Khundakji & Anor, R(on the application of) v Admissions Appeal Panel of Cardiff County Council & Anor [2003] EWHC 436 (Admin)

Case No CO/4730/2002

Case No CO/4731/2002

[2003] EWHC 436 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 13 March 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE RICHARDS

Between

R (Khundakji and Salahi)Claimants

Admissions Appeal Panel of Cardiff County CouncilDefendant

Cardiff County CouncilInterested Party

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr John Friel (instructed by Sinclairs) for Claimants

Mr Peter Oldham (instructed by Cardiff City Council Legal Department) for Defendant

Judgment

[1]The court has before it two claims for judicial review, each with similar facts and raising materially the same issues. Both cases involve children whose parents sought infant class places at Rhydypenau Primary School for the academic year 2002-2003. The admission authority, Cardiff County Council, refused admission and the council's admission appeal panel refused the parents' appeals. It is alleged that the admission appeal panel erred in law, failed to give adequate reasons, reached irrational decisions and failed to take account of the provisions of the European Convention on Human Rights and, in the case of Khundakji, that there was procedural unfairness. The claimant in Khundakji was originally the child's mother but, by amendment, is now the father; the claimant in Salahi is the child's father. The claim in Khundakji proceeds on the basis of re-amended grounds, that in Salahi on the basis of amended grounds.

Facts: Khundakji

[2]An application was made in January 2002 for admission of the claimant's youngest child, Lutfi, to the reception class at Rhydypenau Primary School in September 2002. The accompanying letter from the claimant's wife explained that she already had two children at Rhydypenau and a daughter at Cardiff High School. Arrangements for taking them to school and picking them up from school would therefore be easier if Lutfi were at Rhydypenau. Further, Lutfi already went to Rhydypenau Nursery.

[3]In a letter dated 22 March 2002 the council explained that the number of preferences received in respect of Rhydypenau exceeded the number of places available and that the matter would have to be referred to a committee. An opportunity was given for additional details to be provided in support of the request for a place at Rhydypenau. In reply, the claimant's wife again gave information about the advantages of Rhydypenau as regards taking her children to school and picking them up, adding that she was a housewife and a part-time PhD student which put more stress on her.

[4]The committee's decision was communicated by letter of 10 May 2002, which stated that it was not possible for the council to admit Lutfi to Rhydypenau for the following reasons:

“(a) Each school has a Standard Admission Number for the relevant age group which in the case of Rhydypenau Primary School is 60. The school is over subscribed, that is to say the number of applications for places exceeds the standard admission number. Applications are considered under the Council's published admission arrangements and this sets the priority for admissions to Community Schools. The Council received a total of 77 preferences and authorised the admission of 60 pupils who are resident within the recognised catchment area of Rhydypenau Primary School. (b) The Council is also under a statutory duty under the Schools Standards and Framework Act, to ensure that reception classes do not exceed 30 pupils. We cannot offer a place to your child because the admission would cause prejudice to the efficient education or efficient use of resources as a result of the measures we would have to take to comply with the duty to limit the size of infant class sizes. In shorthand this is called 'class size prejudice'. ”

[5]The claimant's wife lodged an appeal against that decision. In the supporting reasons she referred first to the fact that if Lutfi was unable to join his brother and sister at Rhydypenau she would find it very difficult to get four children to three different schools by 9 a.m. and collect them from school at 3.30 p.m. She had no family in this country to help her with the problem and her husband's health had deteriorated and he had to go to Moorfields Eye Hospital regularly. She herself was a housewife and PhD student, which put more stress on her. She was the kind of person who could not make friends easily, whilst at Rhydypenau she had made a good number of good, supportive and helfpul friends. She was suffering from a depressive illness and a physical problem and felt it would worsen her condition if she had to transport her children between three different schools. Lutfi himself was a sensitive and shy boy who had been going to Rhydypenau Nursery and felt comfortable there, whereas if forced to go to a different school he would feel lonely and isolated. She had no intention of transferring her other children from Rhydypenau to her catchment area, Glyn Coed, for various reasons.

[6]Supporting evidence included a letter from a GP stating that on days when the claimant could not take the children to school, his wife had to do so by public transport. She suffered with depressive illness. The doctor felt that should it become necessary for her to transport her children to three different schools each morning it would have a detrimental effect on her mental health and would be likely to make her condition worse. A letter from Cardiff Children's Services emphasised the immense problems that would be created for her if Lutfi could not attend the same school as two of his older siblings, especially as they were an immigrant family without extended family members in the locality to assist with drop-offs and collections. A letter from the Women Connect First Project, where the claimant's wife was a maths tutor, explained that owing to timetabling constraints the maths sessions could only be allocated in the afternoon period from 1-3 p.m. and it would be almost impossible for her to get to three different schools to collect her children on time.

[7]The council's written statement of case to the panel referred to the statutory provisions and stated that applications had been considered under the published admission arrangements. Places had been allocated to 60 children resident within the catchment area of the school. In referring to the grounds on which the panel might allow the admission of further pupils, the document stated that regard could not be had to "the differential circumstances of individual children in the circumstances of the case".

