P v The Schools Adjudicator & Ors [2006] EWHC 1934 (Admin)

Case No CO/2689/2006[2006] EWHC 1934 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 th July 2006
Before
MR JUSTICE WILKIE
Between
PClaimantThe Schools AdjudicatorRespondent1. London Diocesan Board of SchoolsInterested Parties2. Secretary of State for Education and SkillsRespondent(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Wolfe and Tessa Hetherington (instructed by Leigh Day & Co) for ClaimantClive Lewis (instructed by Treasury Solicitor) for RespondentMartin Chamberlain (instructed by Treasury Solicitor) for Secretary of State
Judgment
[1]This is an application, now made by the mother of two pupils at the St Mary Magdalene primary school (SMMPS), for judicial review of the decision of the Schools Adjudicator (the Adjudicator) to approve discontinuance of SMMPS, a maintained school, in anticipation of the establishment of an Academy which is, in law, an independent school. The challenge is launched on six grounds which can be summarised as follows: 1. Whether the Adjudicator acted lawfully in approving the discontinuance by reference to a draft funding agreement without requiring the final agreement to be made to be in the same terms as the draft; 2. Whether the Adjudicator misdirected himself in deciding that he could not make his approval of discontinuance conditional upon a funding agreement containing particular terms; 3. Whether the Adjudicator, in deciding whether or not to approve the discontinuance, needed to consider whether there were reductions in the rights and protections of children and their parents, when comparing the maintained school being discontinued with the Academy which was to replace it, and, if so, whether those reductions were justified by relevant benefits; 4. Whether the Adjudicator acted lawfully in reaching a conclusion on rights and protections without identifying the reductions he was considering or identifying any related benefits; 5. Whether the Adjudicator acted lawfully in not giving reasons for his conclusions on rights or protections; 6. Whether the Adjudicator acted lawfully in failing to consider alternative sites for the proposed academy.[2]The application for judicial review is contested by the defendant. There are two interested parties, the London Diocesan Board of Schools ( the Diocesan Board), which is the sponsor of the Academy in question and which has taken no part in the litigation, and the Secretary of State for Education and Skills. The Secretary of State has submitted evidence and makes submissions. He adopts the case made by the Adjudicator in opposition to the application for judicial review. He also makes submissions in relation to three issues, two of which the claimant accepts arise for decision in this case and one which the claimant contends does not arise. The two contentions of the Secretary of State which do arise directly in this case are: first, that differences between the governance or regulatory arrangements respectively between Academies and maintained schools are not matters which a schools organisation committee or Adjudicator is obliged to take into account except to the extent that they impact on the quality of the Academy; and second, that Adjudicators have no power to make their approval of a closure proposal conditional on the inclusion in the Academy’s funding agreement of particular terms. The third issue which the Secretary of State raises is his contention that the Secretary of State’s model funding agreement for academies, on which both the draft and final agreements for the Academy replacing SMMPS are based, incorporate rights and protections for pupils and parents which are “broadly comparable” to those applicable in maintained schools. In the course of argument it became apparent that no one was arguing that I should embark on this exercise save to the extent that it may be relevant to consideration of the lawfulness of the Adjudicator’s decision.

The statutory framework

[3]SSMPS is a voluntary school within the maintained sector. Section 29 of the Schools Standards and Framework Act 1998 (the SSFA) provides for proposals for discontinuance of schools. Section 29(2) provides that, where the governing body of a voluntary school propose to discontinue the school, the governing body shall publish their proposals under this section. Schedule 6 of the SSFA provides for procedures for dealing with statutory proposals. Paragraph 3(1) of that schedule provides that proposals published under section 29 require approval under that paragraph if the proposals are published by a governing body. Sub-paragraph (2) provides that such proposals shall be considered in the first instance by “the relevant committee” elsewhere identified as the schools organisation committee. By sub-paragraph (6), if the committee has failed to reach a unanimous decision in respect of such a proposal then they are obliged to refer the proposals to the Adjudicator. Sub-paragraph (7) provides that, where any proposals are referred to the Adjudicator, he shall consider the proposals afresh and sub-paragraphs (2)-(4), other than sub-paragraph (2)(d), shall apply in connection with his decision just as they apply to the decision of the committee.[4]Sub-paragraphs (2)-(4) provide as follows: (2)“Where any proposals require approval under this paragraph, they shall be considered [by the adjudicator] who may –(a) reject the proposals,(b) approve them without modification,(c) approve them with such modifications as the [adjudicator] thinks desirable after consulting such persons or bodies as may be prescribed… (3) Any approval given under this paragraph may be expressed to take effect only if an event specified in the approval occurs by a date so specified; and regulations may prescribe the events may be so specified. (4) When deciding whether or not to give any approval under this paragraph the [adjudicator] shall have regard to – (a) any guidance given from time to time by the Secretary of State,… And the [adjudicator] shall not give any such approval unless [he is] satisfied that adequate financial resources will be available to enable the proposals to be implemented.”[5]The regulations referred to in sub-paragraph (3) above are the Education (Schools Organisation Proposals) (England) Regulations 1999 (the 1999 Regulations). In particular, paragraph 9 of the 1999 Regulations provides as follows:
“(1) The following events are prescribed for the purposes of paragraph (3) of schedule 6…which provides that approvals given under those paragraphs may be expressed to take effect only if an event specified in the approval occurs by a date so specified in relation to approval of proposals relating to a mainstream school”
There are then set out from (a) to (j) a series of events which include:
