The Queen on the application of BUCKINGHAMSHIRE COUNTY COUNCIL v THE SCHOOL ADMISSIONS INDEPENDENT APPEAL PANEL FOR BUCKINGHAMSHIRE [2009] EWHC 1679 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2009] EWHC 1679 (Admin)Case No Case No: CO/4648/2009Venue Royal Courts of Justice Strand,, London. WC2A 2LL
Between
The Queen on the application of BUCKINGHAMSHIRE COUNTY COUNCILClaimantTHE SCHOOL ADMISSIONS INDEPENDENT APPEAL PANEL FOR BUCKINGHAMSHIREDefendant1. SPINFIELD SCHOOL 2. LK, 3. JP, 4. RS, 5. GP, 6. JBInterestedParties
Before
Mr Justice BlakeJ.R. McManus QC and Sarah Hannett (instructed by Buckinghamshire CountyCouncil) for the ClaimantPeter Oldham (instructed by Oxfordshire County Council) for the DefendantHearing dates: 25 & 26 June 2009
[1]This is an application for judicial review by the claimant County Council of five decisions of the defendant independent appeal panel for Buckinghamshire (the panel) dated 6 th May 2009 deciding appeals by the second to sixth interested parties who were seeking a school place with the first interested party for the academic year commencing in September 2009.[2]Following directions given earlier by the court, this is a rolled up application for permission and, if permission is granted, the substantive hearing of the application for judicial review. At the conclusion of proceedings on the 26 June 2009 I indicated that I was refusing permission to judicially review the panel's decisions in respect of the fifth and sixth interested party; granted permission in respect of the decisions concerned with the second to fourth interested party and granted relief setting aside those decisions and directing reconsideration in accordance with the terms of this judgment. I now give the reasons for that decision.[3]As the subject matter of the claim concerns the admission of children into a primary school, I have directed that the parents of the children be referred to only by initial and that no report of these proceedings shall identify the children by name or address. The background to the application[4]Spinfield School is a combined school located on the edge of the town of Marlow in the county of Buckinghamshire. The second to fourth interested parties are all families who live in the catchment area of Spinfield School but about a mile away to the north-west of the school in the rural part of Marlow. The claimant is the education authority responsible for the admission arrangements to schools in the area. In 2008 the three interested parties with whom this claim is now concerned identified Spinfield School as the school they would prefer their children to attend. The school was over-subscribed. On the 17 February 2009 officers of the claimant informed the parents that their applications for Spinfield School had been unsuccessful. Each appealed to the defendant panel. A detailed argument was made or adopted by all three appellants to the effect that the admission arrangements for the school did not comply with the School Admissions Code issued in 2007 (the 2007 Code).[5]The parents claimed that the arrangements were in breach of paragraph 1.65 of the 2007 Code in that they did not ensure that the practices and criteria used to decide the allocation of school places were equitable for all groups of children. The submission was that the use of the criterion of distance from the child's home to the school as the tie-breaker in the case of over-subscription pure distance criteria privileged those who lived near to where the schools were and afforded them a choice, and disadvantaged those who lived in the rural hinterland of the catchment area who were effectively denied a fair opportunity of having their preferences acceded to in the event of over-subscription. A panel consisting of members experienced in school admission appeals accepted those submissions. The panel further concluded that the appeals should be allowed because if an admissions procedure in accordance with the 2007 Code had been adopted which was equitable for all groups of children, the children in question would have been offered places.[6]It is relevant here to note that the panel reached separate decisions in respect of the fourth and fifth interested parties. In the case of the fourth interested party the panel concluded that it could not be satisfied that, even if a fair procedure had been adopted, an offer would have been made to the child and so dismissed the appeal. In respect of the fifth interested party the issue was not concerned with distance but simply whether it had been reasonable for the claimant to refuse a place to the child who had applied late for admission to Spinfield School through circumstances beyond the control of the family where a vulnerable child had only been allocated to the family's care late in the time allotted for school applications. As these were free-standing decisions, to which there were no independent challenges maintained by the claimant or anybody else, I refused permission to disturb the decisions, even though the general point of principle raised in the three cases under consideration might have had some impact upon the sequence of priorities. The grounds of this application[7]The claimant seeks judicial review of the panel's decision on the following grounds: i) The panel misdirected itself by applying the admissions guidance in the 2007 School Admissions Code as opposed to the School Admissions Code issued in 2009. ii) In any event, the panel misdirected itself by embarking upon an analysis of whether the admission system was inequitable for the reasons advanced by the appellants. iii) The panel misdirected itself in its conclusions as to what would have happened had admission arrangements complying with the Code been in force. iv) The panel failed to take into account the fact that the school adjudicator on an advisory review had not identified any problems with the admission criteria for schools in Buckinghamshire. v) The panel failed to give sufficient reasons for its decision and the court should be reluctant to receive post-evidence explaining its decision. The Statutory Scheme[8]The problem of allocating places at popular schools that are over subscribed is a long-standing one that many parents throughout the country will be familiar with when their children start school. Since at least 1998, the legislative scheme adopts two driving considerations which may conflict: the first is that infant class sizes should be no greater than 30, save in prescribed circumstances; the second is that, where possible, parents should be able to state a preference for a school and the school should allocate places in accordance with that preference. The endeavour to reconcile these two distinct considerations has been the requirement for schools to have clear, and transparent admission policies which comply with statutory criteria for priority where such criteria exist, and are otherwise fair and reasonable in respect of all children who might be admitted to them.