Academy Trust for Hockerhill Angloeuropean College, R (on the application of) v The Office of the Schools Adjudicator

J U D G M E N T

MR JUSTICE COLLINS: 1. The claimant in this case is an educational trust which runs what is known as Hockerhill Angloeuropean College. The college is a co-educational day and boarding school for students aged 11 to 18. It has about 850 students and approximately a third of those are borders from Europe and beyond who possess a European passport. It is undoubtedly a thoroughly excellent school. It was regarded by the then Secretary of State as one of the best state schools in the country. It has received an award and is in the top 10 schools for GCSE results. It has some 200 staff, just under half of whom are bilingual. It has pioneered language school and university partnerships by joining with the University of Nottingham in training future language teachers and it has close working cultural links with a network of partner schools throughout Europe. It has been inspected by Ofsted and on each inspection commencing in 2007 has been rated as outstanding.

2. Since 2007 it has offered places for day students and for boarding students and the boarding students have been divided into weekly, termly and daily boarders and the issue in this claim relates to those who have been described as daily boarders. That means, of course, that they do not generally stay overnight. Arrangements can be made in the case of a particular need during the week or a weekend for a day boarder to stay overnight if, but only if, there is a bed available. That happens on a number of occasions. But, as I say, generally speaking, as their description indicates, they do not stay overnight.

3. There are about 80 day boarders. They are provided with accommodation within the boarding houses and are allocated on the basis of boarding need, which applies to all boarders as opposed to day students. The applicants for admission always exceed the places that are available. It is not I think necessary to go into the full detail of the basis upon which those who have applied to be day boarders have acted: suffice it to say that it has been recognised by the Secretary of State that what is provided by the school is to be encouraged and there has been no objection to the provision that has been made for those described as day boarders.

4. What I have said is subject only to one matter which resulted from a letter written by the Department to the Chair of the Governors in July 2014, which was a general concern raised about some of the charging and admission arrangements in state funded boarding schools. It related to the distinction that was drawn between boarders who had accommodation provided by the school and day pupils and the point being made was that schools could charge the full cost of board and lodging and for extended day services outside day hours provided it was not education provided as part of the national curriculum, but schools could not make attendance at or payment of charges for extended day care compulsory because that would be a breach of the relevant Act. It was necessary therefore to be sure that boarders were provided with more than what was routinely in many schools provided for day pupils.

5. The college's response essentially was that what was provided for their day boarders did indeed extend far beyond what was provided for day pupils and having regard to the basis upon which the bay boarders were chosen, which was based on boarding need, they did fall into a different category from day pupils and should be regarded in a different way.

6. It is not without significance to note that there was a previous decision by an adjudicator back in 2008 which concerned the same arrangements as are now in place and which were said by that adjudicator not to have constituted a breach of the law.

7. It is, I think, unnecessary for me to go into the details of the law. Suffice it to say that sections of the 1998 School Standards and Framework Act have been amended to deal with academies. Academies were set up by the Act of 2010. The relevant part of the 1998 Act relating to admissions to schools is Chapter 1 of Part 3. Section 84 of that Act requires the Secretary of State to issue a Code for school admissions. That section does not directly apply to academies but academies are brought in because there is a contract between the Secretary of State and the academy and that requires the academy to act in accordance with the Code.

8. It is accepted that the contractual situation, married into the provisions of the 1998 Act, means that this academy has to comply with the Code. That means that the provisions of section 88H which enable an objection to be made to a particular school's admission arrangements are to be put to the school's adjudicator. This is what happened. The Hertfordshire County Council raised an objection, said to be not in any way a hostile objection, because there was concern that the Code as amended (and the amendment is the crucial point in this case) meant that the day boarders were not in accordance with the Code.

9. The reason for that stems from paragraph 1.40 of the Code. Incidentally, the reason why academies are not included in section 84 of the Act is because the contractual arrangements with the Secretary of State can in individual cases mean that a particular provision of the Code is excluded or varied. That is not material in the circumstances of this case but it explains the statutory scheme which effectively incorporates academies into the adjudicator jurisdiction through the contractual arrangements and the way that marries in with the Act. Paragraph 1.40, under the heading "Maintained boarding schools", provides as follows:

"Maintained boarding schools can set separate admission numbers for day places and boarding places."