“(g) the making of any agreement under section 482(1) of the 1996 Act for the establishment of an academy, where the proposals in question provide for some or all of the pupils currently at the school which is the subject of the proposals to transfer to the academy;”
[6]Section 482 of the Education Act 1996 (the 1996 Act) provides the legal basis for establishing an Academy. Insofar as is relevant this section provides as follows:
“(1) The Secretary of State may enter into an agreement with any person under which – (a) that person undertakes to establish and maintain, and to carry on or to provide for the carrying on of, an independent school in England with the characteristics mentioned in sub-section (2) and such other characteristics as is specified in the agreement, and (b) the Secretary of State agrees to make payments to that person in consideration of those undertakings. (2) The characteristics mentioned above are that the school – (a) has a curriculum satisfying the requirements of section 78 of the Education Act 2002, but with an emphasis on a particular subject area, or particular subject areas, specified in the agreement, and (b) provides education for pupils of different abilities who are wholly or mainly drawn from the area in which the school is situated…. (4) An agreement under this section shall make any payments by the Secretary of State dependent on the fulfilment of – (a) conditions and requirements imposed for the purpose of securing that no charges made in respect of admission to or attendance at the school or, subject to such exceptions as may be specified in the agreement, in respect of education and provided at the school, and (b) such other conditions and requirements in relation to the school as are specified in the agreement. (5) A school to which an agreement under this section relates shall be known as an academy. ”
[7]Regulation 4 of the 1999 Regulations concerns information to be contained in published proposals. Sub-paragraph (2) provides that proposals published under section 29 must contain the information specified in part 1 of schedule 2 to the regulations together with - (c) the information specified in part IV of that schedule where the proposals are to discontinue a school. Paragraph 18 of schedule 2 falls within part IV of that schedule. It provides that information to be contained in published proposals to discontinue a school shall include “details of the schools…which pupils at the school for whom provision is to be discontinued may attend, including any interim arrangements”.[8]Regulation 6 of the 1999 Regulations concerns information to be sent to the schools organisation committee. This paragraph, by sub-paragraph (1) and (2), requires the information to include the information specified in part II of schedule 3 of the regulations and information under part V where the proposals are to discontinue a school. Paragraph 39 of schedule 3 falls within part V of that schedule. The information which is required to be included is “an assessment of the quality of any schools to which it is proposed that such pupils may transfer”.[9]The Secretary of State has issued statutory guidance on assessing proposals for closure of schools. In particular, paragraphs 23-26 concern Academies. Paragraph 25 of that guidance provides as follows:
“All statutory proposals for changes to maintained schools relating to the establishment of an academy should be considered together. If provision for pupils at a school proposed for closure is dependent on the establishment of an Academy, any approval of the closure proposals should be conditional upon the making of an agreement for an Academy, but there should be a general presumption in favour of approval.”
Paragraph 17 concerns proposals which will provide additional places. That was not the case with this proposal. Paragraph 45 requires decision makers to consider the views of all those affected or interested parties which include parents and pupils. Section 2.2 sets out in summary form factors to be taken into account in a list which is expressed to be non exhaustive. They include a clutch of factors concerning the effect of the proposals on standards. In particular, “whether the proposals will improve the standards, quality, range and/or diversity of educational provision in the area” and “the standard of education in existing and proposed alternative provision and whether the alternative provision will be able to maintain or enhance the standards of education provision.” The facts[10]SMMPS is a voluntary school within the London Borough of Islington. It is a successful and popular primary school scoring higher than local and national averages in the 2004 and 2005 league tables and achieving “ a very good” rating at its last Ofsted inspection. By notice dated 17 February 2005 the governing body of the school published a proposal to discontinue the school from 31 August 2007. This was part of a larger plan by the Diocesan Board to establish a new academy catering for children aged 4 to 19.[11]There were objections to these proposals. The proposals were considered by the schools organisation committee which failed to reach a unanimous decision. The matter was referred to the Schools Adjudicator. Initially it was the Chief Schools Adjudicator who considered the matter. He decided to approve the proposals subject to conditions including the obtaining of planning permission by a specified date. As planning permission was not obtained by that date, the proposal was considered afresh by a different Adjudicator. The representations which form the basis of the grounds of complaint presently advanced were not before the Chief Schools Adjudicator as part of the original objections.[12]The Adjudicator considered the proposal afresh. He considered all objections and representations including those made by solicitors on behalf of the claimant contained in letters dated 20 January 2006 and 22 February 2006 which raised the points which, in substance, form the claim for judicial review.[13]I now deal with that correspondence in a little detail. The first letter before me is a letter of 21 December 2005 from the Adjudicator to the claimant’s solicitors in response to a letter of 20 December. In that letter the Adjudicator recognises that views about the features and qualities of the proposed replacement school will be material to his consideration of the proposed discontinuance and states that he is happy to take representations on the issue. On 6 January 2006 the solicitors for the Diocesan Board wrote to the claimant’s solicitors enclosing a number of documents including the draft funding agreement. In that letter they say as follows:
“ We must emphasise that, with the exception of the memorandum articles of association, these documents currently only represent proposals which the sponsor has put to the Secretary of State and therefore they are not necessarily in the form that will represent the signed funding agreement should the proposals be approved.”
