We are delighted to invite you the virtual 11KBW Education Law Conference. The conference will be covering topics for Schools and Higher Education.

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We are very pleased to announce that the ‘Education Law Handbook’ has just been published by LexisNexis. Written by education law specialists here at 11KBW, this is a comprehensive textbook for legal practitioners covering all areas of education law from pre-school to university.

It might be too late for Santa to drop one down your chimney but copies are available here and we are (Covid permitting) planning to have a launch party in the new year.  Watch this space for further details!

In the meantime, a very happy Christmas from all of the education team at 11KBW.

Paul Greatorex

Date: Tuesday 23rd November 2021

Time: 10:00-11:00

Speakers: Paul Greatorex & James Cornwell

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Jonathan Auburn QC explains the new law on off site schooling as set out in today’s judgment on this issue in R (CHF) v Newick CE Primary School [2021] EWHC 2513 (Admin), 17 September 2021. This case sets out the legal principles by which schools and local authorities can require children to attend at a place other than the school they are registered at, to receive education, including requirements to attend at another school. Jonathan successfully argued the Newick School case on behalf of the school and local authority.

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The Decision of the FTT in Ogazi v Information Commissioner, EA/2021/0078, concerns a Freedom of Information Act (FoIA) Request made by a parent of a pupil to a School about the pupil’s GCSE exam grades in 2020. Due to Covid-19 the grades were assessed by schools rather than external examination.  The School provided anonymised information.  It declined to provide information in the format requested, which included the actual final grade for each student in the subject concerned. The refusal was upheld by the Information Commissioner and by the FTT.  This was on the basis of Section 40(2) of FoIA, personal data of third parties, the GDPR and its Data Protection Principles, and the Data Protection Act 2018 definition of “personal data”.  The Decision is of interest both byway of reiteration of the principles to be applied and as to the application of those principles to the facts.

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Date: Tuesday 29 June 2021
Time: 10:00 – 11:00

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Date: Thursday 11 June 2020

Time: 10:00 – 11:00

Peter Oldham QC and Jonathan Moffett QC will talk about the legal implications for university admissions of the pandemic, and the impact of remote learning and working on HE providers’ legal duties to students and staff.

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The normal Cyanamid test for granting an interim injunction is whether there is a serious issue to be tried; if so, whether damages would be a sufficient remedy; and if not, where the balance of convenience (or balance of injustice) lies. Sometimes these stages, particularly the last two, get compressed together.

But where a party brings a judicial review claim against a draft report produced by a public body under its statutory duties, and seeks an interim injunction to prevent it being published pending the outcome of the claim, the Court will apply a heightened test, making it harder for the claimant to get the injunction. This is the approach which the Courts have uniformly applied to applications for interim injunctions against the publication of OFSTED reports.

In R (X School) v OFSTED [2020] EWCA Civ 594 athttps://www.bailii.org/ew/cases/EWCA/Civ/2020/594.html, in a judgment handed down on 7th May 2020, the Court of Appeal considered a secondary school’s appeal against Julian Knowles J’s refusal of an interim injunction to prevent publication, pending trial, of an OFSTED report of an inspection in October 2019.

Whilst the Court of Appeal outcome (as we will see) applied a long established test, the procedure was slightly unusual.  Knowles J had refused the application for the interim injunction, but he had not determined whether permission to apply for judicial review should be granted. The Court of Appeal constituted itself as a Divisional Court under ss 9 and 66 of the Senior Courts Act 1981 to determine the application for permission to apply.   The grant of permission would be the first issue, since if permission were not granted, there would be no claim to which the application for the interim injunction could attach. If permission were granted, and there was therefore a live claim, the next question would be whether to grant the interim injunction.  To determine the injunction issue, the Court of Appeal would sit as the appeal court.

Permission to apply

The facts were that the draft report grades were a mixed bag, but safeguarding and overall effectiveness were “inadequate”, with the very serious criticism  that “a large minority of pupils do not feel safe in school.  They are concerned that leaders do not tackle issues such as bullying well enough … .”  The school’s main ground of claim was that it was irrational for OFSTED, on the evidence before it,  to grade the school as “inadequate” when it had been graded “good” in 2016 (there was also a claim that OFSTED’s procedures were unfair, which was given short shrift).

Lindblom LJ gave the only reasoned judgement; the Chancellor and Henderson LJ agreed with him.  Lindblom LJ said that irrationality was difficult to establish, and that the school failed to do so.  Accordingly permission to apply was refused.

Interim injunction

Because permission to apply was refused, Lindblom LJ said that it “may be academic” for the Court to deal with the interim injunction appeal, but it did so because “the law may require some clarification from the Court of Appeal”.

