| SPOTLIGHT |
The London Borough of Islington has lost a judicial review claim against a decision by the Secretary of State for Education to refuse to revoke an Academy Order for a school the council considered should close.
In London Borough of Islington, R (On the Application Of) v Secretary of State for Education [2024] EWHC 1798 (Admin), Mr Justice Choudhury dismissed the claim on all five grounds, stating that the Minister's decision “cannot be said to be irrational either in the Wednesbury sense or on the basis that a legally relevant matter was not taken into account.”
Outlining the background to the case, the judge noted that Pooles Park Primary School is a mainstream primary school, maintained by the council, the London Borough of Islington.
Following an inspection on 9-10 November 2022, the school was rated as "Inadequate" by Ofsted. That rating imposed a duty on the defendant, the Secretary of State for Education (SSE), to make an Academy Order.
The judge noted: “The effect of making an Academy Order is that the school would become an Academy under the control of an Academy Trust and would cease to be maintained by the Council.
“The SSE has the power to revoke an Academy Order under s.5D of the 2010 Act, a power which is, under the SSE's policy, to be exercised only in exceptional circumstances. One such circumstance is that ‘the school would not be viable as an academy’.”
The council considered the school to be “unviable” due to falling pupil numbers in the borough, the surplus of school places, projected financial deficits and the Ofsted rating making it the only school in the borough rated as "Inadequate" at the time.
The council argued that the school should close, but that it would have no power to effect a closure if the school became an Academy. Therefore, it invited the SSE to revoke the Academy Order.
The SSE declined to revoke the order, finding that the school was viable as an academy.
In the judicial review claim, the council contended that the refusal decision, made by Baroness Barran (the Minister) on 14 November 2023, was “irrational and based upon inadequate inquiry”.
In summary, the decision stated:
“Despite the surplus places in the school and the local area, the Minister is "content" that the school has "a viable long-term future" with a strong academy sponsor. Having considered all the evidence, the Minister considered that the school "would be viable as an academy". Under the Trust, the School has the "potential to not only improve standards for pupils but also to increase pupil numbers and to expand the special educational provision available in the local area". The Minister's view is that it is in the best interests of pupils that the school remains open and is "given the opportunity" to improve.”
The London Borough of Islington contended that the decision was unlawful on the following five grounds:
On ground 1, counsel for Islington submitted that the conclusion that the school was viable was both irrational in the Wednesbury sense (ie. was so unreasonable that no reasonable authority could ever have reached it) and “demonstrably flawed” in that there was no evidence to support an important step in the reasoning, the judge noted.
The council argued there was no basis for the view that there was "potential […] to increase pupil numbers", given the falling pupil numbers across London and the rates of vacancies in Islington schools.
Counsel for the SSE submitted that the issue of future viability was one of “finely balanced judgment” in respect of which there was a “wide margin of discretion”, and that the court should be slow to interfere, particularly given the legislative default position that there be an Academy Order for a school rated 'Inadequate' and guidance that this should only be revoked in exceptional circumstances.
It was further submitted that “the SSE was entitled to afford significant weight to the Trust's views and assessments, its resources, the fact that its proposal would address a need that would not otherwise be met and the innovative nature of the proposal”, said the judge.
Before the decision whether to revoke the Academy Order had been made, on 3 November 2023, the Regional Schools Commissioner (RD) made a submission on the Academy Order revocation request.
The submission set out the background, including the council's preferred option of closure and the selection of the Trust as preferred sponsor. It went on to highlight the key concerns raised by the council.
Each of the concerns were addressed in the submission. In conclusion, the recommendation was as follows:
"We recommend that you, Baroness Barran, refuse the request to revoke the academy order issued to Pooles Park because we have identified a strong academy sponsor who is willing to support the school, and following our policy consider the school to be viable as an academy. We have considered the concerns raised by Islington and believe these can be addressed through this strong sponsor.
“Keeping the school open will allow a strong local sponsor to support the school and provide additional places for students with SEND who are unable to access a place elsewhere, it will also ensure the school remains opens as a resource for the local community, including the community garden on the site.”
Discussing ground 1, the judge noted that the question was whether the minister, in determining whether to exercise the discretion to revoke the Academy Order, had all the information that it was legally relevant for her to know in order to make the decision.
He said: “In my judgment, the Submission presented the Minister with all the information that it was legally relevant for her to know before making the Decision. The Minister was made aware of, amongst other matters, the falling NOR [number on roll], the surplus of places, the increasing demand for SEN places, the Trust's proposal which was based around additional SEN provision and shared resources, the wider local interest in maintaining the School, and the Council's concerns, including the issues with Hungerford. The Council's principal contention is that the Minister ought to have had the Modelling document and ought to have had pointed out to her that it was flawed in various respects.”
On 20 June 2023, Dr Barratt, CEO of the Bridge Multi-Academy Trust, sent the project lead (PL) a financial assessment that modelled forecasting scenarios (the Modelling). This set out a proposal as to how the school would operate with both current projected mainstream pupil numbers and lower numbers with increased SEN intake.
The council was not aware of the modelling document until late in the proceedings, the judge noted.
The judge said: “Some of the contended flaws in the Modelling were in fact based on understandable but incorrect assumptions on the part of the Council about the nature of the proposed model and the level of dependence on funding from the Council.”