[8]This appeal and the Salahi appeal were two out of five appeals to the panel against refusal to admit children to Rhydypenau. The first hearing of the appeals took place on 24 June. The claimant and his wife had no legal representation but a number of other appellants, including Mr Salahi, were represented by a solicitor, Mr Charles. He submitted that the council had erred by allocating places automatically to children who resided within the catchment area without considering whether some children living outside the catchment area might have a more compelling case. He also submitted that the failure to consider individual circumstances made the decision unreasonable. Those submissions prompted an adjournment to enable the clerk to the panel to take legal advice.

[9]At the resumed hearing, on 12 July, the council's representative, Mr Fitzgerald, conceded that the council believed that it had no power to admit a further child once the 60 places had been filled. Mr Charles continued to press the point that there had been a failure to consider applications from people outside the catchment area irrespective of whether they might have a stronger case. After hearing the various submissions the panel ruled unanimously that "the [admission] arrangements were not correctly implemented especially in the light of Mr Fitzgerald's admission that they did not consider the circumstances of the parents once they had filled the 60 places". The panel did not accede to the submission that the council's decision was unreasonable.

[10]The panel was advised by its clerk, Mr Anderton, that it should consider individual circumstances and ask itself what a reasonable local education authority might do if the admission arrangements were carried out correctly. In his submissions in this court, Mr Friel said that a distinction has to be drawn between the advice given to the panel and what the panel actually did. In my judgment, however, it is clear that the panel acted on the advice given to it. The panel went on to hear from the council's representative and from the head teacher, who said that the school was bursting at the seams and she did not know what to do if further children were allowed into the school. It considered the personal circumstances of each of the appellants, allowing each in turn to present their case.

[11]The claimant's wife says in her witness statement that within the time allowed she was unable to expand on all the issues in her written case. She explained that due to her husband's health and eyesight problems he was not available to drive the children to school on a regular basis; that her eldest daughter came from a minority Muslim background and also had to be taken to school; that the other two were also taken to school, resulting in trips to two separate schools; and that if the appeal did not succeed, Lutfi would be regularly late for school.

[12]After hearing from everyone, the panel deliberated and then announced its decisions. Two of the appeals were allowed, the others were unsuccessful. A note of proceedings taken at the time, though not purporting to be a verbatim record or transcript, states that the decision in the case of Khundakji was:

"Easier to walk to Glyn Coed than Rhydypenau. Vote No, 3-0."

[13]By letter dated 15 July 2002 the panel's decision was communicated to the claimant and his wife. The letter recorded that the panel found unanimously that admission arrangements had not been carried out correctly, having in particular noted the concession by the council's representative, Mr Fitzgerald, at the hearing. It went on:

“Accordingly, the Appeal Panel having made that finding, then went on to consider if the admission arrangements had been carried out correctly your child would have been admitted to the school. In order to determine this, the Panel took evidence from the Local Education Authority representative, the Headteacher and yourselves. As there were multiple appeals before the Panel, the Panel wished to determine whether had the Local Education Authority carried out the arrangements correctly having regard to parental preference and the personal circumstances of each child, each child was or was not likely to have been admitted. The Appeal Panel gave careful consideration to the grounds put forward by yourselves which included:- a) that Lutfi attends Rhydypenau Nursery; b) that he has an elder brother and elder sister within Rhydypenau school to whom he is very close; c) that Mr and Mrs Khundakji's health is not very good; d) that if their appeal is refused that you will have 4 children in three different schools; e) that Lutfi is a very shy sensitive boy and that he and Renard behave like twins; f) that Mrs Khundakji is also working for a PH.D and is working as a Maths teacher at the Women Work Shop; g) that you are of Palestinian origin and accordingly have no family connections in Cardiff. The Panel found unanimously that applying Paragraph 12 of Schedule 24 of School Standards and Framework Act 1998, in their judgment and balancing the circumstances of the school against your parental preference together with the personal circumstances in your case, the Local Education Authority was not likely to have admitted your child to the school. That is, in your case the Local Education Authority was not likely to have exceeded the statutory class size limit.”

The Appeal Panel gave careful consideration to the grounds put forward by yourselves which included:-

[14]As a result of the unsuccessful appeal Lutfi now attends Ton-yr-Ywen Primary School. The claimant has filed evidence that Lutfi regularly arrives late for school and that the head teacher has written to express concern. Lutfi is emotionally distressed and suffers from lack of sleep, bed-wetting and nightmares. This places a virtually impossible burden upon herself, her husband and her family. Although I have thought it right to mention that evidence, in my view it is not strictly relevant to the issues before me. Subject to an issue on procedural fairness, the lawfulness of the panel's decision has to be assessed on the basis of the material that was before the panel at the time.