He referred first to the Cyanamid test, and said that in public law proceedings these principles had been applied in a modified way. In Factortame No 2 [1991] 1 AC 603, Lord Goff said at 674:-

“In the end, the matter is one for the discretion of the court, taking into account all the circumstances of the case. Even so, the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.”

Against that general background, Lindblom LJ turned to the cases about interim injunctions to prevent a report by a public body. He referred to a number of the OFSTED injunction cases, saying:-

“67 There is also support for the proposition that the court will require a powerful justification for restraining the publication of a report of a public body under a duty to prepare it, including reports prepared by Ofsted.”

He enumerated a number of cases where such an such an application had failed, and one where it had succeeded –  R (Interim Executive Board of X) v Ofsted [2016] EWHC 2004, where the judge had found that the draft report was “frankly inconsistent” with an earlier draft, that there was  “clear evidence of antagonistic behaviour” by inspectors during the inspection, and “compelling evidence” that the effect of publication could be “extremely adverse and irreparable”.

Lindblom LJ referred to Taveta Investments Ltd. v Financial Reporting Council [2018] EWHC 1662 (a defamation case) in which Nicklin J had applied the high hurdle test, but had questioned whether it was correct, wondering whether it could be justified in the light of ECHR Art 8 (right to privacy).  In R (Barking and Dagenham College) v Office for Students [2019] EWHC 2667 Admin, Chamberlain J said that, unlike Nicklin J, he had no reservations about applying the long established high hurdle test.  Lindblom LJ said that Chamberlain J’s judgment was correct, and that there was no inconsistency between the approach in Factortame No 2 and Arts ECHR Art 8 and 10 (right to freedom of expression). He continued:-

“79. Chamberlain J. was therefore right to refer to the concept of a “high hurdle”, and the various phrases corresponding to it that one sees in the authorities. As the case law shows, the facts will vary from case to case. But it is, I think, highly unlikely that the kind of circumstances justifying the grant of injunction that arose in Interim Executive Board of X will often occur; they were indeed exceptional. In striking the balance overall, the court will keep in mind that only if the factors weighing in favour of an order to restrain publication are nothing less than compelling should such relief be granted.”

This was the approach Knowles J which had correctly applied. The Court of Appeal said that he had been “clearly entitled” to regard the considerations in favour of interim relief as being outweighed by the “very strong factors against”.  Accordingly the appeal was dismissed for these further reasons.

Peter Oldham QC

In an earlier blog today, my colleague Jonathan Auburn posted a link to the new school admission appeal regulations, or (in full) The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. You can also find them here:- https://www.legislation.gov.uk/uksi/2020/446/made.

The key (rather complicatedly formulated) change is in new reg 7 of, and Sched 2 to, the 2012 Regulations, which are introduced by regs 6-11 of the 2020 Regulations.  Para 2 of the new Schedule 2 applies where the coronavirus crisis means that it is not reasonably practicable for either party to the appeal to appear in person (as the School Admission Appeals Code would otherwise require). In such a case (emphasis added to bring out two points I refer to later on):-

2(1) An appeal panel may decide to hold an appeal hearing using remote access provided—

(a) the parties are able to present fully their case;

(b) each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the appeal hearing; and

(c) the panel considers that the appeal is capable of being heard fairly and transparently.

(2) Where any of the conditions prescribed in sub-paragraph (1)(a) to (c) are not met, an appeal panel may make their decision on the appeal based on the written information submitted

“Remote access” means:-

“access to an appeal hearing to enable those who are not all present together at the same place to attend or participate simultaneously in the hearing by electronic means, including by live audio and live video link.”

There are a couple of points here.

First, though para 2(1) says that a LA “may” (for Covid reasons) hold an appeal remotely if the three conditions (a)-(c) are met, does it really mean “must if an in-person appeal can’t be held because of the virus”?  The alternative to holding the appeal remotely is doing it on the documents (para 2(2)) which is said to be an option only if any of the three conditions in para 2(1) are not met.  It seems to me that this means that LAs which cannot hold a in-person appeal because of the virus have to hold it with remote access unless one of the three conditions (a)-(c) is not fulfilled.

Second, what does “remote access” require?  The phrase “including by live audio and live video link” might be ambiguous if you considered the definition on its own: does it mean a link allowing both audio and video access, or does it mean that either an audio and video link, or audio on its own, is enough?  It must mean audio alone is enough as that is implied by the words in brackets in condition (b) in para 2(1).  Whether audio alone would allow the conditions (a) and (c) to be met is a different issue.

The 2020 Regulations also include provisions allowing an appeal panel to have two members for Covid related reasons; and imposing new time limits for the appeal procedure.

Peter Oldham QC

The new School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 have just been published and are available here. Read more »