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

A local education authority may decide to discontinue a maintained school with a view to replacing it with an academy before a funding agreement has been signed or reduced to draft form. No such condition precedent should be implied into the statutory scheme. The authority must assess the information available and decide rationally by reference to the statutory objectives and applicable guidance.

Consultation is lawful if consultees have sufficient information to understand the proposal and make an intelligent response. A later change requires further consultation only if proceeding without it would be conspicuously unfair.

The claimant, a parent 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 being made by 31 August 2008.

She argued that the Council could not lawfully decide to close the School without a draft funding agreement, and that consultees consequently lacked sufficient information about governance, admissions and curriculum. Cranston J had refused permission on the papers. The renewed application came before the court as a rolled-up hearing.

1. Substance. The claim failed on the substance and permission to apply for judicial review was refused. The applicable legislation did not require a draft funding agreement, or an equivalent document, before a council could approve closure with a view to academy replacement. Regulation 20(m) required only that approval be conditional on the making of an agreement under section 482(1) of the Education Act 1996.
2. The court should not imply a legislative condition precedent in an area involving education policy. The question was whether, having regard to the information before it, the Council acted rationally in light of section 13 of the Education Act 1996 and the relevant factors in the DCSF guide. The Council had sufficient material concerning governance, admissions policy and likely curriculum.
3. The decision in P v the School's Adjudicator [2006] EWHC 1934 Admin addressed evaluation of available information, including assurances concerning the sponsor. It did not establish a condition precedent requiring a draft funding agreement.
4. Consultation. The information available to consultees was sufficient to permit intelligent consideration and response. Applying R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213, a later change required further consultation only where it was fundamental in the sense that proceeding without a further opportunity to make representations would be conspicuously unfair. The possibility of fair banding was not fundamental on the facts.
5. The judge considered that the application would not have been out of time, but that issue was unnecessary because the claim failed on the substance. No stay was granted. The Council was awarded its costs, and permission to appeal was refused.

First-instance judicial review proceedings. Cranston J refused permission on the papers on 24 April 2008. The renewed application was heard as a rolled-up hearing by the Administrative Court. The claim failed on the substance, and permission to appeal was refused.