In Davies v LB Haringey, a decision of Mr. Justice Supperstone handed down on today (17 October 2014), the claimant was a teacher who had been on full time release for trade union duties for 14 years.  At the time she went on release, she was working at a community school, so by section 35 of the Education Act 2002 her employer was the local authority rather than the governing body.

In 2014, the council wished to investigate disciplinary allegations against her and suspended her in relation to breaches of the council’s Code of Conduct and Social Media Policy.  She claimed that this was a breach of her employment contract, asserting that, by reason of regulation 19 the School Staffing (England) Regulations 2009, only the governing body had the power to suspend her.

The Council, represented by Peter Oldham QC of 11KBW, argued that the Regulations applied only to those worked in schools, and the reality of the situation was that the claimant had not done so for a long time. Further the Council argued that regulation 19 of Regulations gave a power to the governing body to suspend but did not take away the Council’s power to suspend under the contract of employment.

The judge agreed with both of the Council’s contentions.   Whilst the facts were very unusual (on account of the teacher’s absence from the school on trade union duties), nevertheless, the determination that the local authority retains statutory powers of suspension and discipline, at least in exceptional cases, is significant.

Tom Ogg

The Department for Education has published the Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014, which set out the grounds on which a person may be prohibited from participating in the management of an independent school (including a free school or academy) under section 128 of the Education and Skills Act 2008, and the related procedures.

For the details of the regime generally see here.

The grounds on which a person may be prohibited are set out by regulation 2(1):

(a) the person—

(i) has been convicted of a relevant offence;

(ii) has been given a caution in respect of a relevant offence;

(iii) is subject to a relevant finding in respect of a relevant offence; or

(iv) has engaged in relevant conduct; and

(b) because of that conviction, caution, finding or conduct, the appropriate authority considers that the person is unsuitable to take part in the management of an independent school.

Note that “relevant conduct” includes, by regulation 2(5), conduct that:

(a) is aimed at undermining the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs;

(b) has been found to be in breach of professional standards by a professional body; or

(c) is so inappropriate that, in the opinion of the appropriate authority, it makes a person unsuitable to take part in the management of an independent school.

Finally, regulation 2(6) provides that spent convictions (with certain exceptions) may be considered.

Whilst the grounds above are broad, they are similar to the grounds open to the regulators of other industries, such as the Financial Conduct Authority.  In effect, they provide a broad discretion to the Secretary of State to prohibit individuals from taking part in the management of independent schools.  The powers are brought into force on 1 September 2014.

Thomas Ogg

Introduction

R(CR) v Independent Review Panel of the London Borough of Lambeth [2014] EWHC 2461 (Admin) (available only on Lexis Nexis currently) is the first judicial review of a case arising from the new school exclusions regime introduced by the Education Act 2011.  The facts of the case are not of particular note in themselves – as Collins J noted, it was “in many ways a most unfortunate case (indeed all exclusion cases are)” (para 2).  However, the judge makes a number of useful observations on the practice and procedure relating to the new exclusions regime.

Grounds of judicial review that may be considered by an IRP

An Independent Review Panel (“IRP”) has the power to review the decision of a ‘responsible body’ to uphold a head teacher’s decision to permanently exclude a pupil (‘responsible body’ usually means a school’s governing body).  The IRP’s powers of review are set out by section 51A(4) of the Education Act 2002:

(4) On an application by virtue of subsection (3)(c), the review panel may—

(a) uphold the decision of the responsible body,

(b) recommend that the responsible body reconsiders the matter, or

(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.

The requirement that the IRP apply “the principles applicable on an application for judicial review” has caused headaches for schools, local authorities and excluded pupils up and down the country.  What does it really mean in practice?  Does an IRP seriously have to consider all possible grounds of judicial review, as the High Court does?  In CR, Collins J provides some guidance.

The Judge began his consideration of the new exclusions regime by reference to the guidance issued by the Secretary of State pursuant to section 51A(8)(b) of the Education Act 2002 (the “Exclusions Guidance”).  Paragraphs 28 and 29 of CR concern the way in which an IRP may consider evidence that was not before the responsible body (i.e. new evidence).  The Judge explained that the Exclusions Guidance states that an IRP can only consider whether a school’s decision was flawed (and so should be quashed by means of a direction) by reference to the evidence that was or ought to have been available to the IRP if it had acted reasonably.  However, the IRP may consider new evidence for the purposes of considering whether to recommend (rather than direct) that the school reconsider its decision.  Collins J then commented at paragraphs 30 and 31:

So far as it goes, that is a statement of the requirements of judicial review which is often given in text books, but it is not necessarily entirely up to date because there are circumstances where error of fact can give rise to a judicial review remedy.  The precise circumstances in which that can occur are not always easy to spell out as a general principle.  Much depends upon the facts of an individual case. 

