to the reference at paragraph 3.29 in the 2009 version of the Appeals Code i.e. to the requirement that the Panel must consider whether the admission of an additional child would cause future infant class size prejudice. The fact that in the legislation Parliament and in the 2009 version of the Appeals Code the Secretary of State went out of their way to make provision specifically for future infant class size prejudice implies it is said that the statutory framework would not otherwise have catered for future infant class size prejudice. Any suggestion on the part of the defendant or the Secretary of State that there was no intention in the drafting of the 2012 version of the Appeals Code that panels shouldn’t have to consider future prejudice when determining appeals was neither here nor there if that is the effect of the drafting when the document is read as a whole and in accordance with its ordinary and natural meaning.

It is also said that the duty on the local authority to take steps to comply with the infant class size limit (section 1(6) SSFA 1998) is on the face of it a duty to ensure that a particular class does not breach the infant class size limit at the present moment. Thus great weight is placed on the use of the present tense in section 1 which again it is said was the deliberate choice of the draftsman so that where the draftsman wanted to distinguish between the present and the future he was capable of making the distinction explicit and this too militates against the defendant and Secretary of State’s contended for interpretation of the 2012 Appeals Code.

Moreover, as the 2009 version of the Appeals Code amply demonstrated, it would have been entirely possible for the Secretary of State to have issued a code which restricted the grounds on which a parent could bring an appeal in the event of a breach of the infant class size limit arising in later years.

It was also submitted on behalf of the claimant that the use of the word “would” in section 4 did not indicate that a panel was required to consider what was likely to happen in school years other than the one of admission. It could not it was said as a matter of grammar refer both to an immediate certain result and to a future possible result. If that had been the intention it was to be expected it would have said something along the lines of “would or would in the future be likely to”.

Moreover, it was also submitted that such an approach would not undermine the policy objectives of securing a limit of 30 children in an infant class nor the choice of individual schools to operate smaller reception classes. It would often not be certain that prejudice would in fact arise. Pupils might leave the school. The ordinary test under section 3 would allow the Panel to consider the likelihood or otherwise of a class exceeding 30 at some point in the future. A child would not automatically gain entry. Rather any future breach of the infant class size limit and what might be done to avoid it would be matters to be taken into account with the child’s case being weighed up against the substantial prejudice of any possible breach of the infant class size limit which were just the sorts of issues it was submitted which Panels by their training and experience and advised by their clerk were eminently capable of resolving.

It was also submitted that other sections of the 2012 version of the Appeals Code had in fact been drafted with an eye to the future. By way of example, paragraph 3.10(a) suggested that a Panel at the second stage of the ordinary approach consider “what effect an additional admission would have on the school on the current and following academic year as the years group moves through the school”. The reference to the future impact of the admission of an additional child in section 3 and its absence in section 4 was it was submitted striking and reinforced the argument that the correct approach was to consider a future infant class size appeal under section 3 albeit taking account of and giving appropriate weight to the fact that the infant class size limit might be breached in the future.

The defendant and the Secretary of State for their part suggested that there was plainly no intention on the part of the Secretary of State when producing the 2012 version of the Appeals Code to provide that panels should cease to consider future prejudice when determining infant class size appeals and went on to submit that it was simply not possible to attach to the omission of any reference to “any subsequent primary school year” in the 2012 Appeals Code the significance which the claimant sought to attribute to it because the current statutory scheme adopted a different legislative technique from that adopted in the amended 1996 Act. The 1996 Act, as amended, proceeded by invoking the concept of “qualifying measures”, a concept that had to be defined. The reference to “any subsequent primary school year” was in the definition of “qualifying measures”. The concept of “qualifying measures” was not replicated in SSFA 1998 or in any of the regulations made under it and accordingly the definition of “qualifying measures” found no place in the current scheme and that explained why there was no reference to “any subsequent primary school year” in the 2012 version of the Appeals Code. Moreover it was to be noted that the explanatory note to the Education Act 1996 (Infant Class Size) (Modification) Regulations 1998 (SI 1998 No.1948), which made the relevant amendments to the 1996 Act stated that the purpose of those amendments was to modify the 1996 Act so as to correspond to SSFA 1998, indicating that there was no intention to lay down a different approach in the 1996 Act than that laid down by SSFA 1998. Equally it was said that paragraph 3.29 in the 2009 version of the Appeals Code was merely explanatory of what was meant by infant class size prejudice. Rather than focusing on what was omitted from the 2009 version of the Appeals Code or indeed the earlier legislation what was required was a focus on the actual words used in SSFA 1998 and the 2012 version of the Appeals Code.

The claimant, it is said, had overlooked the fact that by section 1(6) of SSFA 1998 local authorities and governing bodies are required to exercise their functions “with a view to securing” compliance with infant class size limits. If it be contended that section 1(6) requires local authorities and governing bodies to look only at the immediate present and to disregard the future that would be a surprising contention particularly in the context of admission of children who would only join the school several months hence.