[9]There is an annual process leading to a child starting a school in September that begins in the spring of the previous year. First, the admission authority, whether it be the governors of a voluntary aided school or the local education authority, publish the admission criteria for the following year and make arrangements for parents to express a preference (School Standards and Framework Act 1998 (SSFA) s.86). In so doing it must (since 12 th December 2006) act in accordance with the relevant provisions of a Code of Guidance issued and revised from time to time by the Secretary of State (SSFA s.84(l) and (3) as amended by the Education and Inspections Act 2006). There then follows a period (generally up to the 31 July) when any potential parent and a number of other people can object to the admission arrangements to the school adjudicator (SSFA s.88H; s88I). The adjudicator has a broad appellate jurisdiction to consider whether admission arrangements are lawful, in accordance with the Code and whether it is appropriate for changes to be made (SSFA S .88J). The decisions of the school adjudicator are binding on the parties to the proceedings and anyone else who might have brought them (SSFA s.88K (2)). The adjudicator may also give non binding advice to the Secretary of State when asked to do so (SSFA s.25). Once the admission arrangements have been clarified parents express their preferences having regard to the published criteria. In the spring education authorities or schools will inform parents of the outcome of their applications. Parents who are aggrieved may appeal under arrangements made by the local education authority (SSFA s.94) in this case to the panel.[10]Prior to the enactment of regulations referred to below the jurisdiction on such appeals was set out in the SSFA (Schedule 24 paragraphs 11 and 12). In a case where admission of the child would cause the school to exceed the specified class numbers and thus there is prejudice the Schedule provided:
"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 Sec 92) had been properly implemented)."
[11]In 2002 there was a legislative change with the result that those duties were removed from the Schedule to the 1998 Act but re-enacted in the Education (Admissions Appeals Arrangements) England Regulations 2002 SI/2899 that came into force on the 20 January 2003. There had been some debate as to whether this statutory jurisdiction to allow an appeal permitted a panel to determine whether school admission arrangements were lawful or whether that was the exclusive province of the school adjudicator. If the latter, then a parent should make a complaint in the year before their child was due to come to the school, or seek judicial review of any determination of a school adjudicator upholding the admission arrangements which worked out adversely to the child in question. The Hounslow case[12]In the case of School Admissions Panel for the LB Hounslow v The Mayor and Burgesses of the LB of Hounstow [2002] EWCA Civ 900 [2002] ELR 602 , (the Hounslow case) the Court of Appeal reviewed previous authority on the question and

Lord Justice May said this:

"60. The task of an appeal panel under this legislation, and in particular under paragraph 12 of Schedule 24, is to make a speedy decision as to the reasonableness of the local education authority's decision not to admit a particular child to an infants class. The basis of the appeal decision includes, but is not necessarily exclusively limited to, the parents' preference, the published arrangements for admission, the circumstances of the particular child and family, and the practical consequences for both the school and other children competing for places in the relevant infants class or classes. The published admission arrangements may normally be taken for what they are without 'judicial review' analysis. But as the Sheffield case indicates, they are not immune from criticism nor by themselves determinative of the appeal. An appeal will succeed under paragraph 12(a) Schedule 24 if inflexible application of the published admission arrangements to the circumstances of a particular child results in an admission decision which is perverse. That question may have to take into consideration both the reasons for the published arrangements and the parental preferences and needs of other children competing for the same limited place in the class. The circumstances of a particular child cannot be viewed in isolation. Consideration of the published arrangements may conclude that they do not in detail comply with statutory requirements, as in the Sheffield case. That would be relevant, but not determinative of an individual appeal other than in quite exceptional circumstances. There is nothing intrinsically unlawful about admission arrangements which favour on the one hand children who have a brother or sister at the school, or on the other hand those who live close to it. But inflexible application of either criterion - or, in another case, of other criteria - may produce a perverse decision in an individual case. Although decisions of a local education authority as to admission arrangements are not in principle immune from challenge on judicial review, it would, in my view, be quite exceptional for it to be appropriate for an appeal before an appeal panel to be interrupted for such a challenge. At a practical level, parents and children up and down the country need to know where the children are to go to school at the beginning of September.... 61 As both Pill and Peter Gibson LJJ said in the Sheffield case, the appeal panel's duty and primary function is to determine the merits of individual appeals. In the present cases, Hounslow's admission arrangements were not in general intrinsically or obviously unlawful. It was not, in my view, appropriate or necessary for the Panel to undertake what I am persuaded in substance was a general judicial review examination of them. The question whether a particular decision not to admit a child was perverse could, and in the present cases should, have been decided by taking note of any submission as to the admission arrangements generally, but without the need to decide anything but their application to the particular case."