The claimant relies on this letter as evidencing that the Adjudicator did not have, nor could he have considered that he had, the final terms of the proposed agreement when he gave his adjudication.[14]On 20 January 2006 the claimant’s solicitor wrote a six page letter containing their representations to the Adjudicator. That letter makes a number of points. First it makes the point that, until the agreement is in its final form the Adjudicator could not properly exercise his discretion concerning the discontinuance of SMMPS. Second it asserts that in order to approve the closure the Adjudicator would need to be satisfied “at a minimum that the replacement provision is adequate in terms of not only educational standards but also the rights and protections extended to parents and pupils”. In this connection the writer cites the ECHR, which is no longer being relied upon. The solicitors go on to explain that this particular adjudication is different from the norm in that the proposed alternative is not another maintained school, where the rights and protections of the pupils and parents would, in effect, be the same, but an Academy where the terms of the funding agreement are crucial. In that regard it raises a number of concerns including – the make up of the governing body, the arrangements for special educational needs, the provisions in respect of exclusions and appeals in respect of exclusions, and the absence of an equivalent right of complaint to the LEA. It concludes that, given that those matters flow from the terms of the funding agreement, the Adjudicator could not properly conclude that rights and protections were properly maintained. Furthermore concerns are raised that, in relation to the negotiation of the funding agreement and the establishment of the Academy the correct statutory processes had not been followed. It also raised as an issue that there are a variety of alternative sites for a new Academy in Islington not requiring the closure of a school which is by no means a failing school. In so doing they expressly associated themselves with representations made by two other persons one of whom was Meg Howarth.[15]On 29 January 2006 the Diocesan Board wrote a six page response which includes a passage dealing with the status of the funding agreement. In this letter the Diocesan Board sets out its understanding of the current arrangements in relation to funding agreements in the following terms:
“Contrary to what is stated in the letter there is a standard model funding agreement which the academy trust must adhere to. This model agreement enshrines the core principles and policies of the national academy programme and ensures that these are adopted consistently across every academy project. Because of this, the DfES informs each sponsor that they can only make amendments that deviate from the model under exceptional circumstances. All funding agreements are strictly monitored by the department. For any change to the model, a sponsor must submit a form containing the intended variations which is then scrutinised by the academy’s policy team and departmental lawyers. If the variation conflicts with the core principles and policies of the national programme it is rejected….we adhere very closely indeed to the DfES model, the only deviations being to recognise the “all age” nature of the proposed academy and its Church of England character. You have been sent details of the funding agreement…including details of the annexes relating to the curriculum, SEN and behaviour. I can confirm on behalf of the sponsors that there are no proposals or discussions to vary the funding agreement in respect of St Mary Magdalene Academy. The only additions to the funding agreement that are outstanding relate to the total capital costs agreed to by all parties and the phasing of those costs. In all other respects therefore the details of the funding agreement already supplied to the Adjudicator will not change.”
The letter then sets out the Diocesan Board’s contentions in relation to the issues of: governing body composition; SEN; exclusions; and parental complaints. It also deals with the point about LEA statutory procedures which the claimant’s solicitors had raised.[16]On 22 February 2006 the claimant’s solicitors wrote a further six page letter in response. They explained that, by the contention that the Adjudicator must consider the funding agreement in its final form, they did not necessarily mean that the agreement should be signed but rather that the Adjudicator should require a written assurance from the Secretary of State and the Academy that the agreement would be signed in that form. Further, it would be open to the Adjudicator to make any approval of closure conditional upon the funding agreement containing certain clauses. The solicitors maintained their client’s opposition on the ground that the current agreement was not in its final form. The letter also contains further submissions in relation to SEN arrangements, exclusions and the alleged failure by the LEA to comply with statutory notice requirements.[17]The Adjudicator also received a petition from the parents of SMMPS pointing out that they were in favour of a Church of England secondary school in Islington on one of the other, known to be available, school sites. In neither the claimant’s solicitors’ letter of 20 January, nor the petition, was the location of these sites alternative indicated but the e-mail from Meg Howarth dated 13 January 2006 identified two alternative sites.[18]The Adjudicator’s determination was dated 6 March 2006. It was in the following terms:
“ I hereby approve the proposal to discontinue the SMMPS with effect from 31 August 2007, provided only that the promoters of the proposed St Mary Magdalene Academy (SMMA) and the Secretary of State for Education and Skills conclude a binding agreement to proceed with the academy by 30 June 2006.”
