article
School reorganisations
2 May 2008
Historically most local authorities (LAs) have from time to time
sought to reorganise local school provision. In recent years the
number of authorities tackling this challenging and highly emotive
issue has increased. Mark Blois, Head of Education at law firm
Browne Jacobson looks at the difficult choices facing local
authorities and schools within the context of a changing and highly
complex legal landscape.
Surplus Places
Firstly LAs have been grappling with the problem of surplus
school places. The birth rate has been falling throughout the UK
for many years which has started to create problems for many
aspects of the delivery of education services. As numbers on school
rolls drop, each school receives less money each year, yet the
costs of overheads such as heating, lighting, decoration and repair
generally remain the same even if a school's buildings are only
part full. Consequentially some LAs have been undertaking reviews
designed to strip out surplus places and combine resources through
programmes of closure or amalgamation of schools. Many such reviews
interface with the LA’s proposed participation in Building Schools
for the Future.
Failing Schools
Secondly, the government has renewed its calls for LAs to
intervene when schools are unable to achieve five good GCSEs for
30% of their pupils by switching schools to academy status or
closing them down altogether. It has been announced that there are
631 secondaries who must meet that benchmark by 2011. The original
timescale was 2012.
Against this background school closure proposals frequently
feature a difficult to resolve tension between the need to reduce
surplus places and conserve resources on the one hand and on the
other the pressures to pay more attention to educational standards
and choice. Important aspects of the legal framework relating to
school reorganisations has recently been reformed and schools
wishing to contest proposals in particular need to understand the
dynamics of a changed relationship with their LA, who is now itself
the decision maker upon its own closure proposals.
Changing role of LAs
Under section 14 of the Education Act 1996 every LA is under a
duty to ensure that there are sufficient schools available in its
area to provide primary and secondary education. However, the
education functions of the LA have been subject to a period of
significant change. In particular, LAs have increasingly been given
a principally strategic role in the management of the local school
system and have been required to become commissioners rather than
providers of education.
The old Legal Framework
Historically, where a school and/or parents raised objections
within the representation period, then the proposals required the
approval of the School Organisation Committee (SOC). At this point
schools had an opportunity to make submissions against the proposal
for closure or amalgamation. The membership of the SOC considering
the LA’s proposal then had to be unanimous on the major issues. If
the proposals were either unanimously rejected or approved by the
SOC then that was the final decision concerning those proposals,
subject to an application for judicial review.
However, where the SOC failed to reach a unanimous decision it
then referred the proposal to the Chief Schools Adjudicator. He
would appoint an adjudicator to consider the statutory proposal
afresh, and having completed his inquiries the Adjudicator would
reach a decision which would be binding on all the parties involved
and had to be implemented, subject only to an application to the
High Court for judicial review.
The new legal framework
It remains the case that significant changes in the organisation
of schools cannot be made without publication and approval of
statutory proposals. There are five stages for a statutory proposal
which cover the five main elements of local decision making –
consultation, publication, representations, decision and
implementation.
However, under the Education and Inspections Act 2006 SOC’s
decision-making powers to determine statutory proposals have now
been transferred to the LA. Those dissatisfied with a LA’s decision
then appeal directly to the School Adjudicator. Schools now have
the opportunity to challenge through the threat of judicial review
the conduct of LAs in overseeing the statutory proposal process and
their decision upon the same.
Judicial Review
This risk that statutory proposals and decisions will become the
subject of judicial review always hangs over the work of LAs in
this area and influences their relationship with the schools that
are the subject of their proposals. It is therefore important for
both LAs and schools to be aware of some of the basic principles
upon which the High Court acts when reviewing decisions relating to
school closures.
Firstly, part 54 of the Civil Procedure Rules (CPR) governs the
procedure for judicial review. The CPR provides that an application
for judicial review must be commenced with promptness and in any
event should be commenced within three months of the publication of
the decision under challenge.
Secondly, it is key to bear in mind that on a judicial review
application the court will mainly be concerned with the procedure
adopted by the decision taker and will very rarely review the
merits of the decision made. Applications for the judicial review
of school closures will only be granted if the applicant is able to
demonstrate unfairness, procedural impropriety or illegality. The
applicant cannot therefore use judicial review as a method to
appeal the decision itself.
There are four specific grounds on which the High Court may be
persuaded to quash a decision with regard to a school
reorganisation:
- Irrationality: if the decision is so
unreasonable that no reasonable decision maker could have made it.
It is worth noting that this test is a very high burden for an
applicant to try and prove, particularly so as the area of school
reorganisations is so fraught with political considerations.
- Relevant and irrelevant considerations: if the
decision maker takes into account irrelevant considerations or
fails to take into account relevant considerations, in particular
the relevant government guidance. However, the court will not
engage in a debate as to the finer points of interpretation of
government guidance. What is important is that those making
decisions make those decisions in accordance with the broad purpose
that the guidance embodies.
- Illegality: where the decision maker has acted
outside their powers or failed to comply with statutory
requirements in such a way that any decision made by them is liable
to be quashed. The statutory framework for school reorganisations
is very detailed and therefore it is possible that during the
process an error may take place. This will not automatically give
rise to the court quashing the determination of the decision maker.
In order to determine whether the decision made will be illegal the
court will consider whether Parliament intended that non compliance
would be fatal to a decision made by the decision maker.
- Bias: for a decision to be biased it does not
have to be shown that the decision was actually influenced by bias
but that the “fair minded and informed observer, having considered
the facts would conclude that there was a real possibility that the
[decision maker] was biased”.
Remedies
If it is established that the decision is unlawful in any of the
ways detailed above the court has the ability to give the applicant
a remedy. This is in the court’s absolute discretion. The usual
remedy in a school reorganisation case will be a quashing order
which means that the decision which is tainted by unlawfulness
ceases to stand and the decision maker must make it again using the
correct procedure.
Another option is a mandatory order which directs the decision
maker to consider certain matters when making its decision, such as
requiring the decision maker to have regard to government guidance.
However mandatory orders are not very often used, as a quashing
order will normally be sufficient. A Prohibiting Order may arise
when the closure happens quickly. In these cases it is possible
that interim relief will be granted preventing the decision maker
from putting the scheme into operation prior to the full hearing of
the judicial review. The court may also issue a declaration that a
decision is illegal. This does not compel the decision maker to do
anything but does clarify the legal position.
Summary
The law relating to school reorganisations is vast and
complicated. With such contentious issues at stake it is inevitable
that some statutory proposals and decisions will be considered to
be unlawful or to have got the balance wrong. In such a
procedurally complex area it would be prudent to seek specialist
legal advice.
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