[13]The claimant submits that that guidance as to how far, if at all, the admission panel ought to concern itself with the legality of admission arrangements remains good law to this day. The defendant disputes that and points out that the present appeal is governed by new regulations that were brought into existence on the 10 February 2009 by way of addition to old Regulation 6 of the 2002 Regulations so that Regulation 6 now reads as follows:
"Relevant considerations on appeals brought under Sections 94 and 95 i) "
In relation to an appeal made under the arrangements referred to in Regulation 3(a)-(d) the matters to be taken into account by an appeal panel in considering an appeal shall include: a) Any preference expressed by the appellant and b) The school's admission arrangements ii) Consideration of the matter mentioned in paragraph 1(b) may include consideration of whether those arrangements comply with any mandatory requirements of: a) A school admissions code or b) Part3 of the 1998 Act iii) Where the decision under appeal was made on the ground that prejudice of the kind referred to in Section 86(3)(a) would arise ... an appeal panel may determine that a place may be offered to a child only if they are satisfied that one of the conditions mentioned in paragraph (iv) applies. iv) The conditions mentioned in this paragraph are: a) The child would have been offered a place if the school's admission arrangements had been properly implemented; b) The child would have been offered a place if the school's admission arrangements had complied with the requirements of: i) A school admissions code or ii) Part 3 of the 1998 Act: c) The decision was not one in which a reasonable admission authority would have made in the circumstances of the case."[14]It can thus be seen that from 10 February 2009 school admission appeal panels have a duty to consider mandatory requirements of school admissions codes and assess whether a child would have been offered a place if the school admission arrangements had complied with the requirements of a code.[15]Mr McManus QC for the claimant submits that in the light of the consultation document that led to the new Regulations it is plain that no change in the law from that set out in the Hounslow judgment was intended by the Secretary of State. He observes that in 2008 the Secretary of State called for a consultation on the question of whether school admission appeal panels should be entitled to consider the lawfulness of admissions. In a document issued between October and December 2008 in response to that consultation it was said as follows:
"Case law suggests that panels should consider lawfulness of admission arrangements as they pertain to a specific child in certain circumstances. We agree with panels confining themselves to the case at hand, which should address many of the concerns of those outlined above whilst ensuring unfair practice is not ignored. The government has decided that the revised appeals code will make clear that panels must report doubts they have about admission arrangements to the schools adjudicator to prevent other children being unfairly disadvantaged as a result of unlawful admission arrangements continuing to be used."
[16]Shortly afterwards the statutory instrument amending Regulation 6 was laid before Parliament. The same day that amended Regulation 6 came into force the Secretary of State published two Codes. The first to be considered here is the School Admission Appeals Code 2009.[17]Paragraph 3.21 of the School Admissions Appeals Code is prefaced by a paragraph that has a footnote citing previous case law on infant class appeals including the Hounslow case. It is in the following terms:
"3.21. Consider whether a place was refused in error or as a result of admission arrangements which were contrary to mandatory provisions in the school admissions code and the SSFA 1998. The panel must consider whether a child would have been offered a place if the admission arrangements (including the areas co-ordinated in admission arrangements) had been properly implemented. The panel must also refer immediately to the school adjudicator any unlawful admission arrangements they identify in the natural course of their deliberations on a specific appeal."
