The British Humanist Association & Anor v London Borough of Richmond Upon Thames & Ors

A local authority’s view that a new school would be beneficial, desirable or likely to improve parental choice does not necessarily amount to a statutory “need” triggering the duty under Education Act 2006, section 6A. “Need” imports a stronger and more compelling requirement and is a matter of evaluative judgment, assessed by reference to the overall provision of education and current availability of school places. Where proposals under section 11(1A) have been published, the authority must consider them on their merits under Schedule 2. Section 6A does not disapply that procedure. A public consultation is lawful if it gives sufficient reasons to permit intelligent consideration and response; ordinary references to places or schools being “needed” are not misleading when read in context.

The claimants sought judicial review of the Council’s decisions to approve proposals by the Roman Catholic Diocese of Westminster for voluntary aided Catholic primary and secondary schools and to lease a site to the Diocese. They argued that the Council had identified a need for new schools and was therefore required by section 6A of the Education Act 2006 to seek proposals for an Academy. Alternatively, they argued that the Council’s consultation was misleading because it suggested that such a statutory need existed. The Council maintained that additional schools were desirable but not currently necessary, and the Secretary of State argued that published section 11(1A) proposals had to be considered on their merits.

1. Claim dismissed. The Council lawfully approved the Diocese’s proposals and no duty under section 6A of the Education Act 2006 had arisen.
2. The duties under sections 13 and 14 of the Education Act 1996 are target duties leaving substantial discretion to the local authority. They require attention to sufficiency, diversity and parental choice, but do not require provision to satisfy every parental preference. Those considerations may inform the section 6A assessment, but a beneficial or desirable new school is not automatically a school which the authority thinks “needs to be established”.
3. The statutory scheme distinguishes a compelling current need under section 6A from a wider public-interest judgment that a new school would be beneficial. Section 6A is triggered by a current need, not merely a possible future need. The authority may assess the whole educational picture, including existing capacity, access to education, and the effect of new provision on other schools.
4. Once proposals under section 11(1A) have been published, section 11(8) and Schedule 2 require them to be considered. Section 6A does not remove that obligation. The authority may nevertheless consider, when deciding whether to approve the proposals, whether an Academy would better meet educational requirements or whether an Academy process is likely to do so.
5. The consultation was not materially misleading. It stated the Council’s provisional position, distinguished additional places from the need for a new school, and used “needed” in an ordinary non-technical sense. It therefore enabled consultees to give an intelligent consideration and response. The court did not need to determine whether relief should additionally be refused as a matter of discretion.