Facts: Salahi

[15]I can deal with the facts in Salahi much more briefly, since the differences are not said to have been material to the issues before me. The application for a place at Rhydypenau related to the claimant's daughter Melecca. The council's decision letter, dated 10 May 2002, was in the same terms as for the Khundakjis. Grounds of appeal and amended grounds were submitted. At the panel hearings the claimant was represented by their solicitor, Mr Charles. When the panel heard evidence about individual circumstances, the claimant argued that his daughter was very distraught at the prospect of attending a different school away from her brother and friends. If the children were at different schools she would arrive late to school each day. Transportation of children to different schools would be an impossibility. There was no extended family to call on for support. His daughter would arrive either too early or too late at school, presenting a serious risk to her from paedophiles as she would be waiting in the school yard for the school to open or for her parents to pick her up. She might also suffer racial intimidation elsewhere.

[16]The appeal was unsuccessful, the decision being recorded in these terms in the note of the hearing:

"Ton-yr-Ywen closer to home than Rhydypenau. Vote No, 3-0."

The decision letter dated 15 July 2002 was in the same terms as for the Khundakjis, save that the summary of grounds put forward was particular to the circumstances of the Salahis:

“The Appeal Panel gave careful consideration to the grounds put forward by yourselves which included:- a) that Melecca attends Rhydypenau Nursery; b) that she has an elder brother within Rhydypenau school to whom she is very close; c) that you are concerned about the psychological impact if she were to leave a familiar environment; d) that Mr Salahi has an extremely demanding job that it would be extremely difficult in transporting children to two different schools; e) that Melecca has an exemplary school record and consequently would be more of an advantage than a burden to Rhydypenau primary; f) that the family is of Iranian origin and consequently has no family support in Cardiff; g) that Mr Salahi is extremely concerned that leaving Melecca in the school playground to be collected would endanger her to paedophiles; h) that they are concerned that Melecca may suffer from racialist abuse if she is sent to a school other than Rhydypenau Primary.”

Legal framework

[17]Section 86 of the School Standards and Framework Act 1998 makes provision for parental preferences: “(1) A local education authority shall make arrangements for enabling the 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) to give reasons for his preference. (2) Subject to subsections (3) and (6) … a local education authority and the governing body of 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 the measures required to be taken in order to ensure compliance with the duty imposed by section 1(6) (duty of local education authority and governing body to comply with limit on class sizes).” (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) to give reasons for his preference. (a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources; ….

[18]The reference in section 86(4) takes one back to section 1. Section 1(1) imposes a duty on the Secretary of State by regulations to impose a limit on class sizes for infant classes at maintained schools. Section 1(6) provides that where any limit imposed under the section applies to an infant class at a maintained school, the local education authority and the governing body shall exercise their functions with a view to securing that that limit is complied with in relation to that class. By the Education (Infant Class Sizes) (Wales) Regulations 1998 the limit imposed, subject to specified exceptions, is a maximum of 30 pupils in an infant class while an ordinary teaching session is conducted by a single qualified teacher.

[19]It will be seen that the council's decision not to admit the claimants' children to Rhydypenau was based on 86(3)(a) and (4) of the 1998 Act, in that there was a standard admission number of 60 reflecting the limit on infant classes laid down in the regulations (two classes of 30 each) and the council took the view that admission would cause prejudice to the efficient education or efficient use of resources as a result of the measures required to comply with the duty under section 1(6).

[20]Section 94 of the 1998 Act requires a local education authority to make arrangements for enabling the parent of a child to appeal against any decision made by or on behalf of the authority as to the school at which education is to be provided for the child in the exercise of the authority's functions. By section 94(5), Schedule 24 has effect in relation to the making and hearing of such appeals. It provides for an independent appeal panel, whose decision is binding on the authority by virtue of section 94(6). Schedule 24 also makes provision for the constitution and procedures of the panel.

[21]Paragraph 11 of Schedule 24 provides:

“11. The matters to be taken into account by an appeal panel in considering an appeal shall include - (a) any preference expressed by the appellant in respect of the child as mentioned in section 86, and (b) the arrangements for the admission of pupils published by the local education authority or the governing body under section 92.”

[22]The central provision, however, for present purposes is paragraph 12, which reads:

“12. Where the decision under appeal was made on the ground that prejudice of the kind referred to in section 86(3)(a) would arise as mentioned in subsection (4) of that section, an appeal panel shall determine that a place is to be offered to the child only if they are satisfied - (a) that the decision was not one which a reasonable admission authority would make in the circumstances of the case; or (b) that the child would have been offered a place if the admission arrangements (as published under section 92) had been properly implemented.”

[23]By the regulations on infant class size, a child offered a place pursuant to a determination of an appeal panel under paragraph 12 is an exception to the maximum of 30 pupils per class.

[24]Paragraph 15 of Schedule 24 provides that the decision of an appeal panel and the grounds on which it is made shall be communicated by the panel in writing to the appellant and the local education authority.