[19]In paragraphs 7-14 the Adjudicator set out the procedures he had adopted highlighting the breadth of views canvassed as well as the different steps he took to inform himself. In paragraphs 16-17 he set out the context including the fact that the Secretary of State and the promoters expected to reach agreement by June 2006. In Paragraph 17 he recorded that, though the adjudication relates specifically to the proposals to close SMMPS, he had received many representations on the merits of Academies in general and this proposed Academy in particular. He recognised that some of the comments on these wider issues were relevant, but only if they had a bearing on the appropriateness of discontinuing the school. He confirmed that he had taken them into account where that was the case. The claimant and the Secretary of State agree that they can find nothing to criticise in this statement of his approach.[20]In paragraphs 18 to 20, he summarised the arguments for the proposal. He recorded that the governors’ arguments were endorsed by the Borough Council and the Diocesan Board. Those arguments were that the Academy would enhance the current high standards achieved by primary age children by providing new, purpose designed, buildings which will be superior to those of the existing school and by giving those pupils access to some of the specialist facilities planned for the Academy. He recorded that the supporters of the proposal argue that the quality of the school will be secured by incorporation into the Academy since this would facilitate recruitment into leadership positions and provide a more robust management infrastructure. In paragraph 19 of the decision he states that the governors considered that the interests of primary aged pupils in the Academy would be secured through the arrangements proposed for the leadership and governance of the Academy.[21]The Adjudicator summarised the various objections at paragraphs 21 to 28. In paragraph 29 he referred himself to the statutory guidance and, in particular, to the presumption in favour of approval. He stated that he was obliged to have regard to the guidance but not obliged to follow it in all circumstances. He indicated that he would, in general, expect to have (and to be able to demonstrate) good reasons to deviate from the guidance if he considered it appropriate to do so in a particular instance.[22]The Adjudicator then addressed Standards. He considered this fundamental issue between paragraphs 30 and 37 of his decision. He recorded in paragraph 30 that the standards achieved by pupils at the school were already very high and cites the evidence in support of that. He recorded that the proposers argued that the proposed Academy will enhance standards in the ways already referred to. In paragraph 31 he dealt with his conclusions in respect of the buildings, in 32 he dealt with his conclusions on the “all through age range” of the proposed Academy. In 33 he dealt with the site for the new building and in paragraph 34 he said as follows:
“I cannot accept that innotive proposals are bound to put at risk the quality of what is achieved in the present organisation. Indeed, it seems to me that, although this development is novel, the terms of the draft agreement between the promoters and the Secretary of State…will require the governors and principal of the academy to work within a framework and policies of accountability designed to ensure that quality is maintained and innovation carefully regulated.”
In paragraph 37 he stated as follows:
“Overall I am persuaded that nothing in these proposals should have a detrimental effect on standards. Indeed, I judge that the new accommodation and opportunities for professional collaboration and social development within the proposed academy are likely to contribute to improvements in the qualities of learning and teaching and thus in standards of attainment and behaviour.”
[23]In paragraphs 38 and 39 he dealt with matters of finance. He recorded that the promoters have given undertakings to the effect that no fewer resources will be allocated to the education of primary age pupils in the Academy than would have been allocated to the School by the Council. He said that he had no doubt about the good faith and determination of the promoters in giving undertakings about the equitable allocation of resources. He recorded that this is given force by the draft funding agreement developed in accordance with the government’s general policy on the funding of academies. This confirms that the Academy will be funded at least as well as other schools in Islington. He said that, although the funding agreement is in draft, he had no reason to doubt that the agreed version will reflect that policy, as does the draft which he had seen.[24]In paragraphs 40 to 44 he dealt with special educational needs. In paragraph 41 he recorded that this school has well developed policies and practice to meet the needs of children with SEN. In paragraph 42 he recorded that the governors have been determined to ensure that the promoters of the Academy adopt policies which will protect and enhance existing practice in respect of inclusion. He recorded that they have secured an undertaking that the admission criteria for the primary section of the Academy will be substantially the same as it was for the existing school and that pupils of the primary section of the Academy will transfer as of right to the secondary section at the age of 11. The claimant points out that the governors will cease to exist as a result of the Adjudicator’s decision and that there is no direct means for enforcing such an undertaking.[25]In paragraph 43 the Adjudicator recorded that the policies set out by the promoters, reflected in the draft funding agreement, demonstrate a determination to build on the excellent practice of the school. In paragraph 44 he said as follows:
“I judge that the proposal is likely to lead to some improvements in the already very inclusive practices of the school.”
[26]In paragraphs 46 to 50 the Adjudicator dealt with community cohesion. He concluded in paragraph 50:
“I judge that the commitments made for the Academy as regards community cohesion as set out in the draft funding agreement represent the extension of the current exemplary practice of the primary school.”
[27]In paragraphs 53 to 55 he recorded the views of parents and other interested parties expressed in the form of a consultation exercise which, given the differences in opinion, he did not regard as decisive.[28]In paragraphs 58 to 60 he dealt with “procedural and legal questions”. In essence this is the passage where he dealt with the matters raised by the claimant.[29]In paragraph 58 he dealt with the argument about the alleged deficiencies in the decision making procedures. He recorded that these issues lie outside his jurisdiction. He said that, if it were established that errors have been made so that the Secretary of State cannot lawfully enter into a funding agreement, then the condition which he has imposed for approving the proposal will not have been fulfilled. No challenge has been made in respect of the Secretary of State’s powers to enter into such funding agreement. Nonetheless, the Adjudicator has fully catered for this argument by imposing the condition which he did.[30]In paragraph 59 he dealt with the main thrust of the arguments made by the claimants. The first was the suggestion that it was not open to him to agree to the proposal without being able to take into account the terms of the funding agreement in its final form. He rejected this contention. The claimant does not take issue with this conclusion. He then dealt with the point that it is open to him to give approval, conditional on the inclusion in the funding agreement of particular terms. He rejected that contention. This is an issue for determination in this case. He then dealt with the arguments that the agreement will not provide adequate resources and protections. He says “I have no reason to believe that the agreement will not provide adequate resources and protections. I am reinforced in this view both by the general policies adopted by the Secretary of State on these matters and by the draft of the funding agreement which I have seen.” This passage is at the heart of a number of the issues for determination in this case.[31]In paragraph 60 he dealt with the argument that, because the instrument and articles of government for the Academy will be different from those of SMMPS, that this will undermine the rights of parents and pupils or lead to differential treatment to the extent that there will be a breach of their rights under the ECHR. He stated that he accepts the proposed arrangements will be different but does not accept that such differences would constitute a breach of the ECHR. This is an argument which is no longer being pursued by the claimants.[32]In paragraph 61 he sets out his conclusion in the following terms:
“St Mary Magdalene CE Primary School is an exceptionally good school in several respects. It enjoys a high reputation in the local community and is very well regarded by the parents in particular. It is not surprising that a significant number of people have expressed concern about changes which could put at risk the maintenance of this valuable community resource. I have, however, concluded that the governors have made the proposal to discontinue their school following a very careful and thoughtful assessment of the options for the future, and have taken every care to ensure that the standards which the school has achieved will be protected and enhanced in the proposed new organisation. My examination of the evidence and views submitted to me and summarised above has on balance persuaded me that they are right in that judgment. I have found no good reason to depart from the presumption that approval should be granted. I approve their proposal.”

