The Queen (on the application of M) v Independent Appeal Panel of Haringey [2009] EWHC 2427 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2009] EWHC 2427 (Admin)Case No Case No: CO/8433/2009Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
The Queen (on the application of M)ClaimantIndependent Appeal Panel of HaringeyDefendantHaringey London Borough Council(interested party)
Before
Lord Carlile of BerriewStephen Broach (instructed by John Ford Solicitors) for the ClaimantOliver Hyams (instructed by Haringey London Borough Council) for the DefendantsHearing date: 27th August 2009Date 16 October 2009

Lord Carlile of Berriew QC : Background - 2 - This is a renewed application for permission to apply for Judicial Review. Directions previously given, for a rolled up hearing, have the consequence that, in the event of permission being granted, the hearing before me would be treated as the substantive application for Judicial Review.

[2]At the conclusion of the full oral argument I announced that I would give permission, and that I found in favour of the Claimant in her substantive application. I made an order accordingly. In this Judgment I give reasons for that decision.[3]The case turns on the choice of school for an 11 year old girl leaving primary education for high school.[4]It was agreed before me that the facts are not materially in dispute. The Claimant M is the mother of the child whom I shall describe as MC. They live in part of Haringey, a large and populous London borough. M and her family have suffered from a high level of threats and intimidation and have otherwise been distressed, because of community and family problems connected with local criminality and M's contacts with the persons concerned and with the police. Attendance at any nearby school containing pupils connected through family with that criminality could lead to violence, threats, bullying and other adverse consequences for MC.[5]In this context M applied in accordance with the relevant regulations for MC to be placed in a school of her preferred choice (which I shall call the PC School). PC School is popular and oversubscribed. By a letter dated the 2 March 2009 the Haringey Council Admissions service informed M that her application was refused, and that a place was offered at another school. That letter included:
"It is not accepted that [the PC School] is better placed than other schools to meet [MC] 's needs. Specifically, the professional evidence does not support [her] admission to any particular school - merely one that is away from her present neighbourhood. This can be met by [MC] attending any school outside her immediate area."
[6]M appealed against the refusal to the Defendant appeal panel. The hearing took place on the 12 June 2009. After a full hearing at which M was represented by counsel Mr Broach (who conducted her case in this Court), the appeal was refused. Subsequently, by a letter dated the 7 July 2009 the Council indicated that there were places available at four other named schools in the Haringey council area, including the one offered earlier. The grounds[7]The essence of the Claimant's grounds can be described as follows:(i) The Defendant failed to consider whether the Council had applied correctly its admission criteria.(ii) The Defendant failed to apply the correct test for admissions appeals.(iii) Both of those failures breached mandatory aspects of the relevant statutory Appeals Code.[8]The Defendant panel submitted that there was no error of law. It argued that the original decision, the appeal hearing and the decision were entirely in accordance with the provisions.[9]In so far as the appeal hearing itself was concerned, I was assisted by some original and contemporaneous notes. In addition, a witness statement by the Chair Denise Friedman was provided, made two months after the hearing and expanding on what occurred. There was some dispute as to whether I should read the statement, and authority was cited before me as to the propriety of so doing. I see no need to dwell on this point, as the statement did no more than attempt to explain the hearing more fully. The Claimant was not in any way prejudiced or adversely affected by the statement, taken in conjunction with the notes. A considered decision letter explaining the panel's conclusions was sent to the Claimant by Clare O'Neill, Clerk to the panel, on the 21 June 2009, just over a week after the hearing: I have taken that undoubtedly considered letter as a reliable summary of the conclusions.[10]I am mindful that decision letters are not to be read in too pedantic a way, as if they were to be interpreted like statutory material. I was referred to R (Khundakji and Salahi) v Admission Appeals Panel of Cardiff and Another [2003] EWHC 436 (Admin) in which Richards J (as he then was) said of decision letters [461:
"It was unnecessary to spell out as part of the grounds which factor or factors the panel considered to be of particular significance in striking the balance. It was sufficient to indicate in general terms what had been taken into account, the nature of the balancing exercise carried out, and the conclusion reached."
However, in R (L) v The Independent Appeal Panel of St Edward's College [2001] EWHC 108 (Admin) Morison J said [381:
"For the future it seems to me that a standard type letter might be appropriate where the appellant simply asks for the panel to review what the admissions committee had already decided, but that if there were issues of fact to be reached by the panel ... then the applicant in such a case is entitled to know how the facts were resolved and, briefly, why."