[25]The effect of these provisions was considered at length by the Court of Appeal in School Admission Appeals Panel v. London Borough of Hounslow

[2002] EWCA Civ 900

[2002] ELR 602

. In that case the local education authority operated an admission policy which gave priority to children who lived in nearby areas. The authority was required to comply with the English version of the regulations cited above which placed a limit of 30 on infant class sizes. Four children were refused admission on the application of the admission policy. The panel allowed their parents' appeals under paragraph 12(a) on the ground that the decisions not to admit the children were unreasonable, because the authority had failed to take account of the impact on the families of its admission policy. The panel found under paragraph 12(b) that the policy had been properly implemented. The panel's decisions were quashed at first instance by Maurice Kay J, whom the Court of Appeal upheld for different reasons.

[26]May LJ, giving the leading judgment with which the other members of the court agreed, described the approach to be adopted under paragraph 12(a) in these terms: “51. … Paragraph 12 does not, in my view, negate para 11 for appeals where the admission decision was made on the basis that to comply with parental preference would take the size of an infants class above 30. Parental preference remains relevant, but the scope for a successful appeal under para 12(a) is limited to cases where the appeal panel are satisfied that the 'decision was not one which a reasonable admission authority would make in the circumstances of the case'. The 'decision' is 'the decision under appeal', that is the decision not to admit the individual child. The 'circumstances of the case' must, in my view, include the child's particular circumstances including, as para 11 requires, any preference expressed by the parents. The circumstances also include the local authority's admission arrangements. So the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit this particular child. I have already indicated my view that the panel's decisions in the present cases did not decide the appeals by reference to individual circumstances ….” (page 624, para 51, emphasis added).

[27]May LJ went on to criticise the local education authority's documentation and the Code of Practice, which misrepresented the effect of paragraph 12 and meant that the parents' cases on appeal had not in the main been directed to their individual circumstances. In the context of those criticisms he came back to the scope for addressing parental preference where to do so would take an infant class size above the limit of 30: “58 … As I have said, there are situations where a local education authority is obliged by s.86(2) of the SSFA 1998 to comply with an expression of parental preference. By a combination of subss (3)(a) and (4), they are not obliged to comply with a parental preference, if to do so would take the size of an infant class above the statutory limit of 30. The fact that the local education authority does not have to comply with the parental preference does not mean that they do not have to take it into account. Nor does it mean that there can be no basis for an appeal against a local authority's decision to refuse admission, if their reason for refusal is that the statutory limit on the size of infant classes would be exceeded. The ground of appeal is that 'the decision is not one which a reasonable admission authority would make in the circumstances of the case'. The 'decision' is the 'decision under appeal', that is the particular decision not to admit the particular child, not, as para B.13 [of the Code of Practice] suggests, 'the decision that class size prejudice would arise'. The 'circumstances of the case' must include the child's circumstances. The available ground of appeal is very limited. It has to be shown that the local education authority's decision not to admit the child was perverse, which may be very difficult indeed, if there are more than 30 children competing for admission to the relevant class. But the circumstances of the particular child are not irrelevant. 59. As I have said, the essential question for the appeal panel is whether it was perverse in the light of the admission arrangements to refuse to admit the particular child. I accept Mr Kerr's submission that the admission arrangements may normally be taken for what they are as reasonable, and that the appeal panel's consideration will concentrate on their application to the particular child ….” (pages 626-7, paras 58-59, emphasis added).

[28]He went on to consider the extent to which the legality of the admission arrangements themselves was open to question on appeal and to reject the suggestion that, where the legality of such arrangements was in issue, the panel should adjourn to enable an application to be made for judicial review. He expressed the view at the end of paragraph 59 that the appeals had got bogged down with those questions. Such issues do not arise in the present case. He also expressed the view that the appeals had perhaps become bogged down with submissions as to human rights. I shall come back to that when dealing with the submissions advanced by reference to the Convention in the present case.

[29]Finally, May LJ summarised as follows the general approach that should be taken on an appeal: “63. In the light of all this, if it comes to an appeal to an appeal panel, parents need to make a particular case which is so compelling that the decision not to admit the child is shown to be perverse. A local education authority opposing an appeal will need to explain their admission arrangements, explain their particular problems in relation to the school in question, and show that, unfortunate though it may be, it was objectively fair not to admit the child in question. They may wish to show that they had to refuse admission to several children with good cases, but that admitting one or more of those children would have entailed refusing one or more of those who were admitted because of the class size limit. As to the panel, their task is not simply to rubber stamp the local education authority's decision, but they can only uphold the appeal if they conclude that it was perverse in the light of the admission arrangements to refuse to admit the particular child. Their task is not to take again the original decision” (page 629, para 63).

Issues

[30]In the course of his submissions Mr Friel reorganised his case so as to address the following main issues: i) whether, since the panel found that the council had acted unlawfully in its consideration of the applications, they were bound by paragraph 12 of Schedule 24 to determine that places be offered; ii) whether the panel applied the wrong legal test in their own consideration of the appeals; iii) whether the panel failed to give adequate reasons and/or reached an irrational decision and/or failed to take account of the Convention, in particular by failing to deal with, or to take a decision that properly reflected, the fact that the children would be liable to arrive late for school if they were not admitted to Rhydypenau; and iv) whether, in relation to the Khundakjis, the proceedings before the panel were vitiated by procedural unfairness by reason of the failure of the council or the school to disclose material that was allegedly inconsistent with the evidence given to the panel by the head teacher.