Conclusions on the grounds of challenge

[33]I first consider whether the Adjudicator acted lawfully in approving the discontinuance by reference to a draft funding agreement without requiring the final agreement to be as the draft. It is not argued that the Adjudicator was required to wait until a funding agreement had been made before deciding whether or not to approve the discontinuance of the school. Such an argument is precluded by the combined operation of schedule 6 paragraph 3(3) of the SSFA and paragraph 9(1)(g) of the 1999 Regulations. The Adjudicator has explicit power to give approval expressed to take effect only if an event specified occurs by a date specified. One such event is the making of any agreement under section 482(1) of the establishment of an academy. In the light of these provisions it is agreed that the Adjudicator must be able to approve a discontinuance in advance of such an agreement being made.[34]The claimant’s case is that the Adjudicator had the power to insist on the funding agreement being in a specific form, either as per the draft before him, or containing specific provisions, dealing, for example, with safeguarding the rights and protections of parents and pupils in various respects. In my judgment the Adjudicator has no power to impose such a condition. The power of the Adjudicator is limited to giving approval expressed to take effect only if an event specified occurs by a specified date. The events, the occurrence of which may be specified as a condition for approval taking effect, are compendiously set out in regulation 9. The only relevant one is “the making of any agreement under section 482(1) of the 1996 Act”. There is no power to require that the agreement be anything other than an “agreement under section 482(1)”. There is no power to insist on such an agreement containing particular terms or being in a particular form. The legislator could have included such a power. It might have been thought to be one way of ensuring that the Secretary of State and the promoters did not, after the approval of the discontinuance, change the funding agreement so as adversely to affect the maintenance or enhancement of standards. The legislator did not, however, choose to deal with it in this way. It gave the Adjudicator the function of exercising judgment as to whether the draft agreement would maintain or enhance standards and, no doubt, exercising his judgment as to the likelihood of the draft being changed after approval and before it was formally agreed in such a way as would cut across his judgment in granting approval .[35]In this case the claimant explicitly raised the point with the Adjudicator that the draft agreement might subsequently be changed. To some extent they had grounds for that belief because of the letter of 21 December 2005, referred to above, in which the possibility of change is expressly stated. However, by the time the Adjudicator came to take his decision, he had the very clear statement of the Diocesan Board: that the draft agreement very closely followed a model agreement produced by the DfES; that there was a rigorous procedure to be followed if promoters intended to depart from the model; that in all material respects the draft agreement did follow the model; and giving the explicit undertaking that, save to the limited extent referred to in the letter, the draft would not change. In my judgment the Adjudicator was obliged to consider the extent to which he could rely on these assurances and undertakings. He did so and came to a conclusion that he could. This was a conclusion to which, in my judgment, he was entitled to come.[36]I reject the contention that the Adjudicator has imposed a condition as to the content of the funding agreement by stating who the parties to the agreement must be. What he is asked to do is to consider whether or not to approve a discontinuance. He may impose a condition that it does not take effect unless an agreement is made by a particular date. By saying who the parties are to be to that agreement he is not specifying what the terms of the agreement should be.[37]In my judgment, therefore, this particular ground of challenge fails. That deals with the first two issues raised by the claimant and summarised above as well as the second issue raised by the Secretary of State.[38]I now turn to the question whether the Adjudicator, in deciding whether or not to approve the discontinuance, needed to consider whether there were reductions in rights and protections of children and their parents when comparing the maintained school being discontinued with the Academy which was to replace it and, if so, whether those reductions are justified by relevant benefits. This involves consideration of the issue raised by the Secretary of State that differences between the respective governance or regulatory arrangements of academies and maintained schools are not matters which a schools organisation committee or Adjudicator is obliged to take into account except to the extent that they impact on the quality of the Academy.[39]There has been a somewhat arid debate between the Secretary of State and the claimant as to what the word “quality” refers to. The Secretary of State contends that it is limited to whether something is good or bad whereas the claimant contends that it refers to a wider concept namely the essence of the thing described. I describe it as somewhat arid because paragraph 4 of the 1999 Regulations requires information to be contained in the published proposals including “details of the schools which at the school for whom provision is to be discontinued may attend” (paragraph 18 of schedule 2) and paragraph 6 requires information to be sent to the school’s organisation committee including “an assessment of the quality of any schools to which it is proposed such pupils may transfer”) (paragraph 39 of schedule 3). The guidance given to decision makers to which they must have regard in section 2.2 requires the Adjudicator to have regard to whether the proposals will improve the “standards, quality and range and/or diversity of educational provision in the area” as well as “the standards of education in existing and proposed alternative provision”.[40]In my judgment, in the context of these regulations, the word “quality” has the more limited meaning argued for by the Secretary of State. On the other hand the word “details” requires information to be placed before the Adjudicator concerning the detailed arrangements for governance and regulation of the school which is to replace that which is proposed to be discontinued. All that information falls to be considered by the Adjudicator in conducting his assessment of the proposals and, in particular, doing so having regard to the effect of the proposal on standards, quality, range and/or diversity of educational provision. As I have indicated above, the way in which representations concerning the details of the governance of the school and the regulatory arrangements were dealt with by the Adjudicator in paragraph 17 of his decision has not been criticised by any party to this litigation. He recognised that representations on these issues would be relevant if they had a bearing on the appropriateness of discontinuing this school and he says that he took them into account where that was the case.[41]It is important to bear in mind that the subject of this judicial review is the Adjudicator’s decision. That was a decision taken in the light of representations which were made to him. Insofar as is relevant those representations were contained in the two solicitors’ letters to which I have already referred. The first of those letters put the matter most succinctly in the following way:
“In order to approve the closure you would still need to be satisfied, at a minimum, that the replacement provision (here the academy) is adequate in terms of not only educational standards but also the rights and protections extended to parents and pupils.”
