British Humanist Association v LB Richmond and ors [2012] EWHC 3622 (Admin)

December 17th, 2012

In this judgment (handed down on 14 December 2012), Sales J has rejected a challenge to the decision of the London Borough of Richmond accepting proposals from the Roman Catholic Diocese of Westminster for the establishment of two voluntary-aided Roman Catholic schools (1 primary, 1 secondary) in Twickenham. 

The British Humanist Association (“BHA”) claimed that Richmond was not entitled to accept those proposals, but was under a duty, by virtue of s 6A of the School Standards and Framework Act 1998 (“SSFA 1998”) to invite proposals for the establishment of an Academy (or Academies).  The BHA argued that if the proposed schools were established as Academies, there would be many more non-faith places since the Secretary of State will normally require any faith Academy to allocate 50% of its places without reference to faith, whereas under the Diocese’s proposals 2/3rds of the primary school places and all of the secondary school places would be allocated by reference to faith. 

The case turned on s 6A(1) of the SSFA 1998 (inserted by the Education Act 2011 with effect from 1 February 2012), which provides:

“(1) If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.”

Sales J disagreed, holding that there was a difference between the local authority concluding that the new schools would be desirable (having been presented with proposals under s 11(1A) of the SSFA 1998 for consideration) and the local authority concluding that a new school was ‘needed’.  There was also a difference, Sales J observed with reference to the authority’s public consultation paper, between the local authority considering that new school places were needed and the authority thinking that a new school was needed. 

In this case Sales J accepted that although the local authority had identified a need for new school places that would in part be met by the Diocese’s proposals, and although it had concluded that the proposed new schools were desirable, it had not identified a need for a new school within the meaning of s 6A(1) and did not therefore have to invite proposals for an Academy.

In the light of an intervention by the Secretary of State for Education, Sales J also gave guidance on how s 6A inter-relates with s 11.  Sales J accepted that, where a person wishing to establish a voluntary-aided school published proposals under s 11, the local authority was under a duty to consider those proposals on their merits as required by s 11 and Sch 2 to the SSFA 1998, and to complete the procedure laid down in those provisions, even if the authority came to the view in the course of that process that a new school was ‘needed’ within the meaning of s 6A(1).

A further point of note from the judgment concerns an initially surprising subsidiary argument by BHA that, in approving the proposals, the local authority had taken into account an irrelevant factor by having regard to the effect that the proposals would have on other state secondary schools in its area.  The BHA argued that as 7 of the authority’s 8 secondary schools were Academies (funded by the Secretary of State) only the Secretary of State could properly be concerned with any adverse effect on those schools.  Sales J rejected this argument on the basis that it was still the local authority who was under a duty to secure sufficient schools for the area, having regard to the various particular needs of the area, under ss 13 and 14 of the Education Act 1996.  He considered it plain that the authority could therefore take into account the effect on other schools in its area, even if it was no longer responsible for funding them.

Clive Lewis QC appeared for the LB Richmond; Robin Hopkins appeared for the Secretary of State; Tom Cross also advised the Secretary of State at an earlier stage of proceedings, but was unable to do the hearing.

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