[31]I shall deal with matters in that order rather than in the order in which they appear in the re-amended or amended grounds and skeleton arguments.

First issue: duty to determine that places be offered?

[32]The first point is a short one. Mr Friel submits that, once the panel determined that the council had erred by failing to consider individual circumstances, they were bound to determine that places be offered to the appellants' children. Paragraph 12 of Schedule 24 provides that the panel "shall" determine that a place is to be offered to a child if they are satisfied that the decision was not one which a reasonable admission authority would make in the circumstances of the case. The panel were so satisfied. They were therefore under a duty to determine that a place be offered.

[33]I reject that submission. The panel certainly found that the council had erred in its consideration of the applications, in particular by failing to consider the applicants' individual circumstances. It does not follow, however, that the panel found that the council's decision was unreasonable ("not one which a reasonable admission authority would make in the circumstances of the case"). The panel made no such finding and no such finding can be inferred. A finding of legal error does not equate with a finding of unreasonableness: Mr Friel's submission that a reasonable authority would have got the law right and considered the applicants' individual circumstances is ingenious but does not reflect the distinction between unreasonableness and other errors of law. Moreover, as I shall explain in relation to the next issue, the panel's actual finding was inconsistent with a finding that the decision not to admit was unreasonable.

[34]Furthermore Mr Friel's submission runs counter to the reasoning and conclusion of the Court of Appeal in the Hounslow case. In that case the panel had found the local education authority's decision to be unreasonable within paragraph 12(a) because of a failure to take account of the impact of its admission policy on the families. The authority had indeed so erred, but that was evidently considered by the Court of Appeal not to be a proper basis for a finding of unreasonableness under paragraph 12(a). I have already quoted extensively from the judgment of May LJ, in which he held that the essential question for the appeal panel was not whether the authority had erred but whether it was perverse in the light of the admission arrangements to refuse to admit the particular child. May LJ also emphasised the limited nature of that ground of appeal. Mr Friel submitted that the Court of Appeal did not consider the point he now advances. The reality is that the court's judgment excludes the point he now advances.

[35]Mr Oldham, for the panel, relied on passages of the Code of Practice by way of additional support for his submission that this ground should be rejected. I think it unnecessary to refer to them and I am conscious that the Code of Practice must be treated with some circumspection in the light of the criticisms made of it in the Hounslow case. It suffices that, for the reasons I have already given, I regard this ground of challenge as plainly wrong.

Second issue: error of law by the panel?

[36]Mr Friel criticises the panel's conclusion in each case that, balancing the circumstances of the school against parental preference and personal circumstances, the council "was not likely to have exceeded the statutory class limit size". To approach the matter in that way was, he submits, legally erroneous. Under paragraph 12 of Schedule 24 the panel had to ask themselves two questions: first, whether the decision was one which a reasonable admission authority would make in the circumstances of the case and, secondly, whether the child would have been offered a place if the published admission arrangements had been properly implemented. By asking themselves whether the council "was likely" to have exceeded the class size limit, they failed to approach the matter in terms of the statutory wording.

[37]I have no doubt that the panel approached its task with the decision of the Court of Appeal in Hounslow well in mind. That decision was handed down on 25 June 2002, the day after the first hearing before the panel but over two weeks before the adjourned hearing on 12 July. It was addressed in addendum grounds of appeal put in by Mr Charles on behalf of his clients. The notes of the adjourned hearing show that the panel was directed to May LJ's judgment. The finding that the council had erred by failing to consider individual circumstances, and the advice, acted on by the panel, that the panel should proceed by considering individual circumstances and asking themselves what a reasonable local education authority might do if the admission arrangements were carried out correctly, reveal an approach that reflects in substance the requirements laid down in Hounslow.

[38]I accept that the panel introduced a degree of confusion by failing to adopt in terms the approach laid down in Hounslow and by expressing their conclusion in terms of likelihood and by failing to spell out how it tied in with the provisions of paragraph 12. But I am satisfied that the panel's conclusion amounted to a finding that the criteria for a successful appeal under paragraph 12 were not satisfied and that such a finding was lawful.

[39]As to paragraph 12(a), the panel adopted in substance a perversity test. Once they decided that the council had erred by failing to consider individual circumstances, they embarked upon the task of considering what a reasonable authority might do if individual circumstances were properly considered. That was what they were advised to do by their clerk and in my view that is what they did. They considered the circumstances at the school, the parental preference and the individual circumstances of the case, carried out a balancing exercise, and concluded that a reasonable authority approaching the matter in that way was not likely to have admitted the child. It followed, though this was not expressed in terms, that the council's decision not to admit the child could not be said to be perverse. It would of course have been better to spell the reasoning out more clearly. As it was, the decision letters stated only that the council was not likely to have admitted the child if the balancing exercise had been carried out. But if the letters are read in context, including what happened at the hearing, I am satisfied that the panel's view was that the council, acting reasonably, was not likely to have admitted the child if the individual circumstances of the case had been considered. On that basis the decision not to admit was one that a reasonable authority could make and was likely to make in the circumstances of the case. The panel's finding therefore amounted to an implicit but clear rejection of the submission that the decision fell within paragraph 12(a) as being "not one which a reasonable admission authority would make in the circumstances of the case".