That was the way the issue was raised by the claimant at that stage. In my judgment it misstates the issue, but only marginally. The rights and protections extended to parents and pupils at the Academy were relevant to the Adjudicator’s decision, but only in the context of his consideration whether to approve the discontinuance of the SMMPS having regard to whether the proposals will improve the standards, quality, range and/or diversity of educational provision in the area.[42]I agree with the submission of the Secretary of State that the policy context in which the Adjudicator operates is the recognition and encouragement of a diversity of education provision. This is inimical to the concept of “gold standard” arrangements any departure from which has to be justified. On the other hand, differences in arrangements for governance and regulation of a school intended to replace a school proposed for discontinuance may be relevant insofar as they may impact on the factors to which the Adjudicator has to have regard.[43]The claimant, through her solicitor, raised a number of specific issues where it was said the provisions for governance and regulation of the academy were different to those at the maintained SMMPS. They can be summarised as follows:(a) The governing body: under the maintained system the number of governors who were parents was always one third; the Academy had a governing body where, potentially, one only of the governors would be a parent;(b) Complaints: the lack, for parents of children at the Academy of an external complaints procedure, the only external sanction being the power of the Secretary of State to terminate the funding agreement; in the maintained sector there is a statutory complaints procedure which includes the ability to refer a complaint to the local government ombudsman and/or to the Secretary of State who has the power to give a focussed direction to a governing body;(c) SEN: in the maintained sector a decision by an LEA to name a school in a statement of special educational needs, after a decision of the SENDIST, imposes a direct statutory obligation on the governors of the school to admit a child; under the funding agreement the Academy’s obligation to admit such a child is subject to an exception where admitting the child would be incompatible with the provision of efficient education for other children and where no reasonable steps may be made to secure compatibility. If this is disputed, the Academy may ask the Secretary of State to determine whether the school should be named by the LEA and the Secretary of State’s determination shall be final;(d) Exclusions: The appeal arrangements in the maintained sector require the LEA to arrange for an appeal panel which is wholly independent. The panel is subject to detailed guidance on how to conduct appeals. The LEA is subject to detailed statutory regulation; the governing body of the Academy, whilst under the same duty to appoint an independent appeal panel by virtue of its funding agreement, is not further subject to statutory regulation, nor is the appeal panel subject to any statutory guidance on how it is to proceed;(e) Religious instruction and observance: there is potential for differential provisions relating to withdrawal from religious instruction or religious observance as between the maintained sector, where there is an absolute right to withdrawal established by statute, and the Academy sector where in some cases there is no such right. This point does not apply to this Academy because the funding agreement replicates and refers to the statutory rights to withdraw;(f) Enforcement: the child or parent at a maintained school has direct recourse to law by virtue of their rights and protections being founded in statute; the parents and children at the Academy have no such directly enforceable statutory rights, they are non parties to a contract between the Secretary of State and the promoters of the Academy and are dependent on a Court accepting jurisdiction to review the actions of the Academy as a public body on such public law grounds as may apply to the individual case.[44]The claimant argues that, save in respect of the lack of a complaint to the local government ombudsman, the provisions in the funding agreement, or their absence, concerning the composition of the governing body, complaints, SEN, and exclusions together with the difference between direct enforcement of statutory rights and indirect enforcement of someone else’s contract constitute differences which are significant, are particular to this agreement and, at the least, should have been grappled with by the Adjudicator and explicitly informed his decision on discontinuance as affecting the question whether the proposals will improve the standards, quality, range and/or diversity of educational provision in the area.[45]The Secretary of State argues that the points in relation to the governing body, the contractual nature of the arrangements, and complaints are all inherent in the statutory scheme and were not for the Adjudicator to consider. The Secretary of State accepts that there is a difference in complaints in that the Secretary of State may give a specific direction in the maintained sector whereas this funding agreement only gives the power to terminate, or threaten to terminate the funding agreement.[46]SEN: the Secretary of State says that, whilst there is a potential additional hurdle under the funding agreement, this difference is of marginal significance. SENDIST will either have taken into account the arguments, reflected in the exception, with the result that the Secretary of State is highly unlikely to come to a contrary view or, if the Academy hadn’t raised these arguments before the SENDIST, they are unlikely to receive a sympathetic consideration from the Secretary of State.[47]Exclusions: the Secretary of State points out that the requirements for securing independence of appeal panels is identical in the maintained sector and this Academy. Furthermore, in each case the appeals body is obliged to comply with fundamental standards of fairness which, in the maintained sector, is given a form of expression in the regulations and detailed guidance to which the appeals body has to have regard but which are left implicit by the funding agreement.[48]The Secretary of State contends that the Adjudicator, in concluding as he did when dealing with these representations in paragraph 59 that: “I have no reason to believe that the agreement will not provide adequate resources and protections. I am reinforced in this view both by the general policies adopted by the Secretary of State on these matters and by the draft of the funding agreement which I have seen.” came to a decision on these matters to which he was entitled to come. It is pointed out by Counsel for the Adjudicator and by the Secretary of State that the terms of the Adjudicator’s conclusion reflects the decision to which the claimant’s solicitor required the Adjudicator to come namely that he had to be satisfied that the replacement provision was “adequate in terms of educational standards and the rights and protections extended to parents and pupils”.