DD, R (on the application of) v Independent Appeal Panel of the London Borough of Islington & Anor

An infant class size appeal is not confined to prejudice arising in the child’s first academic year. When deciding whether admission would breach the statutory infant class size limit, an appeal panel may and must consider likely breaches in subsequent academic years. The ordinary meaning of section 4 of the Appeals Code, read in its statutory context, imposes no temporal limitation. The statutory policy favouring infant classes of no more than 30 pupils takes priority over parental preference. A panel must therefore apply the narrower infant class size appeal test where the admission authority’s decision is based on prejudice arising from a present or future breach.

The claimant sought judicial review of an appeal panel’s decision dismissing her appeal against refusal of a place for her son at a primary school. The school admitted 45 pupils in reception through two classes of 22 and 23, which would later feed into full infant classes. The panel accepted that admission would not breach the limit in reception but would probably cause a breach in years 1 and 2. It therefore applied the infant class size appeal procedure in section 4 of the Appeals Code rather than the ordinary procedure in section 3.

The claimant argued that only prejudice arising in the first academic year could trigger the narrower procedure. The central issue was whether future infant class size prejudice was relevant under the 2012 Appeals Code.

1. Claim dismissed. The appeal panel correctly treated the claimant’s appeal as an infant class size appeal.
2. The interpretation of the Appeals Code depended on its ordinary and natural meaning, read as a whole and in the context of the statutory scheme. Earlier legislation and earlier versions of the Code did not justify importing a temporal restriction into the 2012 Code.
3. The statutory policy limiting infant classes to 30 pupils was important. It would be inconsistent with that policy to require a panel to consider only a breach likely to occur in the child’s first academic year.
4. The wording of section 4 envisaged a judgment about what would happen in the future. It contained no limitation confining the relevant breach to the first year of admission. Future prejudice was therefore relevant when deciding whether the infant class size appeal procedure applied.
5. The panel was entitled to consider the subsequent two academic years when deciding whether admission would breach the infant class size limit. Its direction was lawful and the judicial review claim failed.
6. The court rejected, in any event, the proposed discretionary grounds for withholding relief. There was no real prejudice from delay, a fresh appeal would not necessarily succeed applying the test outlined by Keene LJ in Smith v NE Derbyshire [2006] EWCH Civ 1291, and any disruption would have been modest.

Permission for judicial review had previously been refused on paper and at an oral renewal. On 9 May 2013, Goldring LJ granted limited permission on ground 1. The High Court then dismissed the substantive claim.