[18]In a footnote to paragraph 3.25 of the guidance under the heading 'Whether the decision to refuse admission was unreasonable" is a further reference to the Hounslow case. Mr McManus therefore submits that where the consultation referred to the previous case law and where that case law is cited in the new admissions appeal code published at the same time as the new Regulation it must be inferred that the 2009 Code was not intending to change the law, and that the Secretary of State was content that the previous approach of the courts should be followed.[19]I am unable to accept that submission. It is perfectly true that two aspects of the Hounslow case continue to apply without modification, namely the need to focus on the individual appeal on the child concerned, and the ambit of what can be taken into account when the panel considers whether a decision is unreasonable. However, the guidance previously given by the Court of Appeal on how far the panel needs to examine the legality of admission arrangements generally must now be seen in light of the new duty to consider compatibility of the admission arrangements, not merely with the primary statute but with the mandatory requirements of an admissions code. Indeed, since the 12 th December 2006 by reason of the changes made by the Education and Inspections Act 2006, there is a duty not merely to take into account but to act in accordance with the code. It follows, therefore, that if a code set out new mandatory requirements for an admissions procedure which had not been followed in an individual case, and if it is possible to determine whether the child would have been offered a place if the mandatory requirements had been followed, the panel has a duty to consider an appeal before it based upon non compliance with the code, even if this to some extent traverses the broader jurisdiction of the schools adjudicator in considering whether admission criteria are appropriate having regard to the codes. I accept Mr Oldham's submission that where there has been a change in explanatory language and a new explicit duty imposed on the admissions panel which did not exist before, general judicial guidance as to what needs to be taken into account cannot be assumed to be applicable or binding as before.[20]Nevertheless it is also apparent from the terms of the Regulation and the Admission Appeals Code published at the same time that the panel's function has not changed from consideration of the individual case to consideration of admission criteria generally. The school adjudicator's function is broader in scope and occurs at an earlier stage of the proceedings to assist in administrative convenience and transparency. The cross-reference in paragraph 3.21 of the Code to the duty on the panel to refer cases to the schools adjudicator indicates that the resolution of conflicts with the law and the Admissions Code more generally will be for the adjudicator and not the panel. Ground 1 - which admissions code should the panel take into consideration[21]A central part of the parents' appeal to the panel in this case was based on paragraph 1.65 of the School Admissions Code of 2007. This paragraph appears in the chapter headed "The Law: Equity and Fair Access in School Admission Arrangements" and appears under a sub-heading, "Ensuring Equity and fair Access". In paragraph 1.64 the reader is reminded that local authorities are required by Section 13A of the Education Act 1996 as substituted by the Education and Inspections Act 2006 to ensure fair access to educational opportunity and this duty applies to a wide range of education functions. Then paragraph 1.65 provides as follows: "Parents must be able to make informed decisions when applying for school places for their children. The admissions system can appear very complex to some parents and admission authorities must make every effort to ensure that all parents are able to understand the process and in particular how over subscription criteria will be applied. Parents should also have access to all relevant applications. It is easier for parents to understand local admission systems that are clear, objective and fair. Above all, parents need to be able to understand whether they have a realistic chance of being offered a place for their child at any particular school. In drawing up their admission arrangements admission authorities must ensure that the practices and the criteria used to decide the allocation of school places: a) are clear in the sense of being free from doubt and easily understood. Arrangements that are vague only lead to uncertainty and this may reduce the ability of parents to make an informed choice for their children. They are also likely to increase their chances of an objection; b) are objective and based on known facts. Admission authorities and governing bodies must not make subjective decisions on new subjective criteria; c) are procedurally fair and are also equitable for all groups of children (including those with special educational needs, disabilities, those in public care or who may be a young carer); d) enable parents preferences for the schools of their choice to be met to the maximum extent possible; e) provide parents or carers with easy access to helpful admissions information... ; f) comply with all relevant legislation including on infant class sizes on equal opportunities and have been determined in accordance with the statutory requirements and the mandatory provisions of this Code". (emphasis in italics supplied)[22]It is pertinent to note that there are further provisions of this part of the Code that were not engaged in the decision making of the panel. Thus paragraph 1.67 provides that admission authorities must ensure that their admission arrangements and other school policies are fair and do not advantage either directly or indirectly a child from a particular social or racial group or a child with a disability or special educational needs. It states that admission authorities must ensure their arrangements comply with all other relevant equalities legislation. Admission authorities and governing bodies should develop and implement admission arrangements, practices and over subscription criteria that actively promote equity and thus go further than simply ensuring that unfair practices and criteria are excluded.[23]Chapter Two of this guidance has the heading:
"Over-subscription criteria"
. The various paragraphs of this guidance preclude interviews being used to determine which children meet over-subscription criteria. It reminds admission authorities of the over-riding need to secure admission to children with statements of special educational needs and the statutory priority given to children in care. Paragraph 2.9 under the heading "Achieving good practice in over- subscription criteria" states:
"It is for admission authorities and admission forums acting in accordance with the provisions and guidelines in this code to determine which criteria they will use and in what circumstances. In doing so admission authorities must ensure that an effective tie-breaker is included in their arrangements, for example random allocation. Admission forums must encourage all schools in their area to have arrangements that extend choice to parents whatever their social group."
