London Borough of Brent, R (on the application of) v Fed2000 & Ors

Approved proposals for converting an independent school into a voluntary aided school must be implemented in the form approved, unless the statutory machinery for modification, deferral or cessation is used.

A party who alleges that the approval was affected by illegality or procedural unfairness must ordinarily challenge the decision by judicial review. It cannot generally wait until enforcement proceedings and use the alleged public-law defect merely as a defence to the claimant’s statutory entitlement.

The court should not use its discretion to qualify a clear statutory duty or usurp the function assigned to the School Organisation Committee. Questions concerning viability and altered circumstances are for that committee under Schedule 6 to the School Standards and Framework Act 1998.

The claimant local education authority sought judicial review against the trustees of a Muslim independent school and its temporary governing body. Proposals for the school to become a voluntary aided school had been approved by the authority and the School Organisation Committee, with implementation fixed for 1 April 2005.

The trustees later sought to defer or reverse implementation. They relied on alleged funding misinformation, concerns about preserving the school’s religious ethos, the school’s lease, and its asserted lack of viability. The School Organisation Committee refused deferral. The central issue was whether the defendants remained obliged to implement the approved proposals and whether the court should decline enforcement.

1. Duty to implement. Under paragraph 5 of Schedule 6 to the School Standards and Framework Act 1998, approved proposals had to be implemented in the form approved. All necessary approvals had been obtained, and the defendants were subject to a clear statutory duty.
2. Alleged unfairness. The alleged funding misunderstanding did not invalidate the obligation. The School Organisation Committee had been made aware of the funding issue and had unanimously refused to defer implementation. The decision was reasonably open to it. The principle in R v the Bolton Justices, ex parte Scally did not apply on these facts. Any challenge to the legality or fairness of the Committee’s decision should have been brought by judicial review at the time.
3. Public-law defence. Although a public-law defence may arise in a private-law claim in appropriate circumstances, the defendants were not vindicating a private-law right. They were merely challenging the claimant’s entitlement to enforce statutory obligations. The reasoning in Avon County Council v Buscott therefore applied.
4. Discretion and statutory scheme. Viability, funding and altered circumstances were matters for the School Organisation Committee under paragraphs 5(2) and 5(3) of Schedule 6. The court should not qualify the clear statutory duty or usurp that function. The lease did not necessarily prevent voluntary aided status, and the defendants could not pre-empt enforcement by placing themselves in a position of alleged inability to comply.
5. Relief. Enforcement was appropriate because the school had continuing value to its pupils and the Muslim and wider communities, and performance might preserve it. The trustees were ordered to implement the proposals. The interim order protecting pupils from exclusion for non-payment of fees was continued to 1 November 2005, and the trustees were restrained until then from surrendering or terminating the lease. Permission to appeal was refused. The claimant received its costs of the judicial review and interim relief application.

First-instance judicial review. No earlier appellate decision is stated in the judgment. Permission to appeal was refused.