There is then a footnote which states:

"34. Boarding places are places for pupils who are provided with overnight board and lodging at the school. Day places are places for pupils who attend school on a daily basis, including pupils who participate in optional school activities outside school hours (for example breakfast club, after-school clubs, music lessons, tea and supervised homework sessions)."

10. Footnote 34 is what was inserted following an amendment to the Code and it is that amendment which has led to the objection by the County Council. The only basis upon which the objection was made and upon which the adjudicator considered it was that day boarders did not come within footnote 34 because they did not stay overnight.

11. Mr Wolfe has submitted, and clearly correctly to this extent, that the Code contains mandatory provisions but also includes guidance and where provisions are mandatory the words ‘must’ or ‘must not’ are used and indeed we see that in 1.40 because it goes on, for example, to require that interviews for boarding must only consider whether a child presents a serious health and safety hazard to other boarders or whether they would be able to cope with and benefit from a boarding environment. It goes on:

"To help with this assessment, they may also use a supplementary information form, and information provided by the previous school and by the child’s home local authority (on safeguarding issues). These processes, and the timeline for them, must be clearly set out in the school’s admission arrangements."

1.41 then provides other requirements, with "must" being in heavy type.

12. The basis of the argument put forward by Mr Wolfe is that the first sentence in 1.40, namely "maintained boarding schools can set separate admission numbers for day places and boarding places", is not mandatory and therefore the footnote must be regarded equally as not being mandatory because the footnote is attached to that sentence.

13. I am afraid I take the view that that argument simply cannot succeed because what footnote 34 is doing, and it is clear indeed from the consultation that was put out in relation to the proposed amendment, was simply to clarify the meaning of boarder and day pupil.

14. Mr Wolfe submits that the use of the word ‘overnight’ indicates that it would have been accepted that boarder lodging on its own could extend to border lodging during the day.

15. That may well be so; indeed that is consistent with the decision reached by the adjudicator back in 2008, but there can be no doubt that what was intended and provided by the footnote was a definition of what was to be covered by day places and by boarding places. It was done by means of a footnote; it could equally, no doubt, have been done by a separate definition provision, but the effect is the same and the distinction between mandatory and guidance is simply one which cannot apply to that situation. The decision of the adjudicator was that this indeed was the definition which had to be applied and that therefore the day boarders did not qualify as boarders within the meaning of the Code.

16. That, as it seems to me, was an inevitable decision and one which was clearly lawful.

17. I indicated to Mr Wolfe that I had very considerable sympathy with his client's case and I certainly would have liked to have found in his favour if I could because there is no question that the claimant is providing a proper service, the basis upon which it takes in its day borders is an entirely proper one based upon the qualifications for boarding generally and it provides a service for pupils, it being recognised by the Secretary of State that what is being done is desirable. If they are to be treated as day pupils, then there are real financial difficulties in the school's path because if they are day pupils there cannot be compulsory payments made for the element which has been regarded as boarding for the purpose of day boarders and it is clear that such payment is not only desirable in the school's interest because of the school's finances but is appropriate in the circumstances under which they choose their day boarders. I will call them such to identify the category of pupils that are covered in this establishment.

18. It seems to me to be clear that there is a gap in the Code which does not deal with those who have been regarded as day boarders and who receive facilities which go beyond those which would be provided for day pupils by any establishment and go beyond in a way which is based upon the needs which would be the equivalent needs of boarders save only that they would not need overnight accommodation as opposed to the other factors which go towards boarders' needs.

19. It seems to me in those circumstances that the Secretary of State ought to consider carefully whether an amendment is now needed to the Code in order to cover the situation that arises in this case because it has been recognised that what the claimants are providing and the way in which they are providing it is desirable and is helpful to those for whom it is provided. I have not gone into the details of the basis upon which day boarders are chosen because it is not necessary for the purposes of this judgment to do so but I simply reflect the view which is, as I understand it a view which is accepted by the Secretary of State, that what is provided is thoroughly desirable.