Nevertheless, the approach in the guidance is one that is not prima facie unlawful, but it may be that it is less than entirely appropriate if every eventuality was to be covered. 

In other words, it appears that a material error of fact giving rise to unfairness (see E v Secretary of State for the Home Department [2004] EWCA Civ 49) is a ground on which an IRP may quash the decision of a responsible body (and other similar grounds surely also lie).  Not every eventuality is covered by the Exclusions Guidance.  Collins J then commented at paragraph 32 of the judgment:

I am bound to say that it is difficult to see that it is entirely satisfactory for what is a lay body to be required to apply judicial review principles in the decision that they have to make.  However, that is what Parliament has required and that is what has, so far as possible, to be applied.

The Judge then sets out paragraphs 148 to 150 of the Exclusions Guidance, which provides what might be termed a ‘super-concise guide’ to the substantive grounds of judicial review.  The grounds of illegality, irrationality and procedural impropriety are surveyed over some 216 words.  By way of contrast, the leading text book on judicial review (co-authored by Jonathan Moffett and Andrew Sharland of this parish) is some 1056 pages in length.  Is the 216 words enough for the IRP to consider, or will the 1056 pages potentially be relevant?  Collins J provides further clues at paragraph 34 of the judgment in his commentary on the ‘super-concise guide’ to judicial review principles set out in the Exclusions Guidance:

So far as irrationality is concerned, the guidance omits that part of irrationality, which is not a very good word to govern this particular aspect: namely, a failure to have regard to material consideration, or having regard to an immaterial consideration.  That is, as I say, an ingredient of what is regarded as irrationality in judicial review terms.

The answer, it would seem, is that “the principles applicable on judicial review” (s.51A(4)(c)) means exactly what it says: all the grounds of review are in play at the IRP stage, in the same way as they are before the High Court.  It does not matter that a particular ground of judicial review is not explicitly set out in the Exclusions Guidance. As the Judge puts it later in the judgment at paragraph 71, so far as the IRP’s powers of review are concerned, “the normal rules of judicial review will apply”. This is, perhaps, not surprising given the wording of the statute, but in setting it out in such stark terms it lays bare the challenge of the job that Parliament has given to IRPs.

I should emphasise that strictly speaking, Collins J’s comments are obiter.  He did not have to consider whether IRPs must consider grounds of review not explicitly referred to the Exclusions Guidance.  There are, furthermore, aspects of the judgment that may provide wriggle-room for the courts in future cases, such as the words “that is what has, so far as possible, to be applied” (paragraph 32 of the judgment) and see further the below (“slightly different situation”).  Nevertheless, it would seem sensible for all those involved in exclusions to assume that all grounds of judicial review may be relied upon before the IRP.

Procedure

The Judge in CR also makes a number of useful observations as to the applicable procedure for IRPs and responsible bodies.

First, the Judge dealt with a submission by the local authority that the second appeal approach should be applied to judicial reviews of IRP decisions – i.e. that a decision of an IRP could only be reviewed by the High Court on the grounds that there was an important point of principle or practice or some other compelling reason for the IRP’s decision to be reviewed.  Collins J held as follows:

There was a suggestion made in the skeleton argument produced by Mr Auburn that since this was judicial review of a body, which itself was acting on judicial review terms, as it were, then the approach deemed correct in R v (Cart) v Upper Tribunal [2012] 1 AC 663 is to be applied in that the second appeal approach should be adopted.  That I have no hesitation in rejecting.  This is not a Legal Tribunal, in the sense of a Tribunal of Appeal which is set up such as, for example, the First‑tier Tribunal in the Tribunal system.  It is a lay body. 

True, Parliament, in its wisdom, had decided its powers on appeal should be limited, but that does not make it the sort of body that is appropriate to be regarded as an appeal body, so that any further judicial review is limited to the principles applicable to a second appeal.  It is not anything like that.

The normal rules of judicial review will apply, although of course whether the panel has acted unlawfully will depend upon whether it has gone wrong in the manner in which it has exercised the powers that Parliament has bestowed upon it.  To that extent, this is a slightly different situation than is appropriate, or a straightforward judicial review of bodies which have a full general power.

