London Oratory School & Ors v The Schools Adjudicator

The duty to have regard to a statutory code means that the decision-maker must take its provisions into account, but does not require slavish obedience. An adjudicator must also consider material evidence and arguments advanced by the admission authority, including evidence that a particular admissions method is necessary in the school’s circumstances. A decision that ignores such evidence may be quashed. A disproportionate response to a defect in interview guidance is unlawful where a targeted amendment would address the problem. The right of parents to education conforming to their religious convictions does not confer a right to admission to a particular school.

The governing body of the London Oratory School and three parents sought judicial review of the Schools Adjudicator’s determination that references to interviewing applicants aged 11 or over had to be removed from the school’s admission arrangements for September 2005.

The Adjudicator had relied on paragraph 3.16 of the Code issued under the School Standards and Framework Act 1998. The claim challenged the determination on grounds including failure to consider the school’s evidence, irrationality, disproportionality, delay and breach of Article 2 of Protocol 1 to the European Convention on Human Rights.

1. Permission and principal grounds. Permission to proceed was granted on all grounds. The claimants succeeded on grounds 1, 2, 4 and 5. Grounds 3 and 7 failed, and no determination was made on ground 6.
2. Code of practice. Section 84(3) of the School Standards and Framework Act 1998 required the Governors and the Adjudicator to have regard to relevant provisions of the Code. That meant taking them into account. It did not require slavish obedience or deference on every occasion. The Adjudicator was entitled to consider the Code’s prohibition on interviews, but had to assess it in the light of the school’s particular circumstances.
3. Failure to consider material matters. The school had presented evidence that written applications and priests’ references could be unreliable, particularly given its wide catchment area, and that interviews were an effective means of applying its religious admission criteria. The Adjudicator failed to address that material argument. Her determination was therefore unlawful.
4. Guidance and proportionality. The Adjudicator was entitled to examine the interview guidance because the school had relied on it. Her conclusion that questions concerning the Ten Commandments and Scripture were inappropriate failed the Wednesbury test. Any legitimate concern about interviewers taking account of communication or reasoning skills could have been addressed by adding guidance. Banning the entire interview process was disproportionate and unreasonable.
5. Convention rights. Article 2 of Protocol 1 did not give parents a right to secure education at the particular school of their choice. Removing interviews might affect the school’s composition over time, but would not cease to leave it a Catholic school or infringe the Convention rights relied upon.
6. Remedy. The determination dated 15 October 2004 was quashed. The objection was not remitted because, in the exceptional circumstances created by the admissions timetable and the late stage of proceedings, only one lawful outcome was available: the objection to interviewing had to be dismissed for that admission round. Permission to appeal was refused. The defendant was ordered to pay the first claimant’s costs, and £25,000 was ordered on account of costs.

First-instance judicial review proceedings in the Administrative Court. The Schools Adjudicator’s determination dated 15 October 2004 was quashed. Permission to appeal was refused.