[24]There then follows paragraph 2.13 which under the heading "Prohibition of unfair over-subscription criteria" says "In setting over-subscription criteria 'the admission authorities' for all maintained schools must not..." There then follows a list of fourteen illegitimate criteria for allocation that appear to be particularly designed to prevent disguised discrimination in favour of higher social or economic status or children whose families have had behavioural or similar problems in the past. It is not necessary to prolong this judgment by reciting the complete list.[25]Here the parents' successful submission to the panel was that the admission arrangements for Spinfield School were contrary to the mandatory provisions of paragraph 1.65(c) of the 2007Code because children in the street where all three appellants came from were rural/semi rural children and thus a member of a group, and that application of the distance criterion was not equitable for those children because it disadvantaged them.[26]It has been noted that the new Regulation 6(4)(b) came into force on the 10 lh February as did the new School Admission Appeals Code. This Code states:
"This Code comes into force on the 10 February 2009 and applies to all appeals heard on or after that date. It should be read alongside the school admissions code and other guidance and law that affects admissions and admissions in England"
(emphasis supplied) On the same day, a new School Admissions Code was published. By paragraph 1 of the Introduction it is said that the code comes into force on the 10 February 2009 "and unless otherwise stated applies with immediate effect".[27]Paragraph 1.71 of the 2009 Code is the equivalent of paragraph 1.65 of the 2007 Code . Sub-paragraph c) is amended to read "are procedurally fair for all groups of children". Thus the words, "and are also equitable" in the 2007 Code upon which the parents relied has been deliberately omitted. Although the panel was advised by its clerk that the 2007 Code was applicable and the local authority made no contrary submissions at the time, the claimant now submits that it is the 2009 Code which the panel should have applied in their decision delivered in May 2009.[28]The defendant makes the obvious point that the panel is considering an appeal from decisions based upon arrangements made in 2008. Those arrangements were made in the light of the guidance in the 2007 Code. It would therefore be absurd for the panel to use as an adjudicatory tool the terms of a code that were not known when the arrangements were made. It is pointed out that if admission arrangements are held to be incompatible with the guidance in a new code requiring the panel to apply the new code will undermine the whole structure of consultation, adjudication and informed parental consent.[29]I can see the general force of those submissions, particularly if the guidance was imposing onerous new criteria that could not have been foreseen or expected in the previous year's admission arrangements. Nevertheless, however counter-intuitive the position may be in the abstract, I have no doubt that the claimant's submissions as to which guidance is to be applied are correct. I reach that conclusion for the following reasons.[30]First, the claimant points out that where rules of policy of practice are concerned there is no necessary presumption that changes do not apply to pending decisions or cases. The example is given of immigration rules of practice where the House of Lords has clarified that absent special arrangements changes apply to pending cases: see the case of MO (Nigeria) v SSHD [2009] UKHL 25 ; [2009] 1 WLR 1230 .[31]Secondly, it is clear that the guidance itself is said to apply to all decisions taken after the 10 February 2009 without exception or reservation for decisions based on a previous year's scheme. As it happens both the refusals of the parent's applications and the determination of the panel all took place after that date.[32]Thirdly, it can be seen that the admissions guidance is one of three pieces of subordinate legislation or guidance that was brought into force on the same day. There is no dispute between claimant and defendant the panel was to apply amended Regulation 6(4)(b). There is no dispute that in so doing it should have regard to and apply the 2009 Code for admission appeals with its cross reference to the admissions guidance. In my judgment it would make little sense for the guidance to be applied in the admission appeals to be other than the admission guidance published on the same date. If the Secretary of State were making radical changes and providing new mandatory criteria for priority or outlawing other practices for giving priority, he might have made reference to new start dates. If not then the local authority and the admissions panel would have to live with that change however difficult or inconvenient it may be. Since Parliament has already required the panels to comply with the guidance, the guidance itself sets the standard to be applied.[33]Fourthly, although there has been no comprehensive audit of the changes made by the 2009 Code over the 2007 Code, it is apparent that in respect of the material in the present application for judicial review the Secretary of State was not adding new criteria to strike down admission arrangements but removing one that existed under old paragraph 1.65(c) ("also equitable"). I consider it relevant that throughout the life of the 2007 guidance the panel would not have been able to adjudicate on individual decisions according to whether arrangements were also equitable for all groups of children, as that would have been a judgment well outside the scope of the Hounslow case and the terms of Regulation 6 as originally enacted. Equity was not a requirement of a primary statute that went to the legality of admission arrangements. Further, it is apparent that such a broad criterion would be very difficult for anybody to apply. It would be particularly difficult for an appeal panel to come up with cogent answers to how it would be applied in concrete cases and how it would affect the admission of the individual child. It was only after the 10 February 2009 that the panel had power to examine compatibility of admission policies with mandatory requirements of the Code. It may in that context make sense that one debateable mandatory requirement of the 2007 Code that would have been difficult for the panel to apply was removed.