It is unclear, however, if or in what way the fact that the IRP is in “a slightly different situation” to other public bodies will make a difference to the High Court’s approach to a judicial review of an IRP’s decision.

Second, the Judge considered a submission by counsel for the claimant that the principle tentatively set out in Calvin v Carr [1980] AC 574 should apply to the new IRP system.  In other words, because the IRP does not undertake a full merits review, it cannot cure defects in the decision-making at the first stage (by the responsible body).  The Judge rejected that submission.  In doing so, he made observations at paragraphs 76 to 77 as to the duty of the responsible body following a recommendation by an IRP (as opposed to a direction) to reconsider a permanent exclusion:

…it would, in my judgment, take very strong case for the governing body to refuse to reconsider. 

It would be, I am bound to say, difficult to conceive of a situation where that would be appropriate.  It may well be that on reconsideration they would reach the same conclusion in any given case.  But, faced with a recommendation based on full hearing, and often no doubt upon fresh material which was before the panel and considered by the panel, it would, as I say, be a bold step for the governing body to fail to follow that recommendation. 

Conclusion

IRPs face a very difficult task in reviewing a decision to permanently exclude a child.  An in-depth knowledge of public law is, it appears, essential for both applicants for review (as to which see the Matrix/City Exclusions Project which I helped to set up) and IRPs themselves.

Many thanks to Mr Alex Line of 3PB chambers for bringing the judgment to our attention.   Alex appeared pro bono for the claimant in this case.

On 10 June 2014, Judge Treu of the Superior Court of California struck down three laws relating to teacher retention as unconstitutional.  Such is the significance of the case, he began his judgment with a quotation from Brown v Board of Education (1954) 347 US 483.  The case of the plaintiffs (as there they are still called) was summarised by Judge Treu as follows:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.  Plaintiffs’ equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state“.

The laws that were struck down were:

• A “Permanent Employment Statute” whereby tenure is granted to teachers after approximately two years;
• A set of “Dismissal Statutes” which are apparently “too time consuming and too expensive” for officials to contemplate using to dismiss ineffective teachers.  The evidence before the court was that dismissing a teacher costs $50,000 to $450,000 and takes between two and ten years.
• A “Last-In-First-Out Statute”, which requires that when redundancies are to be made, the most junior staff must be dismissed before more senior staff.

The case, Vergara v State of California, was brought in the name of nine California public school students (i.e. state school students), and was funded by telecoms millionaire David Welch by means of an advocacy group called Students Matter.

The case is interesting because (as the Judge notes), it is ostensibly not about educational equality, but about the quality of education.  The evidence relating to the impact of those teachers on their students, Judge Treu held, “is compelling.  Indeed, it shocks the conscience“.  The evidence he refers to states that the 1-3% of teachers in California who are “grossly ineffective” cost the students in their respective classrooms $1.4 million in lifetime earnings per teacher (when lost earnings of all students in that class are summed).   The Economist claims that teacher quality is more important than class size, income level, or access to high-tech equipment in influencing educational outcomes.

Whatever you think of the politics of the case, it is illustration of the global trend of activist groups turning to the courts to achieve their aims.  In the UK, most of the big education cases have been reactions to changes to policy – see for example the Building Schools for the Future and English GCSE judicial reviews, and the mooted JR of the new rules on taking holidays during school terms.  The Vergara case, however, is different because it is a direct challenge to an established orthodoxy.  An equivalent legal challenge in the UK might, for example, be to the grammar school system (though I doubt the evidence in such a case would be nearly as striking as in Vergana).

Vergana is also interesting because it reflects a longer-term focus in academia on how ‘teacher quality’ is important to educational outcomes: see the world leading research produced by the Centre for Educational Policy Analysis at Stanford University.  As UK judicial reviews have tended to be reactive in nature, the evidence relating to the issue of concern has usually been scanty.  See for example the tuition fees judicial review (in which, as with the above JRs, 11KBW members were prominent).  There, Elias LJ noted: “The debate before us has consisted of each side marshalling arguments directed largely to predicting what the cumulative outcome of the various measures will be… In my judgment, at this stage it is all too uncertain and it would be wrong for the court to find disparate impact where that is neither an obvious nor even a strong inference from the facts.”

