R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council

An appeal panel deciding an infant class-size appeal must assess the particular refusal to admit the particular child. Under paragraph 12(a) of Schedule 24, the question is whether a reasonable admission authority would have made that decision in the circumstances, including the child’s circumstances, parental preference, published arrangements and practical consequences. Admission arrangements may be criticised where relevant, but the panel should not normally conduct a general judicial review of them. A judicial review interruption is exceptional. Criteria favouring siblings or proximity are not intrinsically unfair, although discriminatory arrangements require objective justification. The appeal was dismissed because the Panel had examined the general policy and failed to determine the individual refusals.

Four children were refused admission to an oversubscribed infant class at Grove Park School. Each had a sibling at the school, but Hounslow’s published arrangements prioritised children living within the school’s priority admission area. The Panel allowed the parents’ appeals under paragraph 12(a) of Schedule 24, finding the refusals unreasonable, while stating that it had not decided whether the admission criteria were unlawful.

On judicial review, Maurice Kay J quashed the decisions and remitted the appeals to a differently constituted panel. He held that the Panel had undertaken an impermissible inquiry into the lawfulness of the general criteria and should have adjourned for judicial review. The central issue before the Court of Appeal was the proper scope of the Panel’s statutory task.

Appeal dismissed. Lord Justice May gave the judgment of the court. Lord Justices Tuckey and Kennedy agreed. The Administrative Court’s quashing order and remittal therefore stood, although the Court of Appeal rejected parts of the judge’s reasoning.

1. Statutory framework. Under sections 86(2)–(4) of the School Standards and Framework Act 1998, an authority need not comply with parental preference where admission would prejudice efficient education or require an infant class to exceed the statutory limit. That does not remove the duty to take parental preference into account. Paragraph 11 of Schedule 24 also requires consideration of the published admission arrangements.
2. Paragraph 12(a) test. In a class-size appeal, the decision under appeal is the particular refusal to admit the particular child. The panel must decide whether a reasonable admission authority would have made that decision in the circumstances. This is a stringent perversity test. The circumstances include the child’s individual circumstances, parental preference, the published arrangements, the school’s practical difficulties and the needs and preferences of other children competing for the limited places.
3. Role of admission arrangements. Published arrangements may normally be treated as reasonable, but they are not immune from criticism or from consideration of relevant procedural or substantive error. The majority reasoning in R v Sheffield City Council Ex Parte H and Another [1999] ELR 511 was accepted. The Panel must, however, determine the individual appeal and should not undertake a general judicial review of the authority’s policy. The Court criticised the wider approach encouraged in The Queen on the application of South Gloucestershire Local Education Authority v The South Gloucestershire Schools’ Appeal Panel [2001] EWHC Admin 732.
4. Judicial review and human rights. It is exceptional for an appeal to be interrupted for judicial review. Panels and parents should not normally be expected or encouraged to initiate such proceedings. Authorities and panels are public authorities under section 6 of the Human Rights Act 1998, but Convention rights do not make sibling priority or proximity priority automatically decisive. Admission arrangements must be fair and fairly operated, and discriminatory effects require reasonable objective justification.
5. Application. The Panel’s decisions focused on the general adoption and operation of Hounslow’s criteria and did not decide whether refusal of admission to each particular child was perverse. They therefore failed to address the question required by paragraph 12(a). The Court considered the alleged inconsistencies in the decision letters but found no need for a formal determination of that issue. There was no order as to costs, with liberty to apply.

• Court of Appeal: Dismissed the Panel’s appeal and upheld the quashing and remittal ordered below, while rejecting the view that an adjournment for judicial review was required in principle.
• Administrative Court: Maurice Kay J allowed Hounslow’s judicial review application on 14 February 2002, quashed the Panel’s decisions and remitted the appeals to a differently constituted panel.
• School Admission Appeals Panel: Allowed the four parental appeals on 30 November 2001 under paragraph 12(a) of Schedule 24.