[34]Fifthly, the defendant's submission that such a change would subvert the basis of certainty as regards parental understanding of the admission criteria when making bids in 2008 for the 2009 academic year proves too much. Such subversion would equally apply to the defendant's preferred submission on jurisdiction namely that the panel can determine for itself what an admission arrangement that was equitable for all groups of children would look like and judge whether the particular appellant before it would have succeeded under such arrangements. Since other parents will not know what the panel thought the arrangements ought to be until it delivered its decision there is even greater scope for unfairness and arbitrariness in the position of parents amongst themselves. Such an approach conflicts with the other requirements of paragraph 1.65 itself that are maintained in the 2009 guidance, namely democratic debate, transparency, and clarity.[35]For all these reasons I have concluded that, however understandably and inadvertently, the panel did indeed misdirect itself by judging these appeals on the 2007 Code as opposed to the 2009 Code. Although there are detailed provisions in both codes about equitable treatment of social groups and the prohibition of disadvantage of children in certain socio-economic groups it cannot be said that the reliance on the 2007 Code was immaterial. All parties pointed out it was only paragraph 1.65(c) that was relied upon the panel and not paragraph 1.67 which survives in a similar form in the 2009 Code. Indeed the panel specifically directed itself that a group in paragraph 1.65 did not have to be a particular social or racial group to which reference is made in paragraph 1.67.[36]Further, there is no evidence of any sort that the community who lived in the same street in the northwest part of the catchment area from which all three appellants came had socio-economic or other relevant characteristics for the purpose of paragraph 1.67 and its equivalent provisions in the 2009 Code. It will be for the panel on re-determination of these appeals and the evidence and submissions which are directed to it to decide whether the provisions of the 2009 Code assist the parents or not. Ground 2 - misdirection in applying Regulation 6 (4) (b)[37]Irrespective of which code was to be applied, the claimant submitted that in the event, in allowing the appeals the panel misdirected itself in two respects. First, it is submitted, that it was wrong for the panel to have been satisfied that "equity to a group of children" was a mandatory requirement of the Code of Practice that could be considered by the panel in an individual appeal. Secondly, even if that were wrong the panel could not have allowed the appeal unless it was satisfied that the child would have been offered a place if the school's admission arrangements had complied with the requirements of the code. It is submitted that the requirement of equity, even if it be a mandatory requirement of the code, is so imprecise and uncertain that it would have been impossible for the panel to have identified with a reasonable degree of probability what practical arrangements were required to give effect to it. If that were so, it could not answer the question whether if arrangements had been compliant with the requirement of equity each of the three successful appellants would have been offered a place at the school.[38]It is easier to deal with the second aspect of the misdirection contended for first. It is quite easy to see that a failure to comply with one of the provisions of Chapter Two of the Admissions Code could lead to a cogent judgment as to whether a child would still have been admitted to the school if the admissions arrangements complied with the Code. This would be the case whether a mandatory positive criteria was ignored or others had been afforded priority under criteria that should not have been in the arrangements. If no children had been given a superior priority under the prohibited criteria then presumably it would have made no difference to the child's chance of admission, but if a number of children had been given priority who should not have and their offers could be discounted, there is a reasonable degree of certainty in determining what the result would have been for an individual child. By contrast where the requirement is as open-ended as "equity to a group of children", it becomes extremely difficult to make an adjudication on what an admission scheme complying with such requirement would have looked like and therefore what its impact upon the individual child would have been.[39]To locate this argument within the factual context of the present case, the claimant points out that a finding of lack of equity to the children living in the rural/semi rural location identify, could have been addressed by a number of different means. Although the panel concluded that the nearest school criterion was the most appropriate way to address the inequity, it recognised it was not the only one. Other local authorities have adopted random selection or a lottery of those within the relevant catchment area. If a lottery had been adopted it would have been difficult to predict which children would have won and which would have lost. Secondly, a local authority could perfectly properly have addressed the perceived inequity by adjusting the catchment area rather than the distance criteria so mat some families living nearer to the urban part of Marlow and having a greater choice of schools would have been excluded from the catchment area of Spinfield school although they lived very close to it.[40]The more the argument developed, the greater the scope for different solutions to this problem appeared. In my judgment, it would have been open to a local authority to have varied the priority given under the existing arrangements to siblings. There is a perfectly respectable school of thought that giving automatic priority to siblings over feeder schools or nearest schools or social inclusiveness by distance can distort the composition of the school, particularly if the family with the qualifying sibling has moved far away from the catchment area of the school when the second child seeks to join the school.[41]It is further instructive to see how the panel address the issue in its reasons. In the original decision letter of the 6 May 2009, it was asserted without more "the IAP were satisfied that had the admission arrangements complied with the mandatory provisions of the Code then the child would have been offered a place at Spinfield School". It was recognised that these reasons for the decision were deficient and did not comply with the requirements of the regulations to give reasons. In due course Mrs Westgate, who chaired the panel, made two witness statements supplementing the reasoning process. In the first witness statement she says this:
"14. We took the view that this meant we had to decide what admission arrangements the local authority would probably have adopted to avoid an inequitable treatment of children living in rural/semi-rural locations. We recognise that there is an element of conjecture about this but it was open to the local authority to give us evidence on this issue if had wished. It did not do so..... 16. We speculated on whether the children would have got a place at Spinfield had the local authority adopted Hertford's approach... the local authority statistics., give an impression that in the last five years there have been many children who have not been offered a place at Spinfield, despite expressing it as a preference. If this were the case then it would be difficult for the panel to conclude that the children would have got a place even if Hertford's approach had been adopted. ... 17. The parent's email show that only 7 out of 37 catchment children failed to get a place. It was against this information the distances provided by those living (in the children's road) that I concluded that they would probably got a place had Hertford's criteria been adopted. 18. The panel therefore speculated whether the children..would have got a place had random allocation been used. I noted that there were 37 applications made from those living in the catchment area of Spinfield School for 30 places. I concluded that there was a statistically higher chance that the .. children would have obtained a place under the random allocation criteria. 19. 19. On the evidence given we concluded that the council would probably have adopted the Hertford approach and the children would probably have obtained a place at the school."
(emphasis supplied)[42]It appears that the clerk to the panel prepared a note of advice given to the panel which includes the advice that the panel should not decide what admission arrangements should have been given but that the panel had to have regard to the parent's arguments. Mrs Westgate's second witness statement notes that "We asked the clerk how it could be clearly demonstrated that a child would have been given a place had the arrangements not breached the admissions code as we were required to do under paragraph 3.22 of the Appeals Admissions Code if we did not consider what would have happened had the council adopted admission arrangements which complied with the code. She was unable to answer."[43]Although the claimant objected to the insufficient decision being supplemented by post-decision evidence in this way, in my judgment there is no reason to doubt having regard to the clerk's notes and to the way the case was presented by the parents that this evidence reflects part of the reasoning process. But what it also tells us is the very real difficulties that the panel was faced with in seeking to determine what arrangements would have replaced the arrangements they held to be inequitable. Although they have looked at two, referred to as Hertford (i.e. nearest school) or Brighton (i.e. random allocation), on true analysis there were a number of different arrangements which could have been made. Although the panel may well have been entitled to conclude that any alternative arrangement would have improved the prospects for the children concerned, it is not possible to see how they could first have reached the conclusion on what arrangement would have been applied and secondly have reached a conclusion that the children would have been offered a place if that particular arrangement had been applied.[44]All this gives substance to the claimant's first submission that even if 2007 guidance applied, the criteria of equity to the group of children was not the kind of mandatory requirement that Regulation 6(4)(b) envisaged should be deployed to be set against the admissions criteria. Though I have rejected the claimant's broader submission that somehow the Hounslow judgment identifies the issue, there may be some traversing of similar terrain by examining what is a mandatory requirement within Regulation 6(4)(b). There is a difference between a hard rule that a certain means of awarding priority is impermissible and a hard rule that certain priorities had to be factored into the system, and a rule that local authorities should aim to achieve over-all fairness in particular ways. To some extent the broader the notion of equity is extended, away from particular forms of social group who have an identity based upon property, educational achievement, social origin or whatever factor relating to their present status and parental background as may be considered relevant and any group that shares a common characteristic.[45]Indeed pursuing the logic of the panel's findings in this particular case it might be queried whether the reason why the three children were unsuccessful in obtaining a place was because they were members of a rural or semi-rural part of the Marlow catchment area as opposed simply to not living near enough to the school. There would be children who were living in a rural or semi-rural part of Marlow with the same social or other characteristics as this group of three children but who did qualify for the catchment area because they lived closer. Yet it cannot simply be the fact that the children did not qualify on the distance criterion that makes it inequitable, as it is well established that the distance criterion is a common and generally lawful means of tie-breaking in cases of over-subscription. 1 accept the defendant's point that this does not mean that it will always be lawful irrespective of circumstances even if it creates great social distortion in the composition of the school because of the location of a particular housing estate or other factors relevant to the particular geography of the school in itself; but that is not this case.