THE GOVERNING BODY OF THE LONDON ORATORY SCHOOL v THE SCHOOLS ADJUDICATOR [2005] EWHC 1842 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
[2005] EWHC 1842 (Admin)Case No Case No. CO/4912/2005Venue Royal Courts of Justice., Strand. London WC2A 2LL
Between
THE GOVERNING BODY OF THE LONDON ORATORY SCHOOLClaimantTHE SCHOOLS ADJUDICATORDefendant(1) SECRETARY OF STATE FOR EDUCATION AND SKILLS(2) THE GOVERNING BODY OF PETERBOROUGH PRIMARY SCHOOLInterestedParties
Before
MR. JUSTICE CRANEMr. Nigel Giffin QC (instructed by Payne Hicks Beach) for the ClaimantMr.Clive Lewis (instructed by the Treasury Solicitor) for the DefendantHanded down, 12 August 2005Date 12 August 2005
[1]The Claimant seeks to challenge by judicial review the decision of the Schools Adjudicator dated 21 June 2005 that he had jurisdiction to determine an objection from Peterborough Primary School to the admission arrangements of the London Oratory School for the school year 2006-7. The issue is whether a regulation prevents him from so determining the objection as a result of the outcome of a similar objection in the previous year. Sir Michael Harrison considered the papers on 22 July 2005 and adjourned the permission application for oral hearing. He ordered that if permission were granted the court was to proceed to deal with the substantive hearing immediately thereafter or to treat the permission hearing as the substantive hearing. In the event I indicated during the hearing that I was granting permission. Having heard full argument from both counsel, I dismissed the application for judicial review, indicating that I would hand down my judgment. The law[2]Under the School Standards and Framework Act 1998 provision is made by section 90(1) for the reference to the adjudicator of objections of this kind to admission arrangements. Subsection (3) provides: "On a reference under subsection (1) ... the adjudicator shall either –(a) decide whether, and (if so) to what extent, the objection should be upheld, or(b) in such cases as may be prescribed, refer the objection to the Secretary of State for that question to be decided by him".[3]The objection is to the practice of interviewing. Since the issue concerns criteria to religion it is a case prescribed for reference to the Secretary of State.[4]Section 90(7) provides for the publication by the adjudicator or the Secretary of State of decisions and the reasons for them. Subsection (9)(e) provides for the making of regulations "prohibiting or restricting the reference under subsection (1) ... , within such period following a decision by the adjudicator or the Secretary of State under this section as may be prescribed, of any objection raising the same (or substantially the same) issues in relation to the admission arrangements of the school in question;".[5]The Education (Objections to Admission Arrangements) Regulations 1999 include such a regulation. Regulation 9 is headed "Limitation on later objections" and reads in part: "(1) Where an objection about the admission arrangements for a particular school for a particular school year had been decided by the adjudicator or the Secretary of State, no subsequent objection may be referred (by the person or body who made the objection or by anyone else) about-(a) those arrangements, or(b) the arrangements for that school for the next following school year, which raises the same or substantially the same issue".[6]I have been referred to the judgment of Goldring J. in R. (Watford Grammar School for Girls) v. Adjudicator for Schools [2004] EWHC 1729 (Admin). He was considering a second adjudication in circumstances in which, if that were quashed, there would be no time for a workable third adjudication. He said:
"17. I have to say that it seems to me it is quite clear what the effect of quashing the second adjudication would be. The adjudication would no longer stand. As a result of the operation of section 90(3), the Adjudicator would be obliged to consider those objections for what would be a third time. It is not, it seems to me, open to him to do nothing. It is not open to me, in the face of specific statutory provisions, to declare that he should do nothing. It is not possible in my view for valid objections, which have been made in accordance with section 90(2), simply to hang in limbo"
. As a result Goldring J. refused permission to apply for judicial review.[7]CPR 54.19 reads: "( 1) This rule applies where the court makes a quashing order in respect of the decision to which the claim relates. (2) The court may -(a) remit the matter to the decision-maker; and(b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. (3) Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself. (Where a statutory power is given to a tribunal, person or other body it may be the case that the court cannot take the decision itself). The history[8]In fact an objection had been made in the previous year. The sole issue is whether that objection "had been decided by the adjudicator or the Secretary of State" within the meaning of regulation 9(1).[9]That objection was in the first instance decided by the adjudicator on 15 October 2004, upholding the objection. The Claimant applied for judicial review and the decision was quashed by Jackson J. He held that for a number of reasons the decision was flawed.[10]In discussing the remedy, he said: "63. The next question is whether I should remit the matter to the Adjudicator so that she could make a fresh determination upon the objection raised by the Peterborough Governors pursuant to section 90(3) of the 1998 Act. Mr. Swift, in his forceful submissions ... argued that that is the proper course of action".[11]He rejected the submissions for a number of reasons, but they are summarised by his finding that it would be unreasonable in the Wednesbury sense at that late stage to force the Oratory School to change its admission process by omitting interviews. He went on:
"8. Accordingly, if this court remits the matter now to the Adjudicator there is only one decision which lawfully the Adjudicator could take. That would be to dismiss the objection to interviewing raised by the Peterborough Governors."