He added: “There is also a disagreement as to the level of potential demand for SEN places in respect of which I have found in favour of the SSE. Once these concerns are put to one side, then the Council's main criticism is that the Minister ought to have been provided with the detailed figures in the Modelling. However, the detailed figures in the Modelling, which were indicative projections in any event, were not legally relevant for the Minister to know. The Minister was entitled to rely on the summary provided by her officers, including their conclusion that the School, supported by the solutions proposed by the Trust, was viable as an academy.”
Dismissing ground 1, the judge concluded: “In short, all of the Council's concerns about viability were appropriately summarised and addressed. The Modelling contained a level of detail that it was not necessary for the Minister to know, and it was not unreasonable in the context of the finely balanced judgments that had to be made, to attach considerable weight to the Trust's assessment on viability. The supposed fundamental errors and incorrect assumptions are, on analysis, not such at all.
“In all the circumstances, the Minister's decision based on those judgments, with which the Council may disagree, cannot be said to be irrational either in the Wednesbury sense or on the basis that a legally relevant matter was not taken into account.
On ground 2, the council submitted that the SSE failed to comply with the Tameside duty to make “adequate inquiry” in respect of the following matters:
The judge noted that most of the issues had already been considered under ground one.
Counsel for Islington submitted that the SSE's response to Ground 2, which was that she was "not required to conduct her own detailed financial or other modelling" in an assessment of viability was to erect a "straw man" in that the SSE was merely required to read the modelling and ask whether the assumptions underpinning that modelling would occur in practice.
The judge said: “It appears to be accepted therefore that the SSE was not required in the circumstances of this case to undertake her own detailed financial modelling. That must be right. Financial modelling would be a matter for a sponsoring trust, although even then, a particular trust may be able, depending on the circumstances, to reach a reasonable view on viability without the need for such modelling. The real criticism, as it seems to me, is that the SSE failed to question the underlying assumptions in the model.
“However, as the discussion above shows, it was the Council that made some understandable but incorrect assumptions about those underlying assumptions. As the RD makes clear in her evidence, contrary to what might be suggested by the phraseology used by the Trust, "It was never assumed that The Bridge would convert a mainstream school, either Hungerford or Pooles Park into a special school…" and that the "intention was always for the Trust to accept pupils with EHC plans, with a possibility of formalising this provision at a later date." The Submission and the Decision were made on that basis.”
Ground 2 was dismissed.
On Ground 3 (‘Irrational refusal to revoke the Academy Order in the circumstances’), Mr Justice Choudhury found that the contention “failed to acknowledge” that one of the purposes of academisation is to address the "Inadequate" Ofsted rating giving rise to the making of the Academy Order in the first place.
He said: “If the Academy Order were to be revoked because the School was the only Inadequate rated school in the Borough, it would defeat the purpose of the Academy Order as it would deprive it of the opportunity to improve. The situation where a school is the only Inadequate rated school in an area cannot be considered an "exceptional circumstance" in itself warranting the revocation of the Academy Order. […] It certainly cannot be said to be irrational, in these circumstances, for the SSE not to take the course of revoking the Academy Order.”
Ground 3 was dismissed.
On ground 4, the council submitted that that the SSE's failure to revoke meant that the council would not be able to ensure that efficient primary education was available to meet the needs of the population or able to promote high standards and the fulfilment of learning potential in Islington. That was because the decision forced the council to close a good or outstanding school instead.
Turning to relevant caselaw, the judge said: “This principle was considered in the school academisation context in R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin). Fraser J (as he then was) held, citing R (One Search Direct Holdings Ltd) v York City Council [2010] EWHC 590 (Admin):
"[149] This case sets out the high hurdle that would have to be cleared by SCC for the Commissioner to have failed this test. It must be shown that by making the order, the Commissioner and the Secretary of State had 'utterly defeated' SCC's target duties to provide education in the local area. The Defendant submitted that it cannot even be sensibly argued this is the case, as the academy order does not prevent education in the area.”
Turning back to the present case, the judge said: “Ms Clement [counsel for Isliington] acknowledges that there is high bar to cross in making good this ground, but submits that the Decision, which has the effect of preventing the closure of the school and requiring the closure of a higher rated school, does "utterly defeat" its statutory objective of securing efficient education and promoting high standards of learning provision.
“Attractively though that submission was made, I am unable to accept it. As in R (Somerset CC), it might be said that the decision not to revoke the Academy Order makes it more difficult for the Council to achieve its statutory objectives. The fact that the School will not close may mean that the Council will have to consider other alternatives, which may or may not involve closure of another school, although such outcome is far from inevitable. However, all of that is a far cry from establishing that the Council's ability to achieve those objectives has been "utterly defeated".
Ground 4 was also dismissed.
Finally, on ground 5, the judge did not accept that there was any “unlawful fettering of discretion” in the case.
He concluded: “The need to rationalise school places because of falling pupil numbers is an issue that is far from unique to the Council. Indeed, the evidence suggests that the problem is widespread and likely to endure and worsen. Whilst that would not necessarily preclude a finding of exceptionality, that background is unlikely to give rise to such a finding on its own.”
Mr Justice Choudhury continued: “As to the alleged misdirection, I have already considered this above under Ground 1. There was no misdirection. It is clear from the evidence that the Minister took account of a wide range of factors as well as viability in reaching the Decision, including the level of surplus places in the area, the impact on other schools, the level of deprivation in the area and the use of the community garden on site as a local resource.
“The focus may have been principally on viability, but that was because that was the ground on which the Council sought revocation and it was an expressly listed "exceptional circumstance" in the SCC Guidance.”
The judge dismissed the judicial review on all five grounds.
Lottie Winson
