R (on the Application of Boulton & Anr) v Leeds School Organisation Committee

Permission for judicial review may be granted where an arguable error of law is identified, even though the claimant has no general right to an oral hearing. A decision-maker may nevertheless have to consider inviting or accepting oral submissions where they may assist, particularly if an arguable legal error is raised. Pupils may have sufficient interest to challenge a decision affecting their schooling. Alleged abuse of process is distinct from standing and requires careful analysis. The limitation period runs in accordance with Burkett, and promptness must be handled with care. Where the challenged reorganisation is substantially complete, relief may properly be confined to declaratory relief.

The appellants sought judicial review of a decision of the Leeds School Organisation Committee concerning school reorganisation. Mr Justice Maurice Kay had initially refused permission. The Court of Appeal granted permission and reserved its reasons.

The issues included whether objectors had a right to make oral submissions, whether pupils had sufficient interest to seek judicial review, whether the claim was abusive, when time began to run, what relief could realistically be granted, and the appropriate forum for the substantive application.

1. Permission and oral submissions. The court rejected the submission that every objector had a right to be heard orally. It was, however, arguable that the Committee could hear an objector orally where it considered that oral submissions would assist. If an arguable error of law existed, failure to consider inviting or accepting particular oral submissions could itself be unlawful. The claim was to be amended accordingly.
2. Standing. Although parents would ordinarily be expected to make submissions about school reorganisation, nothing in the statute prevented the Committee from hearing pupils’ views. Schools are provided for pupils, and it was defensible that pupils might have sufficient interest to seek judicial review of a decision affecting their schooling.
3. Abuse. The passage relied on from R v Richmond LBC, ex p JC [2001] ELR 13, para 31, concerned abuse and discretion rather than standing. The court regarded it as obiter and not easy to apply. It was not persuaded that the existence of sufficient interest and ineligibility for public funding necessarily made the claim an abuse. The concept of a device required further elaboration.
4. Time. The claim had been brought within three months of the decision. Applying Burkett [2002] 1 WLR 1593, the court rejected the contention that time began to run earlier. Promptness, and the power under section 31(6), had to be handled with care.
5. Relief and forum. Even if the claim succeeded, no relief should disturb a school reorganisation that was almost complete. Relief was therefore limited to declaratory relief. The court granted permission under CPR 52.15(3), with the consequence specified in CPR 52.15(4), and directed that the application be heard by a divisional court.

1. Court of Appeal (Civil Division): Permission granted under CPR 52.15(3), following the initial refusal of permission by Mr Justice Maurice Kay. The claim was to be amended, relief was confined to declaratory relief, and the application was directed to a divisional court.