BC, R (on the application of) v North Yorkshire County Council & Anor

HIS HONOUR JUDGE GOSS: The claimant in this case, BC, is 4 years of age, having been born on 23rd August 2009. He will therefore be 5 in nine days' time.

He brings these proceedings for judicial review by his litigation friend and father, GC. The claim is for permission to challenge the decision of the defendant, North Yorkshire County Council, as local education authority in its role as admission authority, dated 15th January 2014, to admit BC to reception class at a local primary school in the current academic year 2014/15 but only on the basis that he is admitted outside his chronological age group. He will be 5 at the commencement of the school year on 1st September 2014. At his parents' request he will be placed in reception. However, this is a consequence of the defendant applying its policy for placement of pupils outside their chronological age group.

The remedies sought in these proceedings are, firstly, a declaration that the academic year is the correct definition of the period of time to be applied in admissions procedures and its constituent parts to include but not limited to the relevant age group and chronological age group and, secondly, a direction that the defendant adopts this definition when considering school admissions applications to include but not limited to BC's application, who should not be considered as out of his chronological age group when starting in the reception class in primary school in the academic year 2014/15.

On 16th June 2014 Stewart J. ordered the case to be listed as a rolled up hearing on notice to the defendant and the Secretary of State for Education as an interested party and, if permission to apply was granted at that hearing, the court was to proceed immediately to determine the substantive claim.

This is the rolled up hearing that was ordered. In addition to the defendant the Secretary of State for Education is represented as an interested party. Skeleton arguments have been filed by and on behalf of the claimant, the defendant and interested party, in addition to the summary grounds of defence within the acknowledgements of service of the defendant and interested party.

I first had to determine whether permission to apply for judicial review should be granted. For such permission to be granted a court must consider that it is reasonably arguable that the claimant is entitled to the relief sought. To be so entitled, it must be reasonably arguable that there are grounds for concluding that the defendant erred in law and/or that that there was a legitimate expectation that the academic year would be used to define the chronological age group for the purposes of the placement of pupils outside their chronological age group guidance for schools (which I shall refer to as "the placement guidelines") and/or the defendant's decision was unreasonable.

The first observation to be made is that the claimant is to be placed in reception year, the year group of his choosing. Nevertheless, it is contended that the claimant has already suffered injustice by the defendant's failure to adopt what it is submitted is the correct chronological timetable for an admission round, namely the academic year running from 1st August to 31st July. The consequence of being categorised as outside his chronological age group makes the claimant subject to the defendant's placement guidelines; under the defendant's policy it is stated that it will only be in exceptional circumstances that a pupil moves out of her or his chronological age group. It should, however, be noted that the claimant has been reassured in this respect by a letter from the defendant dated 14th March 2014 to his father and Litigation Friend, in which it is stated in paragraph 3:

The claimant's case is that the chronological age to be adopted for placement purposes should be the academic year from 1st August to 31st July and not the school year, which runs from the first day of term after the 31st July, which is always on or around 1st September to 31st August. If the academic year was adopted the claimant would be aged 4 at its commencement this year and there would be no need to apply for placement guidance as he would not be out of his chronological age group.

The interested party disputes that there has been a challengeable decision by the defendant or that the claimant's anticipated future assumed consequences are challengeable. In short, it is submitted that unless and until a future decision is made to place him within what is said by the defendant and the interested party to be his chronological age group, there is no challengeable decision as he has been placed in reception.

True it is that there is an element of discretion in relation to such future decisions. However, the fundamental point remains as to what his appropriate chronological age group is because of the consequences that flow therefrom. Accordingly, it is arguable that the defendant's decision is challengeable and it is to be noted that the defendant does not submit to the contrary. In all the circumstances, therefore, I granted the claimant at the outset of this hearing permission to bring his claim for judicial review.

The claimant basis his claim upon the definition "academic year" contained within section 88M(5) of the School Standards and Framework Act 1998, to which I shall refer as "SSFA 1998", which deals with the co-ordination of admission arrangements for local authorities for all admission authorities in its area. It is the only provision within that Act which adopts the term "academic year". Its applicability relates solely to that section. For the term that is otherwise used in relation to admission arrangements in many instances in the SSFA 1998 is "the school year".