[12]He added the following comment: "65 .... The decision which I have made relates solely to the admission arrangements for September 2005. It is now simply too late to deal with the objection to interviewing that has been raised. If in future years the Governors of the Oratory School propose to interview applicants for places and if in future years objection is taken to that proposal, such an objection can be put before the Schools Adjudicator and all the issues can be considered afresh. The arguments against interviewing can be deployed and the arguments advanced by the School in favour of interviewing, including the extensive material which has been lodged in the course of the hearing, can also be deployed. The outcome of any future application to admissions procedures in future years will be a matter for the Adjudicator, upon which I make no comment. I am dealing in this case with the lawfulness of a determination made in respect of the admissions arrangements for September 2005".[13]Both counsel agree that there is no indication that Jackson J. was referred to or had in mind Regulation 9(1) when making those remarks.[14]On an application for permission to appeal, Laws LJ gave these reasons for refusing:
"Jackson J concluded (#64(7)) that in the events which had happened it would be 'Wednesbury' unreasonable for the Adjudicator now to require the abandonment of interviews, and accordingly there is now 'only one decision which lawfully the Adjudicator could make' (#64(8)) (ie not to uphold the objection to interviews). If that was a proper conclusion in the circumstances the judge was quite entitled not to remit the matter, since any further determination by the Adjudicator would be a formality in the sense that s/he could only reach one lawful conclusion. On this basis there is no usurpation of the Adjudicator's role under s.90 (3) of the 1998 Act, and the case is quite different from Goldring 1's decision in the Watford Grammar Schools case. The Adjudicator's concern that there is here a 'point of principle' is misplaced. The judge has not purported to decide the merits of interviews for himself. He specifically disavows doing so: see #65. He has merely held that because of the very severe time pressures it would be irrational to disrupt the admissions arrangements for September 2005. I see no basis on which the conclusion of the judge on this narrow issue should arguably be departed from."
Submissions and conclusions[15]Mr.Giffin QC on behalf of the Claimant submitted as follows. A valid objection once made must be decided upon, although he conceded that he meant that it was not lawful for the objection to be left undecided upon. In normal circumstances the adjudicator decides. The court has power under CPR 54.19(3) to take the decision if the decision is quashed and there is no purpose in remission. That power remains available in a case in which only one decision would on remission be lawful. Jackson J. held that only one decision was lawful and refused to remit The court must proceed on the basis that Jackson J's conclusions were correct and his disposal of the case lawful. Hence, since CPR 54.19(3) was available, it must be concluded that that power was used. Hence the objection was in fact decided upon and since CPR 54.19(3) is a matter only of mechanics, the reference in Regulation 9(1) must be interpreted on a purposive construction as including a case in which the court decides. The court in such circumstances stands in the shoes of the adjudicator.[16]Mr. Lewis on behalf of the Defendant submitted that this chain of reasoning is flawed. The decision of the adjudicator was quashed, leaving no surviving decision. In fact Jackson J. decided not to remit the matter. He did not in fact exercise the power under CPR 54.19(3), although Mr. Lewis did not contend that Jackson J. was prevented from doing so. In any event, even if he had exercised the power, the decision would not have been that of the adjudicator or the Secretary of State.[17]Although neither counsel submitted that Jackson J. could not have decided the matter under CPR 54.19(3), I consider that in a future case it may be necessary to consider whether this is one of those situations, referred to in the rule itself, in which the statutory power is given to the adjudicator or the Secretary of State and cannot be exercised by the court. I also leave for future consideration the question whether, if the court does have power to decide, that decision is to be regarded as a decision of the adjudicator or of the Secretary of State for the purposes of regulation 9(1).[18]On reflection, I am not sure that the approach of Goldring J. and that of Jackson J. to the leaving of an objection undecided are wholly reconcilable. I suggest that the answer to the problem is to be found, at least by implication, in the reasoning of Jackson J. and Laws LJ and in the words of section 90(3). The duty of the adjudicator is to decide whether the objection should be upheld. If it is practicable to decide on the merits, obviously the adjudicator must do so. That should normally be the situation. But it may have become impracticable to do so, because of delay caused by legal proceedings or perhaps other causes. If so, the adjudicator may in my judgment for reasons of impracticability decide not to uphold the objection. I accept that such a decision would be a decision for the purposes of regulation 9( 1), although not a decision on the merits.[19]However, in the present case there was in fact no surviving decision in the previous year, certainly no decision of the adjudicator, either on the merits or otherwise. Jackson J. did not in fact remit the matter for decision. Nor did he in fact take the decision himself. Thus I accept the arguments of Mr. Lewis.[20]I accept Mr.Giffin QC's submission that there should be a purposive interpretation of regulation 9(1). I accept that one purpose is to avoid a school having to meet objections in successive years. However, it is clearly the overall purpose of section 90(3) and regulation 9(1) that objectors should, if it is practicable, obtain an adjudicator's decision on their objection on its merits. I do not regret that my conclusion will enable them to do so.

Cited in 2 later judgments