20. But as the law is, and as the footnote provides, I am afraid I see no way round because, as I say, this is clearly a definition of what is boarding and what is day and in those circumstances, with considerable regret, I must dismiss this claim.

MS WARD: My Lord, I am grateful. There is an application for my client's costs and a schedule has been provided.

MR JUSTICE COLLINS: Have you served the schedule?

MS WARD: It was served in the adjournment, so it has not been served long, I accept that. It is in a typically modest amount for a government department, so that may ameliorate it to some extent.

MR JUSTICE COLLINS: How modest is modest?

MS WARD: My Lord, taking into account a deduction because we were not here all day, £5,261.50.

MR JUSTICE COLLINS: Mr Wolfe?

MR WOLFE: I have got a copy. My Lord, my starting submission is that in light of my Lord's general approach to this and the things you have said, there should be no order for costs at all. It is an unusual case to have summary assessment against me, my Lord, is my starting point.

MR JUSTICE COLLINS: The difficulty is, I have expressed considerable sympathy, Mr Wolfe, and I would have liked undoubtedly to find in your favour if I could but unfortunately I do not think this claim was ever arguable.

MR WOLFE: My Lord, we had permission to argue it, which is indicative.

MR JUSTICE COLLINS: I know you did, I am not sure I would have granted permission but I have made clear what I believe but anyway there we are.

MR WOLFE: So my starting point is that there should be no order for costs in the light of the situation which my Lord describes. It is an unusual case to have summary assessment because normally you do not for a judicial review but we recognise pragmatically in the light of the amounts involved that a detailed assessment would be itself a disproportionate exercise.

MR JUSTICE COLLINS: Let me put it this way, if a full order for costs is appropriate, I think on the face of it you might have difficulty in challenging the amount.

MR WOLFE: My Lord, we would say that it is unusual for any assessment to survive unscathed and we would invite my Lord to summarily assess if you are minded to do so.

MR JUSTICE COLLINS: I had better have a look at the schedule if you are asking me possibly to summarily assess.

MS WARD: My Lord, can I hand up the version that has the deductions scribbled in my handwriting.

MR JUSTICE COLLINS: This was expected to last a day, was it?

MS WARD: It was listed for a day, my Lord, so both my solicitor's and my time is an hourly rate.

MR WOLFE: Can I just clarify that, the time estimate request was at the behest of the Secretary of State and the adjudicator, the judge giving permission said 2 hours and we were happy with that, so it should not be suggested that we ever thought this was more than a half-day case. But, my Lord, can I just say we would suggest summary assessment in the sum of £4,000. It is never an exact science but if you are against me on the principle, we would suggest an order in the sum of £4,000. My Lord, our simple point would be this: at this level of lack of detail it is impossible to make detailed submissions on whether a certain amount of time was too long or whatever, that is why all I can do is make the broad observation, and the reduction that we are proposing is less than a third, so that is that basis on which I put that figure forward, I am not in a position to go through it line by line and say that was too long and this is too long.

MR JUSTICE COLLINS: I understand that but I do recognise that in a case such as this to put it to detailed assessment would probably be an unnecessary extra cost on both sides. I think, Mr Wolfe, I am afraid that they are entitled to costs. I think, however sympathetic I am to you, it would be improper for me not to recognise that if you lose, generally speaking, you have to pay the costs. I am prepared, though, in the circumstances of this case, to grant you a reduction, although not a very large one. What I propose to do is to say that there shall be costs in the sum of £4,250.

MS WARD: Thank you, my Lord.

MR JUSTICE COLLINS: That is, you will appreciate, sitting under a whatever sort of tree one should sit under rather than adopting a truly judicial approach but that is what one has to do sometimes when dealing with costs. Thank you. I hope that perhaps this will be the end of it and it will work out properly.