| SPOTLIGHT |
The Court of Appeal has rejected a council’s appeal against a decision by the Secretary of State for Education (SSE) 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 The Secretary of State for Education [2024] EWCA Civ 951, the London Borough of Islington sought permission to appeal against an order of Mr Justice Choudhury, in which he dismissed the council’s claim for judicial review of a decision by the SSE not to exercise the “exceptional power” to revoke an Academy Order in respect of a primary school in Islington
Lady Justice Andrews found no merit in either of the proposed grounds of appeal, concluding that “on the contrary, the overriding objective is best served by putting an end to what the Judge aptly described as the deleterious effect on the School of continuing uncertainty.”
Pooles Park Primary School is a mainstream primary school, maintained by the council.
Following an inspection on 9-10 November 2022, the school was rated as "Inadequate" by Ofsted. That rating imposed a duty on the Secretary of State for Education to make an academy order.
Andrews LJ noted: “A school which is the subject of an Academy Order ceases to be maintained by the relevant local education authority on the date when it opens as an Academy. As soon as that happens, the local authority loses its autonomous power to close it.”
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.
Islington 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.
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 a 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.”
The SSE declined to revoke the order, finding that the school was viable as an academy.
In its judicial review claim, the council contended that the refusal decision, made by Baroness Barran on 14 November 2023, was “irrational and based upon inadequate inquiry”.
It contended that the decision was unlawful on the following five grounds:
Mr Justice Choudhury (the Judge) dismissed the judicial review on all five grounds, concluding 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.”
On appeal, the council submitted that:
Andrews LJ observed: “Expressed in that manner, the grounds appear to be nothing more than disagreement with the Judge’s decision. Indeed Mr Bates, [for the SSE], submitted that Ground 1 was, in reality, a challenge to the substantive conclusion reached on the first ground of judicial review, which was taken after a careful analysis of the contemporaneous documents that informed the Minister’s decision.”
Counsel for the local authority clarified that the council was contending that Mr Justice Choudhury’s conclusion on the rationality challenge was wrong because he applied the wrong legal test.
It was submitted that the judge erred in his application of R (National Association of Health Stores & Anr) v Department of Health [2005] EWCA Civ 154, both in respect of the test to be applied in determining what material had to be put before the Minister, and in respect of the requirement that relevant matters be considered by the decision maker personally.
Andrews LJ said: “In my judgment there is no substance in any of these criticisms. The Judge did not misapply the law. He considered National Association of Health Stores in some detail at [71] and posed the correct question at [72]. This was a rationality challenge. It was not a challenge on the basis that the Minister did not make the decision for herself, as she expressly said she did, but relied instead on an assessment made by her civil servants.”
She added: “Logically, as was pointed out to Ms Clement [for the local authority] in the course of argument, if the information which the Council says demonstrated that the School could not be made financially viable was not before the decision-taker, the decision could not possibly be described as irrational in the classic Wednesbury sense that no reasonable decision-taker could have reached it on the information before them.
“It could only be irrational if the decision-taker did not have sufficient information on which to make an informed assessment of viability, or left something vital out of account. The Judge was right to identify that the essential complaint is about the decision being taken in the absence of factual information which the Council contended was legally relevant.”
Concluding on ground 1, Andrews LJ said: “The Submission to the Minister drew specific attention to the Council’s evidence on the viability of the School without Academy status, to the declining numbers of pupils on the roll, and the projected budget deficit. It was entirely to be expected that the numbers on the roll would have declined further in the current intake, not least because the School had been rated “inadequate” and its future was uncertain.
“The Minister did not need to know the precise numbers of the 2023 intake, as a general decline in numbers was both predicted and predictable. In any event the current numbers on the roll told the Minister nothing about whether the Trust could attract more pupils in the medium to long term in consequence of its plans to turn the School around. For all those reasons Ground 1 has no real prospect of success.”
On ground 2, counsel for the local authority contended that there was no real dispute of fact about what inquiries were or were not made; in concluding that no further inquiries were required in order to determine whether the school would be viable as an academy, the judge went wrong in law.
On this, Andrews LJ said: “This is simply a different way of making the same point as was at the heart of Ground 1. It does not improve in quality by being recharacterized as a Tameside challenge. The missing information which the Council claimed to be essential was not essential. There is no realistic prospect of persuading this Court that the SSE failed to make further enquiries which she was legally required to make before taking the decision.”
She continued: “In paragraph 54 of the Council’s skeleton argument it is contended that there is some other compelling reason for this appeal to be heard. It is suggested that the outcome of the appeal will impact on the place planning for all primary schools in Islington and that it is a “point of significant public interest whether the Secretary of State can undermine and, in effect, ride roughshod over a local authority’s SEN strategy and allocation of its high needs funding, by approaching decision-making on forced academisation without regard to how local authorities exercise those statutory functions.”
She noted that counsel for the local authority “wisely” did not seek to elaborate on those submissions orally.
She added: “When he refused permission to appeal, Choudhury J said of this contention that it appeared to amount to an attempt to reargue Ground 4 of the original claim, which was rejected. He observed that its prospects were not improved by putting it in terms of the SSE “riding roughshod” over the Council’s SEN strategy. He said that “these points do not give rise to any compelling reason to allow an appeal with no real prospect of success to proceed. Indeed to take that course would… introduce further delay and would be contrary to the interests of the School’s pupils, parents and staff.””
Concluding the case, Lady Justice Andrews said: “I agree wholeheartedly with those observations. There is no merit in either of the proposed grounds of appeal, and this challenge turns very much on its own facts. It raises no issue of wider practice or principle. There is no compelling reason to entertain an appeal in those circumstances. On the contrary, the overriding objective is best served by putting an end to what the Judge aptly described as the deleterious effect on the School of continuing uncertainty.”
Lady Justice Macur agreed.
Lottie Winson