[40]It is not entirely clear whether paragraph 12(b) was strictly in play. Both counsel were inclined to agree before me that it relates a situation where there has been a failure to give proper effect to the published admission arrangements, as where a child has been wrongly treated as falling outside the catchment area. If that is right, then it does not apply to the present cases, since no such failure is alleged. On the other hand some of the language used at the panel hearing and in the decision letters suggests that the panel may have regarded the failure to consider individual circumstances as amounting to a failure properly to implement the admission arrangements. Even if paragraph 12(b) was capable in principle of applying to this situation, the panel's finding in each case that the council, acting reasonably and taking individual circumstances into account, was not likely to have admitted the child meant that the provision was not satisfied. By its very nature that finding excluded the possibility that "the child would have been offered a place if the admission arrangements … had been properly implemented".

[41]In considering this issue I have borne in mind that the panel is a lay body and that its decisions should not be subjected to unduly narrow and legalistic scrutiny. What matters is that I am satisfied that the approach adopted was in substance correct.

Third issue: reasons, rationality and the Convention

[42]The primary submissions under this head concern the panel's approach to the evidence that the children would arrive late at school if they were not given a place at Rhydypenau.

[43]Before I deal with that, however, I should dispose of a more general point made by Mr Friel in relation to reasons. He submitted that the decision letters failed to set out all the factors relied on by the appellants and failed to make findings on the individual circumstances of the case. They merely referred in general terms to balancing the circumstances of the school against parental preference and personal circumstances. In addition, the format of the two letters was materially the same. He cited R v. Birmingham City Council, ex p. B

[1999] ELR 305

at 310H-311B, where Scott Baker J criticised a standard letter which "tells [the appellant] nothing about why his appeal was unsuccessful and does nothing more than make ritual incantation of the two-stage process that is applicable for deciding these appeals". He also cited Oxfordshire County Council v. GB

[2001] EWCA Civ 1358

[2002] ELR 8

, another case on reasons in an educational context.

[44]In my judgment that criticism of the decision letters is misplaced. These letters were drafted to deal in terms with the issues arising on the appeals. They explained the panel's finding that the council had erred in its approach and how the panel itself had then gone about its task. They stated that the panel had given careful consideration to the grounds put forward by the appellants, in each case listing relevant factors that were specific to the appeal. They went on to set out the panel's conclusion. This is not remotely like a "ritual incantation" of the kind criticised by Scott Baker J in the Birmingham case. The Oxfordshire case does not advance matters. As I have already held, the conclusion that the panel reached in the application of paragraph 12 of Schedule 24 amounted to a finding that the case did not come within either paragraph 12(a) or paragraph 12(b). Although matters could in some respects have been expressed better, the reasoning was intelligible and adequate.

[45]Mr Friel also submitted that the only reasons given when the panel announced its decisions at the hearing were, in the case of Khundakji, that it was easier to walk to Glyn Coed than to Rhydypenau, and in the case of Salahi, that Ton-yr-Ywen was closer to home than Rhydypenau. He contrasted that with the somewhat fuller reasons given in relation to one of the successful appellants (though an equally brief reason was given in relation to the other successful appellant). Moreover the decision letters do not mention the reasons given at the hearing. Those considerations too, he submitted, should lead the court to hold that inadequate reasons were given.

[46]I attach no importance to the fact that the decision letters do not mention the "reasons" given at the hearing. The decision and grounds had to be communicated in writing pursuant to paragraph 15 of Schedule 24. The decision letters are the record of each decision and of the grounds for that decision. What was said in announcing the decision at the hearing was plainly not intended to constitute the entirety of the reasons for the decision. The panel appears to have mentioned at the hearing the factor or factors considered to be of particular significance for determining where the balance came down. But the decision letters made clear that in striking the balance the panel had considered the various grounds put forward by the appellants, including the matters specifically listed in each letter. It was unnecessary to spell out as part of the grounds which factor or factors the panel considered to be of particular significance in striking the balance. It was sufficient to indicate in general terms what had been taken into account, the nature of the balancing exercise carried out, and the conclusion reached.