[46]Although of no direct relevant to the resolution of the construction of Regulation 6(4)(b) I was referred during the hearing to a recent decision of HHJ Stephen Stewart QC sitting as a Deputy High Court judge in the case of Queen on the application of the Governing Body of Drayton Manor High School v The School's Adjudicator from the London Borough of Ealing [2008] EWHC 3119 Admin , [2009] ELR 127 . That was a case where the school adjudicator, applying the more intensive jurisdiction of whether admission criteria were appropriate, had upheld a challenge by the education authority to the use of the governing body of the school of the nearest school criteria on the basis that it excluded an area of social and economic deprivation in the northern part of the school. The decision was ultimately quashed by His Honour because the adjudicator had failed to adequately address a submission made by the school that a return to the pure distance criterion would also create advantage to an area of social and economic deprivation to the east of the school.[47]In my judgment, the issues in that case demonstrate the real difficulty in coming up with concrete solutions to the laudable provisions in the Code of Guidance as to equity and diversity. In my judgment, therefore, a mandatory requirement is likely to be one that is precise and certain in its application to a given set of facts and does not require a panel to make a broad judgment preferring one of a number of potential means of addressing a problem. Absent precise criteria it would only be in unusual circumstances where it was apparent that a properly self directing panel could reach the conclusion that there was only one way in which an admissions authority acting lawfully could possibly have given effect to the duty in the Code. If that state of affairs existed and applying the only possible criteria would have resulted in admission of the child concerned, then the Regulations can be applied in the way in which they were intended. This was not the panel's reasons in its amplified decision.[48]In my judgment, there is much force in the claimant's submission that the Secretary of State cannot have intended the panel to have embarked upon a course of investigation where it cannot provide a remedy to the individual appellant. However, if a panel could embark upon the task of identifying a failure to adhere to the mandatory requirements of the Code, even though it could not form the judgment as to what would have happened if the Code had been adhered to, the 2009 Appeals Admission Code suggests that the solution is to bring the matter to the attention of the schools adjudicator. This was done in the present case and the adjudicator indicated he would examine the issue in due course.[49]Although there is no statutory provision directly providing for an admission panel to make a complaint to an adjudicator which the schools adjudicator must determine, I consider there is substance in the claimant's submission that Section 88 (I)(5) School Standards and Framework Act 1998 as amended enables the adjudicator to address illegality wherever he is aware of it and once the local authority have completed a report to him of issues relating to their arrangements for admissions. The Claimants' other grounds[50]I do not consider there is substance in either the ground that the panel failed to take into account a relevant consideration or failed to give sufficient reasons for their decision. I would not have quashed the decisions on those grounds. The mere fact that a school adjudicator has not identified a particular defect in a general review of policies under SSFA s.25 may be of little weight in a panel decision on an individual appeal, even if it was a factor relied upon by the local education authority in this appeal which it does not appear to have been. In a particular case the impact of apparently neutral policies on a particular geographical configuration can be evidentially explored by the panel. If this had been the case when a schools adjudicator had expressly considered and rejected an identical complaint made by parents the position would have been very different. I do not need to determine whether in such a case the panel would have been bound by the adjudicator's decision, or whether they should have taken that as their starting point unless there was compelling reason to depart from it. It was not the case that arose before this panel in determining these appeals. Conclusions[51]However, for reasons given earlier I conclude that this panel did misdirect itself both in applying the 2007 Code to a new set of arrangements starting on the 10 February 2009 and because it misdirected itself in the application of Regulation 6(4)(b) itself even if the 2007 Code had applied.[52]As always, the court has sympathies for all the parents and the members of the panel concerned with such difficult questions. For the parents concerned it is inevitable there will be further uncertainty as to where the child will be admitted to school in September. That is a sad feature of cases where there are either insufficient schools or over-subscribed schools. The very fact that individual parents and panels considering the appeals of individual children against the background of an established set of admission criteria is an indicator that the appeal process should be precise, focused and practical rather than grappling with imponderable questions, that can either not be answered on the evidence of one particular appeal, or answered in time, or answered in a way that would not distort the democratic process of consultation and determination on sensitive topics in which all parents and education professionals in a particular community are entitled to participate. Although the clear jurisdiction of the panel to apply Regulation 6 (4)(b) cannot be cut down either by the previous case law of this court, neither should that jurisdiction be construed in a manner that would cause unnecessary clashes with the broader jurisdiction of the school adjudicator and create uncertainty for individual parents awaiting the outcome of their submissions or the whole class of parents who would not know what the effective admission arrangements are at the outset of the process. Fairness and equity in this sense have to be read alongside transparency and certainty as equal values of the legislation and the Code.[53]For these reasons this application is allowed and the decisions will have to be reconsidered. There are no consequential orders sought.

Cited in 1 later judgment