Elphinstone, R (on the application of) v City of Westminster & Ors

A statutory school-closure process does not imply a requirement for an academy-specific draft funding agreement before the decision-maker may approve closure. Where the governing legislation permits approval subject to a later funding agreement, the agreement may itself be made a condition.

Consultation is lawful if consultees have sufficient information to give intelligent consideration and an intelligent response. The test is not whether further detail could have been supplied. A later change to proposals calls for renewed consultation only if it is fundamental. A reserved possibility of fair banding did not fundamentally alter an agreed comprehensive, all-ability admissions policy where any change still required the local authority’s agreement.

The claimant, the mother of pupils at Pimlico Community School, sought judicial review of Westminster City Council’s decision to discontinue the maintained school and replace it with an academy, conditional on a funding agreement with Future Academies.

Permission was refused on paper and again by the High Court. The latter decision was given by a deputy High Court judge in [2008] EWHC 1287 (Admin). Laws LJ then granted permission, retained the substantive judicial review in the Court of Appeal, and the court heard it urgently.

The challenge alleged insufficient information about the proposed academy, particularly its funding agreement, governance and curriculum. It also alleged that a later memorandum of understanding materially reversed the earlier position on fair banding in admissions, thereby invalidating consultation and the closure decision.

1. The application for judicial review was refused. The court upheld the deputy judge’s conclusions.

2. Neither section 482 of the Education Act 1996 nor the closure regime imposed an implied condition that a draft funding agreement, specific to the proposed academy, had to exist before approval of discontinuance. Regulation 20(m) of the School Organisation (Establishment and Discontinuance of Schools) (England) Regulations 2007 expressly allowed the final funding agreement to be a condition of approval. The court explained that P v The Schools Adjudicator, [2007] LGR 346 (Admin), had decided a narrow issue on its facts and did not establish the suggested precondition.

3. Paragraph 11 of Schedule 4 to the Regulations concerned details of the schools or colleges at which displaced pupils would be offered places, including interim and special-needs arrangements. It did not require the extensive details of academy governance and curriculum advanced by the claimant. In any event, the available prospectus and expression of interest gave sufficient information about sponsor control of governance, representation, the intended curriculum and specialisms.

4. Applying the consultation requirements stated in R v North and East Devon Health Authority, Ex parte Coughlan, [2001] QB 213, the information enabled intelligent consideration and response. The legal test was sufficiency, not whether more information could have been obtained.

5. The admissions challenge also failed. Clause 7 of the memorandum required both the Council’s agreement and the Secretary of State’s consent before future admission criteria could be changed. The fair-banding wording was not a fundamental alteration of the agreed all-ability and locally based policy. It was, at most, a drafting recognition that fair banding might later assist a balanced all-ability intake. The court agreed with the fundamental-change approach adopted in R (Smith) v East Kent National Health Service Trust, [2002] EWHC 2640 (Admin).

6. The court did not decide the respondents’ delay objection, although it observed that there was apparently much to be said for it.

• Court of Appeal (Civil Division) Laws LJ granted permission for judicial review and retained the substantive hearing. The court refused the application for judicial review.
• High Court, Queen’s Bench Division (Administrative Court) A renewed application for permission was refused by Mr Kenneth Parker QC sitting as a deputy High Court judge: [2008] EWHC 1287 (Admin).
• High Court, Queen’s Bench Division (Administrative Court) Cranston J had earlier refused permission on the papers.