[49]In my judgment, if this was the issue to which the Adjudicator was addressing himself in that passage, then he addressed it properly and the conclusion to which he came was one which was open to him.[50]I reject the contention of the claimant that the maintained sector constitutes a gold standard and that any falling away from that standard requires justification failing which approval for discontinuance should not flow. I accept the contention of the Secretary of State that the statutory scheme recognises and encourages diversity of provision. I agree with the contention of the Adjudicator that the question for the Adjudicator was not whether the proposed arrangements for governance and regulation were different from the maintained sector so as to require justification. The question for the court is to decide whether the Adjudicator was entitled to conclude, having considered the proposed arrangements for governance and regulation and the level of protection which they would give to parents and pupils, along with all the other elements in the funding agreement and all the other circumstances, that “on balance” the standards which the school has achieved will be protected and enhanced in the proposed new organisation and that in such circumstances there was no good reason to depart from the presumption that approval should be granted. I have concluded that he was entitled to come to that conclusion and so this basis for challenge fails[51]I now turn to the next two issues raised by the claimant namely whether the Adjudicator acted lawfully in reaching a conclusion on rights and protections without identifying the reductions he was considering or identifying any related benefits; and whether the Adjudicator acted lawfully in not giving reasons for his conclusions on rights or protections.[52]These two issues really run together and concern the adequacy of the reasons given by the Adjudicator. They focus on paragraphs 58 to 61 of the decision. It is common ground that the Adjudicator is obliged to give reasons by virtue of section 10 of the Tribunals and Inquiries Act 1992. It is also common ground that the reasons to be given must comply with the strictures of the House of Lords in South Bucks DC v Porter (No 2) (2004) UKHL 33 at para 36 in the speech of Lord Brown of Eaton-under-Heywood who said as follows:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration.”
[53]In considering the claimant’s submission it is important to bear in mind that the Adjudicator was not adjudicating on a dispute between two specific parties. Rather, he was considering whether to approve a proposal for discontinuance of a school made by the governing body. In so doing he was obliged to, and did, consult widely and in various ways as described in his decision. He received the views of a significant number of interested parties both organisational and individual. The representations made by the claimant, a particular parent, though no doubt of importance to her were simply one of a significant number of contributions to a wide ranging debate involving many different points of view and perceptions.[54]It is notable that the representations made by the claimant, through her solicitors, were the subject of a specific part of the decision under a specific heading. The claimant had raised a number of issues. She asserted procedural defects concerning the establishment of the academy. She asserted that the changes in the arrangements for governance and regulation were in breach of the European Convention on Human Rights. Neither of these contentions has been canvassed by the claimant in this Court though each of them was the subject of a specific decision by the Adjudicator. In paragraph 59 of the decision the Adjudicator dealt with a number of arguments raised by the claimant. He rejected the contention that he needed to wait to see the final agreement before considering whether to approve the discontinuance of the school. He rejected the contention that he was empowered to impose a condition that the funding agreement should contain particular terms. In the passage to which I have referred above he refers to the argument that he could not be satisfied that “at a minimum the replacement provision is adequate in terms of not only educational standards but also the rights and protections extended to parents and pupils”. He did so in terms which replicate that issue as expressed by the claimant’s solicitors. It is plain, in my judgment that, when referring to the protections, he is referring to the various ways in which it was being contended that parents’ and pupils’ rights and protections were being diminished. He indicated that he had no reason to believe that the agreement would not provide adequate resources or protections. He said that he was reinforced in that view by the general policies of the Secretary of State on these matters and by the draft of the funding agreement. It is plain, in my judgment, that by the phrase “on these matters” he is referring implicitly to the various matters raised by the claimant through her solicitors as being matters where protections were, on her view, being eroded. Whilst it is true that the Adjudicator did not engage in a point by point analysis of the arguments set out by the claimant’s solicitors, the counter arguments set out by the Diocesan Board, and the response to those arguments by the claimant’s solicitors, in my judgment his obligation to give reasons by no means required him to do so. It is plain what issues he was addressing. It was plain what test he was applying, it was that which was asserted by the claimant’s solicitors. It is plain what decision he has come to on the issue of protections and it is plain what he has relied upon in coming to that decision.[55]Furthermore, in summarising, in paragraph 61, his conclusions he acknowledges that the decision which he has taken is one which was taken “on balance”. He implicitly recognises that there were countervailing arguments of some merit but that, having taken them into account, he was persuaded that the standards which the school had achieved will be protected and enhanced in the proposed new organisation. He indicated, as was the case, that there was a presumption and that he could see no good reason to depart from it.[56]I am satisfied, therefore, that the Adjudicator’s reasons satisfy the requirements as described by Lord Brown in the South Bucks case. Accordingly the claim on this ground fails.[57]Finally, I deal with the argument that the Adjudicator acted unlawfully in failing to consider alternative sites for the proposed Academy.