Putting aside the other grounds on which Elias LJ found that claim to be unfounded, perhaps what Vergana illustrates is the value of pursuing a case once the academics have done their research, and not before (putting aside problems of delay, which are often surmountable).  The employment tribunal fees judicial review, in the which the court in effect told the claimants to come back when (or if) there is enough evidence to determine the substantive issue, is perhaps another illustration of this idea.  The extent to which concrete evidence, rather than speculative evidence, might affect the merits of a case heard by an English court on a matter of social policy would be interesting to see.

The ruling made in Vergana is stayed pending appeal, and has caused a considerable political storm in the USA.  I wonder, though, whether in the meantime it will inspire solicitors working in education law to spend more time with education academics, or to try to persuade groups like the Sutton Trust to take the legal route?

Thomas Ogg

The Department for Education has issued new guidance entitled The academy/free school presumption: Departmental advice for local authorities and new school proposers.  

The (short) guidance available here, and should be of interest to local authorities and new school proposers.

The guidance addresses the so-called ‘free school presumption’ under section 6A of the Education and Inspections Act 2006 (inserted by paragraph 2 of Schedule 11 to the Education Act 2011).  It addresses the local authority consultation; impact assessments; seeking proposals; funding arrangements; the assessment of proposals; and the involvement of the Department of Education in the process.

Thomas Ogg

More on teacher bans

On Friday, the Department for Education began a consultation on new regulations regarding the banning of individuals from participation in the management of independent schools, including academies and Free Schools.  The consultation page is here, and remains open until 10 April 2014.

The consultation document states that the regulations are to be made because the current banning regime under section 142 of the Education Act 2002 makes “inadequate provision” in respect of the need to “uphold high standards of behaviour expected of members of the teaching profession” and to “to protect schools and the education service generally from fraud or deception“.

The DfE prefer, therefore, to rely on their powers under section 128 of the Education and Skills Act 2008 (which appear to be partially in force already).  The consultation document states that the DfE intend to use the new regulations against individuals with extremist views, and in respect of “Egregious Conduct and Professional Misconduct” that falls short of criminal conduct.

The regulations are to be made as part of a wider package of reforms, including the commencement of other sections concerning independent schools in the Education and Skills Act 2008 (replacing those under the Education Act 2002), and revisions to the Independent School Standards.

For details of the teacher banning regime generally, see this blogpost.  For an example of a recent prohibition case, see here.

Free Schools

You may be interested in this article in this article, published in Counsel magazine last year on Free Schools: “Opening a Free School: the Legal Pifalls”.

Thomas Ogg

The Department for Education has issued revised advice on the way in which teacher disciplinary panels will review misconduct by teachers.  The new advice is available here, and is accompanied by the government’s response to the consultation on the changes made to the advice.

The teacher prohibition regime is composed of sections 141A to 141E of the Education Act 2002 (read with Schedule 11 to that Act), and the The Teachers’ Disciplinary (England) Regulations 2012.  Sections 141A to 141E and Schedule 11 were inserted into the 2002 Act by section 8 of the Education Act 2011.  In short, the legislation provides that the Secretary of State may prohibit a teacher from carrying teaching work under section 141B of the 2002 Act following an investigation.  The two grounds for making a prohibition order are, broadly, that the teacher:

(a) is guilty of unacceptable professional conduct or conduct that may bring the teaching profession into disrepute, or
(b) has been convicted (at any time) of a relevant offence.

Relevant offence is defined  in effect as any offence that has any material relevance to the person’s fitness to be a teacher.  See the 11KBW Education Blog’s summary of the 2012 Regulations here, and a discussion of recent cases here.

The new advice primarily clarifies the DfE’s expectation that any sexual misconduct and any criminal conviction or caution involving indecent images of children is likely to lead to prohibition, save only in the most exceptional cases.  It also:

– Explicitly sets out that cautions as well as convictions will be taken into account by disciplinary panels, and provides guidance as to how they should be considered (pages 6-8 and 11);

– Clarifies what may be considered to constitute ‘sexual misconduct’ and ‘serious sexual misconduct’ (pages 10 & 12);

– States that behaviours associated with committing offences that did not in themselves result in a conviction are nevertheless relevant to the ‘unacceptable professional conduct’ and ‘conduct that may bring the profession into disrepute’ grounds set out above (pages 7-8).

Thomas Ogg

The School and Early Years Finance (England) Regulations 2013/3104 will come into force on 1 January 2014.  They concern the funding arrangements made by local authorities for maintained schools and early years provision in England for the financial year 2014-15.