In the present case, as I comment above, the Clerk gave a considered and more than general account of the reasons for the panel's decision. There is no vagueness about them, and the letter should be viewed accordingly. The admission criteria[11]The council's admission criteria include the following: Priority will be given in the following[12]In this case MC's need was supported by a written statement by her general practitioner. No point was taken in this Court adverse to the connection between the child's need and the PC School: the connection required was described in some detail in M's application. The Legal Framework[13]There was no substantial dispute about the law in this case.[14]The School Standards and Framework Act 1998 section 84 requires the Secretary of State to issue a code for schools admissions. Pursuant to section 84(3) it "shall be the duty" of relevant bodies (which include the current defendant) "to act in accordance with any relevant provisions of the Code" .[15]It follows that it is mandatory for the Defendant so to act, albeit that the code does not form part of primary legislation.[16]The Schools Admissions Appeals Code [1] in its current form was issued by the government in February 2009. In the introduction at paragraph 3 a reminder is given that the requirements are mandatory.[17]Chapter 3 of the code deals with admission appeals. So far as material it reads (all emphasis is contained in the original): Two Stage Process3.1 Panels must follow the two-stage process as set out below for all appeals ...(a) First Stage: establishing the facts, at which the panel considers whether the school's published admission arrangements: (i) comply with the mandatory requirements of the ... Code. (ii) were correctly applied in the individual's case, and decides whether 'prejudice' would arise whether the child were to be admitted. If this is proved, the panel moves on to the second stage.(b) Second Stage: balancing the arguments, at which the panel exercise its discretion, balancing the degree of prejudice to the school against the appellant's case for the child being admitted to the preferred school, before arriving at a decision. First stage: establishing the facts3.2 The panel must consider the following issues. (a) Whether the relevant oversubscription criteria for the school and coordinated admission arrangements were correctly and impartially applied to the child concerned. If not, whether the child would have been offered a place had the arrangements been properly applied ... (b) Whether or not there would be prejudice caused by the additional admission of the child. Where this is the case, the admission authority must be able to demonstrate this over and above the fact that the published admission number has already been reached. Second stage: balancing the arguments 3.6 At this stage the panel must consider whether the appellant's grounds for the child to be admitted outweigh any prejudice to the school. The panel must take into account the appellant's reasons for expressing a preference for the particular school .[18]My attention was drawn to the decision of Forbes J in the unreported case of R v South Glamorgan Appeal Committee ex parte Evans, which is summarised at pages 1212-1213 of the Encyclopaedia of Education Law. Dealing with earlier but very similar provisions he said: ". it seems clear to me that in embarking on an appeal the appeal committee has not merely to decide whether there would be prejudice; it has to embark, if it decides there is prejudice, on the balancing exercise of whether the degree of prejudice is sufficient to outweigh what I will call the parental considerations, including such matters as geographical factors, place of residence, exceptional medical or social factors, and children with older brothers or sisters in the school[19]That statement in my judgment remains a sound signpost towards the correct interpretation of the current provisions, and how panels should proceed. Application of the law in this case.[20]In the decision letter dated the 21 June 2009 giving the written conclusion of the Defendant, the Defendant's Clerk Clare O'Neill confirmed that the panel had made the decision in two stages - purporting to apply the two stage code test. She said:
"The panel first considered if the admission authority for the school was right to refuse your original application for your child to attend there. In effect, this means that the Panel had to decide if the school was full in the appropriate year group. . the Panel found that the school had reached its published admission number of 243 pupils and was full. The Panel also concluded that the school would be presented with several management and curriculum problems associated with overcrowding if one more children [sic] were admitted over and above the stated number. They therefore concluded that the decision not to allow your child a place at [the PC School] was correct under the circumstances."
[21]Later in the letter, perhaps out of position but plainly relevant to the first stage, the Clerk added:
"They considered that the difficulties the school would face if the Panel were to comply with your preference to admit [MC] to [the PC School] would far outweigh any disadvantage suffered by not being admitted to the school."