[58]As Mr Lewis, counsel for the Adjudicator, pointed out, the Adjudicator was not tasked with reaching a decision on the establishment of the Academy. Had he been so, then it may be that the question of siting would have been a matter of some importance. The Adjudicator was tasked with deciding whether or not to approve a proposal of the governing body of SMMPS to discontinue the school in the context that alternative provision was to be made as part of the Academy. As I have already indicated, the crucial factor to be considered by the Adjudicator was whether the proposals would improve the standards, quality, range and/or diversity of educational provision in the area. There was before the Adjudicator a suggestion by Meg Howarth that there were alternative sites which could be used to establish an Academy other than by closing SMMPS and incorporating it in an Academy. Whether or not the Adjudicator was obliged not to consider this suggestion because it was outside his remit, as the Secretary of State contends, in my judgment he was entitled to give it little or no weight. His main task was to assess whether the quality of the educational provision in the event of discontinuance being approved would be maintained or enhanced. His judgment, having taken into account all the relevant factors, was that the educational provision would be not only maintained but enhanced by approving the discontinuance on condition that the funding agreement for establishment of the Academy was made. In my judgment it would be barely, if at all, material whether there were other sites where an academy could be opened leaving the existing school to carry on. That was not the proposal which was before him. In my judgment, having come to the view, which he did, that discontinuance would not only maintain but would enhance the quality of educational provision it would have been perverse on his part to have refused to approve the discontinuance because one individual, with the support of two others, had suggested two alternative sites where she asserted an academy could be established. In my judgment the Adjudicator cannot be criticised for failing to mention this argument in his decision.[59]For the reasons set out above this application for judicial review fails and is dismissed. MR JUSTICE WILKIE: For the reasons set out in the approved judgment handed down this morning this application for judicial review is refused. MISS HETHERINGTON: My Lord, thank you. My understanding is that neither the respondent nor the interested party seek costs against the claimants. I would request there be order for detailed assessment of the claimant's costs of legal service funding. Also in respect of the two former claimants, that there be detailed assessment of their costs for the periods during which they were covered by certificate, and I believe certificates are on file. MR JUSTICE WILKIE: I will order that, yes. MISS HETHERINGTON: The only other matter in respect of costs is that the claimant does seek an order for costs against the interested party, the Secretary of State, limited to the costs incurred by her in responding to the witness statement of Keith (inaudible). That witness statement which is 14 pages with some 26 pages of exhibits raise much wider points in relation to academies in general, as I am sure my Lord will remember. MR JUSTICE WILKIE: Yes. MISS HETHERINGTON: And in fact it was not relied upon by the Secretary of State in the end, he having resiled from any contention that he was asking you to give any broader guidance in terms of broad comparability and the model funding agreement. There were, for example, statistics on the performance of academies policy rationale behind academies in general, statistics on special educational needs admissions and evidence of the implication of the claimant's case in the process of setting up academies, none of which was relied on either by the Secretary of State or by yourself in your judgment. The claimant had to respond to that witness statement, as many of the assertions were controversial and incurred not insignificant time and costs in doing so. Therefore we seek an order that the Secretary of State pay the claimant's costs so far as those were incurred in responding to that witness statement. MR CHAMBERLAIN: My Lord, I would resist that order on the following basis. The reason why the Secretary of State put in evidence was because it was a central plank of the claimant's case that the differences between the protections available in academies and those available within the maintain sector were highly significant and material, and what that witness statement did in large part was respond by saying "We don't think they are so significant, here is why." Your Lordship may remember that on the first morning of the hearing Mr Wolfe, for the claimant, made the point that there were matters that were contained in the Secretary of State's witness statement with went beyond the matters which the court had to deal with, and I popped up, I hope not out of turn, to say that if the claimant was not going to pursue his point on the significance of the differences then we could simply put those points aside. And Mr Wolfe was not able at that stage to concede -- I say at that stage, even on the first morning of the hearing, to concede that those points were relevant. He was not able to withdraw his submission that the differences were highly material and significant and so we had to go through the differences one by one to see how material or significant they were. And that, with respect, my Lord, was relevant to your Lordship's judgment because it was relevant to the question whether the adjudicator was right to say that the protections in the academies are adequate. It was relevant in that respect and to that extent. So with respect, my Lord, I would say that the Secretary of State acted wholly properly. I am not seeking costs from anyone else, although given that the claimant had lost --- MR JUSTICE WILKIE: You are not seeking them. MR CHAMBERLAIN: We are not seeking them, it would have been open to me to at least do so, subject to certain points made in the Boulton case and other cases. I am not seeking them, and I say it was wholly appropriate for the Secretary of State to put in background evidence, given the way the claim was put. Unless I can assist further, my Lord, that is my submission. MR JUSTICE WILKIE: Do you have any response to that? MISS HETHERINGTON: My Lord, you have my submissions on this. We say that the statement raised wider issues than those that were in play. MR JUSTICE WILKIE: I am not going to make the Secretary of State pay any of the claimant's costs of the issues to which I have just been referred, but I will make it clear that the affidavit of Mr (inaudible), which responded to those points was an affidavit which both its facts and its contents were reasonably prepared, so that there should be no question of the costs of that not being reflected in the detailed assessment.

Cited in 1 later judgment