Moreover, the SSFA 1998 provides at section 142(8) that it shall be construed as one with the Education Act 1996. Section 579 of the Education Act 1996 defines the school year as:

It is right to observe that, unhappily, the School Admissions (Admission Arrangements Co-ordination of Admission Arrangements) (England) Regulations 2012, to which I shall refer as the "2012 Regulations", refer repeatedly to the term "academic year". By way of example regulation 26(1) provides:

However, to interpret those regulations as meaning the year from 1st August to 31st July would be inconsistent with the governing primary legislation. The use of the term "academic year" in the regulations was incorrectly adopted by the Regulations, as explained in the witness statement of Leslie Jones on behalf of the Secretary of State. It is proposed that the Regulations will be amended to ensure consistency with primary legislation. Leslie Jones' witness statement also informs that no admissions authority or school in England uses the construction of the chronological age group for a reception class starting in a particular year that should include all children who turn 5 years of age in the period between 1st August in that year and 31st July in the following year; in other words, none adopts the reference to "academic year" as bearing the definition set out in section 88M(5) of the SSFA 1998.

For the claimant's case to succeed would require the court to conclude that the reference to "academic year" in the secondary legislation should override and/or bear a meaning or interpretation that contradicts the primary legislation, namely section 579 of the Education Act 1996 and the provisions of the SSFA 1998 other than the single and unique reference to "academic year" in and for the purposes of section 88M(5). Further, section 88M(5) provides that regulations may require a local authority in England to formulate for any academic year in relation to which prescribed conditions are satisfied the qualifying scheme for co-ordinating the arrangements for the admission of pupils to maintain schools in their area:

I read section 88M as being confined solely to the arrangements that are to be made in relation to the co-ordination of the arrangements for the admission of pupils to maintained schools within an area and the application of the phrase "academic year" within that section is confined to that section and is not of general application.

Primacy of the enabling legislation makes the claimant's argument unsustainable. The regulations have to be interpreted as being in accordance with and not contradictory to the primary legislation. That is well established by administrative law: subordinate legislation must not conflict with the enabling statute - see R v Secretary of State for the Social Security ex parte Joint Council for the Welfare of Immigrants, R v Secretary of State for Social Security ex parte B [1996] 4 All ER 385.

The defendant had no statutory obligation to adopt the academic year defined in section 88M(5), in other words from 1st August to 31st July, as the basis for its time frame for offering places in schools within its authority. Accordingly, the claimant can have had no reasonable expectation that it would. Moreover, there is nothing within the school's Admission Code 2012 which requires the defendant to use the academic year of 1st August to 31st July as the normal or chronological age group. It is both lawful and reasonable to use the period September to August as the normal age group. That age group is being and has been used consistently by the defendant and all other education authorities and by the Department for Education. It is therefore entirely normal and typical. Moreover the guidance for local authorities contained in the July 2013 Advice indicates the normal position as relating to a child according to the September to August period. Accordingly, not only is there no basis for concluding that there was any unlawfulness in the defendant's school admission arrangements, there was also no irrationality.

The admission arrangements admit of discretion in relation to the placing of children in accordance with the primary legislation. Furthermore, the defendant has provided reassurance in relation to this claimant's position, who also has rights to challenge any future decisions by the defendant through the usual channels.

If the claimant's assertion was correct and accepted by the defendant, its position would be entirely inconsistent with other admission authorities and would be a potential catalyst for litigation by children and their parents transferring to or from the defendant as an admission authority. In short, the defendant has not acted unlawfully, irrationally or unreasonably and the claimant is not entitled to the relief claimed. For all those reasons this application is refused.

HIS HONOUR JUDGE GOSS: No applications?

MR WILKINSON: No my Lord.

MISS KITZING: No.

HIS HONOUR JUDGE GOSS: Thank you very much for your approach to this case and, if I may say so, the commendable way that you have conducted these proceedings in terms of the reasonableness and the rationality of the way that you have advanced the argument. You realise you have uncovered within the Department of Education a major problem. I have obviously just applied the law. You will have noticed that I was careful in my judgment not to rely on the future anticipated change of the law as a ground for my decision. I have also emphasised the reassurance that you received in that letter so far as your son is concerned. Obviously, that is, if I may say so, a very helpful weapon to have in your armoury.

THE CLAIMANT: My Lord, I much appreciate the time of the court.

HIS HONOUR JUDGE GOSS: Not at all. May I hand back the letter you provided. I am also very grateful to you both for your assistance, albeit belated.

MR WILKINSON: Again apologies on my behalf. I am grateful for the court's indulgence in that respect.

HIS HONOUR JUDGE GOSS: Leave to appeal is refused.