It was also said that in the light of the important statutory policy limiting the size of infant classes had Parliament or the Secretary of State intended that fine distinctions be drawn between a breach in the first year the child attended school and a breach that would occur in subsequent academic years they could have been expected to say so explicitly. It would be inconsistent in the context to construe the Appeals Code as requiring panels to look only at a breach that was likely to occur during the first academic year that the child spent at the school and to ignore a likely breach in a subsequent year.

On behalf of the Secretary of State it was also submitted that how admissions authorities deal with cases such as the present sheds light on how Panels should approach appeals. An admission authority was there to look to the future when making its decision typically in April in respect of the following September and as such there could not be any certainty at the time of the actual decision such that it could not be said that it was inevitable that every child who was offered a place would take it up. What was required therefore was a judgment and that was what was meant by the use of the word “would” in section 86(3)(a). Moreover the concept of prejudice to the provision of efficient education and prejudice to the efficient use of resources were inherently broad and there was no express temporal limitation placed in the consideration.

When considering the role of the Panel, the trigger is the type of decision made by the admission authority. This it is said is significant because if the Secretary of State’s submission is right that admission authorities can take decisions on the basis that prejudice will arise in subsequent academic years, section 4 will be triggered and that is a strong indication that the Panel is also to be concerned under section 4 about prejudice that arises in subsequent academic years. Moreover as with section 86(3) of SSFA 1998 the use of the word “would” it is submitted indicates that an appeal panel is required to exercise a judgment as to what is likely to happen in the future and again there is no temporal limitation on when the breach of the infant class size limit referred to might arise and, had such a limitation been intended, the Appeals Code would have stated it expressly. Thus it is said the approach to be adopted by a Panel under section 4 of the Appeals Code faithfully reflects the approach to be adopted by the admissions authority under section 86(3) and (4) of SSFA 1998. Just as any prejudice to the provision of efficient education or the efficient use of resources is relevant to an admissions authority’s exercised judgment under section 86(3)(a) of SSFA 1998, regardless of whether it arises in the child’s first academic year at the school or subsequently, so a breach of the infant class size limit in a year subsequent to the first academic year that the child spends at the relevant primary school is relevant to a panel’s consideration under section 4 of the Appeals Code which itself is consistent with the clear statutory policy laid down by section 1 of SSFA 1998.

To my mind, the answer lies in a close reading of the wording in section 3 and 4 of the Appeals Code and the context in which it sits rather than comparing the text of the 2012 Appeals Code with earlier versions or indeed now repealed plainly transitional provisions drafted using a very different technique. In this regard, that infant class sizes should comprise no more than 30 children in reception, years 1 and 2 is plainly an important statutory policy. When admission authorities consider the admission of a child to reception and years 1 and 2 any prejudice arising out of a breach is to be taken into account and Panels are enjoined to apply a strict test when considering appeals against a decision by an admissions authority to refuse to admit a child on the ground that to do so would give rise to prejudice arising out a breach of the infant class size limit. It would to my mind be wholly inconsistent with the context to construe the 2012 Appeal Code as requiring panels when considering whether they would be in breach of the limit on infant class size to look only at a breach that is likely to occur during the first academic year that the child spends at the school. Nor is such a construction necessary, accepting as I do the force of the submissions made on behalf of the defendant and more particularly the Secretary of State to which I have referred above. The ordinary and natural meaning of the words used in the 2012 Appeals Code to my mind supports the interpretation put on them by the defendant and the Secretary of State. Thus the words used plainly envisaged that a Panel is required to exercise a judgement as to what is to happen in the future and does not place any temporal limitation on when the breach of the infant class size limit might arise. That interpretation is also more coherent and better reflects the statutory policy that infant class size limits take priority over parental preference and does not, by contrast with the interpretation contended for by the claimant, require additional words to be read into the Appeals Code.

In the light of my conclusions on interpretation there is no need for me to go on to consider the various submissions made on the defendant’s behalf as to why the court should exercise its discretion not to grant the remedies sought. Had it been necessary for me to do so however, I would without hesitation have concluded that the matters relied upon by the defendant were not such as to persuade me that the court should exercise its discretion not to grant the remedies sought by the claimant.

So far as delay is concerned, as it seems to me, the points raised are without merit in circumstances where permission was granted and in the absence of any real prejudice. So far as the submission that a fresh consideration would almost certainly result in the appeal being upheld is concerned to my mind there is no basis for that contention in the light of the test outlined by Keene LJ in Smith v NE Derbyshire [2006] EWCH Civ 1291. Finally, on this aspect as for disruption, the only disruption contended for would have been the holding of a fresh appeal at, on the defendant’s own evidence, very modest cost.

It follows in my judgment that the panel correctly treated the appeal as an infant class size appeal and it properly directed itself that, when considering whether the admission of the claimant’s son to T primary school would breach the infant class size limit, it was to look not just at the academic year when the claimant’s son would first enter T primary school but also the subsequent two academic years.

It follows in my judgment that this claim should be dismissed.

I trust that the parties will be able to agree the terms of an order that reflects the substance of this judgement.

Finally I would like to take this opportunity to express my gratitude to the advocates for all 3 parties for the way in which they have conducted the trial and for their very helpful skeleton arguments.