P v The Schools Adjudicator & Ors

An adjudicator may approve the discontinuance of a maintained school before an academy funding agreement is finalised, provided approval is conditional on the agreement being made by a specified date. The adjudicator cannot require the agreement to contain particular terms or remain in a specified form. Differences between academy and maintained-school governance or regulatory arrangements are relevant only insofar as they bear on the statutory assessment of educational standards, quality, range or diversity. There is no general maintained-sector gold standard requiring every difference to be justified. Adequate reasons may be concise where the issues addressed, test applied and conclusion reached are clear.

The claimant, a parent of pupils at St Mary Magdalene primary school, sought judicial review of the Schools Adjudicator’s approval of the school’s discontinuance in anticipation of its replacement by an academy. The challenge concerned the use of a draft funding agreement, the alleged power to impose conditions as to its content, the treatment of differences in parental and pupil protections, the adequacy of reasons, and alternative academy sites.

The Adjudicator had approved discontinuance subject to the promoters and Secretary of State making a binding academy agreement by 30 June 2006. The central issues were whether that approach was lawful and whether the Adjudicator was entitled to conclude, on balance, that educational provision would be maintained or enhanced.

1. Funding agreement. The statutory scheme permitted approval before the academy agreement was made. Approval could be expressed to take effect only if the specified event occurred by a specified date, namely the making of an agreement under section 482(1) of the Education Act 1996. The Adjudicator had no power to require that agreement to contain particular terms or to be in a particular form.
2. The Adjudicator was entitled to assess the proposal by reference to the draft agreement and the assurances given about the limited circumstances in which it might change. Naming the parties to the agreement did not amount to controlling its contents.
3. Governance and protections. The word quality in the relevant statutory and regulatory context had the more limited meaning of whether the educational provision was good or bad. Nevertheless, details of governance and regulation had to be placed before and considered by the Adjudicator insofar as they bore on standards, quality, range or diversity of educational provision.
4. The maintained sector was not a gold standard. The statutory scheme recognised and encouraged diversity. Differences in governance, complaints, special educational needs, exclusions and enforcement arrangements did not require separate justification merely because they differed from maintained-school arrangements. The question was whether, having considered them with the other circumstances, the Adjudicator was entitled to conclude that standards would be protected and enhanced and that there was no good reason to depart from the presumption in favour of approval.
5. Reasons. The duty to give reasons under section 10 of the Tribunals and Inquiries Act 1992 required intelligible and adequate reasons, applying South Bucks DC v Porter (No 2) (2004) UKHL 33. The Adjudicator’s reasons sufficiently identified the issues, the test applied, the conclusion on protections and the material relied upon. A point-by-point response was unnecessary.
6. The alternative-site suggestion was peripheral to the decision actually required. Once the Adjudicator was entitled to find that discontinuance would maintain or enhance educational provision, it was open to him to give the suggestion little or no weight.
7. The judicial review application was dismissed. The claimant’s publicly funded costs were ordered to be subject to detailed assessment. No costs were awarded to the Secretary of State or the respondent.

First-instance judicial review in the Administrative Court. The application challenging the Schools Adjudicator’s decision was dismissed.