[47]I can now turn to the matter about which Mr Friel makes specific complaint, namely the issue of lateness for school. This, he submits, was an issue raised in the appeals of both claimants. In each case there was evidence that, if the child was not admitted to Rhydypenau, the problems of transporting the child and his or her siblings to different schools would mean that the child would be late for school. There was no basis for inferring that lateness would be only a minor problem (and, if the court were willing to take into account the recent evidence in relation to Lutfi, it would support the case that it is a very real problem). Lateness is a serious matter. If a child is repeatedly late and therefore absent from school at the time when the attendance register is taken, the parent will be guilty of a criminal offence under section 444 of the Education Act 1996 (failure to secure regular attendance at school): see Hinchley v. Rankin

[1961] 1 All ER 692

for the significance of the attendance register and Crump v. Gilmore

(1969) 68 LGR 56

for the absolute nature of the offence. Further, a situation in which a child has to arrive late for school is incompatible with articles 8 and 14 of the Convention and with the right to efficient education under article 2 of protocol 1, as to which see generally the Belgian Linguistic Case (No.2)

(1968) 1 EHRR 252

and Campbell and Cosans v. United Kingdom

(1982) 4 EHRR 293

. Yet the panel's decisions make no mention of regular lateness for school and there is no evidence that the panel appreciated it to be an important issue.

[48]I do not accept the submission that the panel failed to take account of the issue of lateness for school. I see no reason to reject the statement in each decision letter that the panel gave careful consideration to the grounds put forward by each appellant. It is true that lateness is not one of the specific matters listed in the letters, but the list does not purport to be exhaustive: the matters listed are said to have been "included" in the grounds considered by the panel. Lateness for school was, moreover, an aspect of the grounds advanced about the difficulties of transporting the children of each family to different schools, and those difficulties are referred to or underlie item (d) in each letter ("that … you will have 4 children in three different schools" and "that … it would be extremely difficult in transporting children to two different schools"). It also needs to be borne in mind that lateness for school was not given the same prominence before the panel as Mr Friel has given to it in his submissions to this court, though the present submissions were foreshadowed in the addendum grounds of appeal submitted by Mr Charles on behalf of his clients, which referred in the final paragraph to the criminal offence under s.444 of the 1996 Act and to the Convention, contending that "[a] proposal which contemplates that a child will necessarily be late for school regularly cannot be acceptable" and would be an infringement of Convention rights.

[49]Essentially the same submissions on the issue of lateness of school, including s.444 of the 1996 Act and the Convention arguments, were advanced by Mr Friel in the Hounslow case both at first instance before Maurice Kay J and before the Court of Appeal. They are summarised in paragraph 48 of May LJ's judgment. There was no finding on them at either level. Mr Friel explains that by the time of the Court of Appeal hearing the issue had become strictly academic because the relevant party had dropped out of the proceedings. Be that as it may, if the point were of such potency as Mr Friel suggests, the absence of any reference to it in the Court of Appeal's lengthy discussion of issues concerning admission decisions would be surprising.

[50]Whether lateness for school is a valid ground to advance at all will of course depend on whether the family's particular circumstances mean that refusal of admission at the school of preference will result in a child being regularly late for school despite reasonable efforts to get him or her to school on time. Although it is easy to assert that a child will be late, and no doubt the assertion is frequently made, it may often lack any adequate factual underpinning. But on the assumption that the ground is a valid one, I take the view that it is capable of carrying real weight in the balancing exercise. It is plainly undesirable that a child should regularly miss any part of the day's schooling. On the other hand, the criminal offence under s.444 of the 1996 Act is of only limited significance: if, as must be assumed for this purpose, parents were making all reasonable efforts to get their children to school on time but were prevented from doing so by the problems of transporting them to different schools, I regard it as inconceivable that a prosecution would be brought against them.

[51]How much weight should be given to lateness for school relative to other considerations is, however, a matter for panel. Lateness for school cannot be regarded as a necessarily determinative factor. It is one of a potentially large number of factors to be weighed in the balance as part of the overall circumstances of the case. It is for the panel to judge whether, having regard to the issue of lateness for school and the other circumstances of the case, it was perverse to refuse admission. Provided that the panel takes all relevant considerations into account, its own assessment is itself open to challenge only on grounds of irrationality. In this case I am satisfied, as I have said, that the panel took the issue of lateness for school into account. Its overall conclusion cannot possibly be regarded as irrational.

[52]As to the Convention, I note the observations of May LJ in Hounslow on the subject: “62. … I indicated during the hearing my view that extended reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and cases decided under it would not advance matters. That did not of course mean that Convention rights are irrelevant - far from it. Of course, Hounslow, the panel and this court are public authorities within s.6 of the Human Rights Act 1998 and the court is required by s.2 of the Act to take into account, among other things, decisions of the European Court of Human Rights. But in the present cases the relevant considerations are obvious and can be simply expressed. A local education authority's school admission arrangements must be fair and fairly operated. If a school is over-subscribed, there will necessarily be discrimination, because not every child whose parents apply for admission can be admitted. This may be particularly acute with admissions to infants classes, because of the statutory limit on their size. No one suggests that a limit of this kind is other than desirable. Discrimination needs to have a reasonable objective justification. Some children will have stronger cases than others for admission. A child with an elder brother or sister in a school may well have a strong case wherever they live; but so may a child who lives close to the school. Neither child's relevant Convention rights are by definition infringed, nor is it by definition objectively unfair, if either of them fails to gain admission. If there are too few infant class places for all who apply, local education authorities have to make practical admission decisions which are objectively fair and by a process which is fair” (page 629, para 62).

