B, R (on the application of) v Hertfordshire County Council

Under section 96 of the School Standards and Framework Act 1998, the condition that a child has been refused admission to “each school” providing suitable education within a reasonable distance means every such school, not merely one school. The power is therefore exceptional and is engaged only where the statutory conditions are satisfied in relation to all relevant schools. Section 96(1) identifies when the power may be exercised, while section 96(2) identifies the school to which a direction may be given. Where section 96 is not engaged, the local authority has no discretion to exercise and cannot lawfully direct admission.

B’s parents preferred a selective school for him, but he failed its entrance examination and an independent appeal panel dismissed their appeal under section 94 of the School Standards and Framework Act 1998. They then asked Hertfordshire County Council to direct the school to admit him under section 96. The authority declined, stating that it would not interfere with the appeal panel’s decision. On the renewed application for permission to seek judicial review, the court had first to determine whether section 96 was engaged where B had been refused admission to one school but offered a place at another suitable school within a reasonable distance. A further issue concerned alleged unlawful fettering of the authority’s discretion.

1. The renewed application for permission to apply for judicial review was dismissed. The decisive issue was the construction of section 96(1) of the School Standards and Framework Act 1998.
2. The word “each” in the phrase “each school which is a reasonable distance from his home and provides suitable education” means every school, not “a” school. The statutory condition must therefore be satisfied in relation to every relevant school. B had been offered a place at another suitable school within a reasonable distance, so section 96 was not engaged.
3. Section 96(1) defines the circumstances in which the power may be exercised. Section 96(2), read with the words inserted by paragraph 10 of Schedule 4 to the Education Act 2002, defines the type of school to which a direction may be given. A direction may be made to a school which previously refused admission, but not to a school from which the child was permanently excluded or for which the local authority is the admission authority.
4. The distinction between “each school” in section 96(1) and “a school” in section 96(2) was deliberate. The limited practical reach of the provision did not make this construction absurd. The legislative purpose was consistent with an exceptional power for the small minority of children unable to obtain a suitable place within a reasonable distance.
5. Because section 96 was not engaged, the authority had no discretion to exercise and could lawfully give only the answer that it could not direct admission under that section. The alleged fettering of discretion therefore did not arise. The court observed that, had section 96 been engaged, the alleged blanket policy might have required more favourable consideration, but the point was unnecessary to decide.

Newman J initially refused permission on the papers. The claimant renewed the application, which was dismissed by the Administrative Court in this judgment.