The 2013 Regulations largely reflect the provisions of the 2012 version of the regulations. The system, broadly, is that the Department for Education allocates a Dedicated Schools Grant to local authorities, before local authorities distribute funding to maintained schools through a locally determined formula. Note, however, that the Explanatory Memorandum to the 2013 Regulations suggests that a consultation is expected to begin shortly on proposals for reforms to the funding system which could be introduced in 2015-16.

The noteworthy provisions of the 2013 Regulations are:

• the minimum funding per pupil in a local authority’s funding formula must is £2,000 per primary pupil and £3,000 per secondary pupil (regulation 13(5));

• there is a threshold of £6,000 below which schools are required to meet the additional costs of pupils with special educational needs (SEN) from their own budgets (regulation 11(3));

• special schools must receive at least £10,000 per pupil from 1 August 2014 (regulation 14(2)), although places reserved for children with SEN do not count towards a mainstream school’s pupil numbers for the purpose of calculating its budget through the local funding formula;

• a local authority may now take account of the sparseness of schools in its area in its funding formula (see paragraphs 14 and 15 of Schedule 3). There are also changes to the way that local authorities may take account of prior attainment, and the number of looked after pupils;

The regulations also have the effect of removing the ability of local authorities to reduce the funding for early education providers in the private, voluntary and independent sectors who admit children above a limit previously agreed with the local authority. According to the Explanatory Memorandum, this is to promote parental choice.

Thomas Ogg

Earlier this week the Supreme Court gave judgment in Woodland v Essex County Council [2013] UKSC 66.  The case is important because it extends the circumstances in which schools and local authorities will be liable for injuries to the children in their care that are caused by negligence [28].

Factual background and proceedings below

The Claimant, Annie Wooland, was a pupil at Whitmore Junior School, for which Essex County Council was responsible.  On 5 July 2000, when she was ten years old, she participated in a swimming lesson in which she nearly drowned.  She was resuscitated, but suffered a serious brain injury.

The swimming lessons were required by the national curriculum, and had to take place during school hours.  The school had arranged for the lessons to be provided by an independent contractor, Direct Swimming Services, and they took place outside of the school premises.  None of the staff of Direct Swimming Services were employed by Essex County Council.

The Claimant’s allegation was that the staff of Direct Swimming Services negligently failed to notice that the Claimant was in difficulties in the water, and that this was the  cause of her injury.

Essex County County were alleged to be liable for this negligence because they owed the Claimant a “non-delegable duty of care”.  The Council were successful in striking out this allegation in the High Court and the Court of Appeal (Laws LJ dissenting), but the Claimant succeeded in her appeal before the Supreme Court.  Lord Sumption gave the lead judgment, and Lady Hale gave a supporting judgment.

The non-delegable duty of care

The normal duty of care owed by schools to pupils is only to take reasonable care in the performance of the functions entrusted to the school, and only to the extent that the school performs those functions itself or through its employees.

The ‘non-delegable duty of care’, however, is a duty to procure that reasonable care is taken in the performance of the school’s functions whoever the school arranges to perform those functions.  In other words, as Lord Sumption sets out at [7], this type of “duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury”.  Such a duty is a departure from the normal fault-based principles of the law of negligence, and so must arise only exceptionally [22].  The duty arises from the pre-existing relationship between the defendant and claimant [7].

The circumstances in which the duty will arise

Lord Sumption at [23] set out five defining features of the circumstances in which a non-delegable duty of care has already been found by the courts (putting aside certain aberrant classes of case):

(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

Lord Sumption emphasised at [24] that the ‘essential element’ of the circumstances in which such a duty will arise is “control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility”.  He also stated that it would have to be fair, just and reasonable for the duty to be imposed [25].

The reasons for the Supreme Court’s decision

In addition to the reasons embodied by the principles set out by Lord Sumption above, the Supreme Court was clearly moved by the argument that it is unfair that a child who suffered injury due to negligence may, if the child attends an independent school, sue in contract; but if the child attends a state school, may only sue in tort if the tortfeasor is employed by the school [25, 30].  This was especially true given that more and more functions of state schools are now carried out by outsourced contractors [25(4)].