[53]So too in the cases now before me I take the view that the Convention adds nothing material to the issues. As to the general framework, I can rely on what May LJ said in Hounslow. The specific point about lateness for school arises for consideration as a straightforward matter of domestic law apart from the Convention. Nothing in the Convention, including article 2 of protocol 1, deals specifically with the issue or confers a right for a child to be admitted to a school because he or she would be late for school in the mornings if required to attend a different school.

[54]For all those reasons I reject the submission that the panel erred in relation to the issue of lateness for school or that they erred more generally by a failure to give adequate reasons, to reach a rational decision or to take account of the Convention.

Fourth issue: procedural fairness

[55]The final ground of challenge, added by re-amendment in the Khundakji case, is to the effect that the school presented a case to the panel which was inconsistent with undisclosed documents in its possession and that this created a situation of such unfairness that the panel's decision should be quashed. At the hearing before the panel, the head teacher at Rhydypenau gave evidence opposing any increase in numbers beyond the class size limits. She pointed to deficiencies in the school's facilities and asked the panel to acknowledge that the school was bursting at the seams. Mr Friel submits that the picture painted is radically different from that which emerges from an OFSTED/ESTYN inspection report in December 1999 and a Governors' report dated November 2002, which have subsequently come into the possession of the Khundakjis. He says that even though the head teacher believed that she was presenting an accurate picture, it was in fact overstated or unreasonable. This caused the panel to be misled and gave rise to an inadvertent unfairness. In support of his submission, Mr Friel cited A v. Kirklees Metropolitan Council

[2001] EWCA Civ 582

[2001] ELR 657

and T v. London Borough of Islington

[2001] EWHC Admin 1029

[2002] ELR 426

[56]There are at least two complete answers to that submission. First, the head teacher has deposed to the fact that the evidence she gave the panel was entirely accurate, and in the absence of cross-examination I must accept her evidence. She also cites passages in the inspection report to support the view that aspects of accommodation, safety and security are in urgent need of attention. She states that, although several issues of security have been addressed since publication of the report, concerns about aspects of the school's accommodation and the associated issues of health and safety remain. Only one third of the children are in permanent accommodation. I do not think it necessary to quote from the inspection report or the Governors' report. In my view, despite many favourable findings in the inspection reports and various up-beat remarks in the Governors' report, the submission that conditions at the school are radically different from those described to the panel by the head teacher is unsustainable on the evidence. The case on unfairness therefore falls away.

[57]Secondly, the evidence is that the inspection report was a published document and was available to the parties at the date of the appeals to the panel. Mrs Khundakji, as the parent of another child at the school, would have been given a copy when the report was published. It was open to her or another appellant to bring published material about the school to the attention of the panel if they wished to do so. The Governors' report post-dated the panel decision. The suggestion that relevant evidence was withheld is therefore factually in error and again the case on unfairness falls away.

[58]In the circumstances I do not propose to embark upon detailed analysis of the authorities relied on by Mr Friel, but it is right to record Mr Oldham's submission that they relate to very different situations. Both concerned decisions by Special Educational Needs Tribunals, which have specific procedural rules as compared with the fluid procedures for panel appeals in the present context. Moreover in the Islington case the tribunal had specifically asked the authority for a copy of the relevant OFSTED report. A further difference is that in this case the complaint relates not to the council, which was a party to the appeal, but to the evidence given by the head teacher of the school.

[59]Whether or not those points of distinction are valid does not matter for present purposes, since I consider this ground of challenge to lack an adequate factual foundation in any event.

Conclusion

[60]I have rejected each of the grounds of challenge as developed by Mr Friel. I do not need to deal with matters that were not so developed, but for the avoidance of doubt I should indicate that I have seen nothing else in the grounds that could in my view get the claimants home. Nor do I need to consider a further contention by Mr Oldham that, if the claimants were otherwise succesful, relief should be refused on grounds of delay.

[61]It follows that each of the claims must be dismissed. - - - - - - - - - - - - - MR JUSTICE RICHARDS: I am handing down judgment in both these cases, without attendance by the parties or their legal representatives. A draft of the judgment was sent to counsel, who have made written submissions as regards consequential orders. For the reasons given in the judgment handed down, both claims are dismissed. In the case of Khundakji, the claimant is ordered to pay the defendant's costs, amounting to 50 per cent of the costs expended in defending the two claims, such costs to be subject to detailed assessment if not agreed, and such order not to be enforced without the permission of the court. There will also be detailed assessment of the claimant's costs for public funding purposes. In the case of Salahi, there will be an order that the claimant pay the defendant's costs, again amounting to 50 per cent of the costs of defending the two claims, such costs to be subject to detailed assessment if not agreed. In both cases permission to appeal is refused on the ground that in the light of the judgment of the Court of Appeal in the Hounslow case, which I referred to at length in my own judgment, there is no real prospect of success, and no compelling reason why an appeal should be considered.