[22]The appeal process first stage is not a comparative one, in which a selection might be made between the parental choice school and named other schools. Rather, it is a process in which the parental choice of school alone is tested against the mandatory requirements of the code. If the appeal fails, the parent is required to choose another school in which an available place has been indicated.[23]The decision letter and the short hearing notes fail to demonstrate any application of the subjective criteria contained in the first stage of the code test. I do not understand Mrs Friedman's statement as adding anything significant to this part of the case or to contradict the decision letter. The effect is that the panel appears to have applied a fixed policy test, namely no additional pupils above the year limit of 243 set by the school. This reads as a classic example of fettering a discretion (the decision whether or not to admit the child in question) with a policy (no children at all above the 243 set by the school). No 'prejudice' was found in relation to the proposed admission of MC, other than the statement of the obvious that one child over the set 243 would be admitted. In my judgment the first stage test requires more than this: the panel must consider whether prejudice would occur if the child in question were admitted. For example, this subjective element might result in the conclusion that the child concerned presented certain features that might enhance the school despite being an addition to the set number. Without the subjective consideration, the element of paragraph 3.2(b) of the code, quoted in paragraph 17 above, is not satisfied.[24]Therefore it follows that, in my judgment, the defendant panel misdirected itself in failing to apply the correct test under the first stage. Had it applied the correct test, I cannot be certain that it would have reached the same conclusion. This is a material misdirection. On those grounds alone I find that the defendant made a significant error of law, such that the decision should be quashed. The practical consequence is that there will be a new hearing before a freshly constituted panel.[25]However, if I am wrong in my conclusions about the first stage, it may be helpful if I deal too with the second stage.[26]In the decision letter Clare O'Neill said:
"[The panel] did not consider that there were exceptional reasons to compel the school to admit a further pupil, having accepted that it would prejudice the education of children already within the school."
[27]The second stage test refers in paragraph 3.1(b) to "balancing the arguments", not to any test placing a burden on the applicant to prove exceptional reasons. The true evidential burden, as set out in paragraph 6 of the code, is for the parent to show that her grounds for admission of the child "outweigh any prejudice to the school" . Thus in the case of MC the panel was obliged to consider the reasons given for MC expressing a preference for the PC School, as against the prejudice to the school of admitting one additional child (there being no reasons personal to MC for her non-admission). Once all the material is before the panel, particularly at this stage, when the panel is going to have to perform a balancing act, the decision in practice will not depend on the onus of proof: the panel has to come to its decision on the basis of all the material which it has available and by applying its expertise to that material it should decide where the balance lies: see R v Commissioner for Local Administration, ex parte Croydon London Borough Council and Another [1989] 1 All ER 1033 at page 9 per Woolf LJ.[28]At this stage, as paragraph 3.7 of the code provides, allocation of a place at an alternative school may be taken into account: in this case the only allocation made was at a school where the risks feared by MC could arise. In the decision letter Clare O'Neill wrote:
"The Panel considered that a number of schools within Haringey could be suitable for [MS] and that it was not the case that [the PC School] was the only suitable school for her."
[29]There was no evidence in particular as to whether the addition of MC to the PC School would cause prejudice beyond the effect of the mere addition of herself as a single pupil. A letter written by the head of the school dated May 2009 described in general terms the shortage of space: there is nothing whatsoever in the letter to indicate any connection with any particular application, by MC or anyone else. It can be summarised as saying simply that the school was full.[30]In my judgment the Defendant panel misdirected itself in two ways in the second stage. First, it applied a burden and test of exceptionality not provided for in the code. Second, it strayed into comparisons with other schools for which no allocation had been made to MC. These were material misdirections. Had the correct approach been applied, I cannot exclude the possibility that a different decision would have been reached. Order[31]In the light of my findings described above, I grant the following relief:(a) A declaration that the Defendant acted unlawfully in deciding that the Claimant's child MC should not be admitted to the school of parental choice, by reason of material misdirections in relation to the tests required to be applied pursuant to the mandatory Schools Admissions Appeal Code 2009.(b) An Order quashing the Defendant's said decision. Note 1 Available most easily at www.dcsf.gov.uk/sacode

order

(b) Children who the Authority accepts have an exceptional.... social need for a place at the school. ... if they are supported by a written statement from a doctor, social worker or other appropriate independent professional. In each case, the connection with the child's need and the specific school applied for must be clearly demonstrated.

Cited in 1 later judgment