Limitations on the circumstances in which the duty will arise

Lord Sumption was at pains to emphasise that Woodlands does not create an open-ended liability.  It does not apply to extra-curricula activities outside school hours, or to the negligence of individuals who have not been granted control over the children (e.g. other adults on trips such as bus drivers or museum staff, in circumstances where the school staff retain control over the children) [25(3)].  For example, secondary schools are not required by the national curriculum to organise swimming lessons.  Does that mean that a non-delegable duty of care does not arise?  Or does the matter turn on whether the lessons take place during school hours or on the school site?  Some of those distinctions may prove to be rather difficult to justify, and guidance from the lower courts will no doubt be forthcoming.  In the Court of Appeal, Laws LJ in his dissenting judgment at [30] referred to the criterion being a “service which is part of the institution’s mainstream function of education”, but again, it is unclear whether the provision of swimming lessons at a secondary school would fall within that criterion or not.

Practical steps to mitigate against possible liabilities

It appears doubtful that a school will be able to acquire insurance against liability for breaches of a non-delegable duty of care committed by independent contractors (or, at any rate, for an affordable premium).

Schools should therefore consider including contractual clauses to the effect that the independent contractor indemnifies the school in respect of liabilities under the school’s non-delegable duty of care, where those liabilities arise from the negligence of the independent contractor.  An indemnity may not, however, be much help in the face of large claims such as those of Ms Woodlands (reported to be worth £3m), if the independent contractor is an individual.

It may therefore be the interests of schools to contract with much larger organisations who would be able to meet such a liability should it arise, or instead for school to ensure that independent contractors are insured to a sufficient degree such that such a large liability could be met.  This may be particularly necessary for small educational organisations such as free schools.

T Primary School in Islington has a policy of ensuring that its reception class sizes are small.  It admits 45 children each year, who are split between one reception class of 22 children, and one of 23 children.  However, when those same children reach years 1 and 2 they are taught in classes of 30, the maximum class size permitted under the infant class size limit imposed by regulations made under section 1 of the School Standards and Framework Act 1998.

T Primary School achieves this by having one mixed class of children drawn from year 1 and year 2.  In other words, years 1 and 2 (a total of 90 children, 45 from each year) are split into three classes of 30: the 30 youngest children are placed in one class; the 30 oldest children are placed in a second class; and the remaining 30 children are taught in a mixed class composed of 15 children from year 1 and 15 from year 2.

In R(DD) v Independent Appeal Panel LB Islington [2013] EWHC 2262 (Admin), an Independent Appeal Panel (a “Panel”) decided that although the admission of the claimant’s son to T Primary School would not breach the infant class size limit when the claimant’s child was in reception, given the arrangements outlined above, his admission would probably breach that limit in future years.  Consequently, the Panel treated the claimant’s appeal as a ‘infant class size appeal’, which allows an appeal to succeed on very limited grounds only, rather than an ‘ordinary appeal’ which provides for much broader grounds on which an admissions appeal may succeed.

The question for the High Court was whether it was lawful for the Panel to treat the claimant’s appeal as an infant class size appeal on the grounds of that probable future breach of the infant class size limit.  The claimant argued it was not lawful.  In the submission of the defendant and the Secretary of State (who appeared as an interested party), if the claimant were correct, T Primary School would either be forced to abandon its policy of small reception class sizes or face the likelihood that there would be more than 30 children in a class in future years.

HHJ McKenna held that it was lawful for the Panel to treat the claimant’s appeal as an ‘infant class size appeal’, under section 4 of the school admissions Appeals Code.  His reasoning, at ¶49, was based on “a close reading of the wording in section 3 and 4 of the Appeals Code and the context in which it sits”.  As to the context, HHJ McKenna noted that the infant class size limit is “plainly an important statutory policy”, and said:

“It would to my mind be wholly inconsistent with the context to construe the 2012 Appeal Code as requiring panels when considering whether they would be in breach of the limit on infant class size to look only at a breach that is likely to occur during the first academic year that the child spends at the school”.

As to the Appeals Code itself, HHJ McKenna accepted the submissions of the defendant, and in particular those of the Secretary of State, to the effect that the words used in the Appeals Code “plainly envisaged that a Panel is required to exercise a judgement as to what is to happen in the future and does not place any temporal limitation on when the breach of the infant class size limit might arise”.

Consequently, the claimant’s claim failed, and the potentially deleterious effects upon T Primary School’s reception class size arrangements (and those of other schools using a similar model) were thereby avoided.

Jonathan Moffett of 11KBW appeared for the Secretary of State.