The Governing Body of the Warren Comprehensive School, R (On the Application Of) v Secretary of State for Education

The claim challenged the Secretary of State's decisions to make an Academy Order under section 4(1)(b) of the Academies Act 2010 and to appoint an Interim Executive Board under section 69(1) of the Education and Inspections Act 2006 (and Schedule 6). The claim advanced multiple grounds: that the Secretary of State relied on a material error of fact in asserting that sponsored academies outperform maintained schools; that guidance under section 72 of the 2006 Act was unlawful (abandoned); that the decisions failed to take proper account of likely disruption; and that the decisions were premature or irrational.

The court found that the statistics relied on by the Secretary of State were accurately stated and provided a rational basis for his view that sponsored academies tend to improve performance; it was not irrational to have regard to performance data compiled under the existing accountability framework (including GCSE equivalents) even though that framework was to change. The court refused to admit late additional statistical evidence. The Secretary of State had considered the risk of disruption and the timing of intervention and was entitled to conclude that academy conversion would best secure long-term improvement. Permission was granted on the grounds raised but, on the merits, the claim failed and was dismissed.

Background and parties. The First Claimant was the governing body of the Warren Comprehensive School (the Warren), a maintained secondary school placed in special measures following an Ofsted inspection in February 2013. The Second Claimant was the London Borough of Barking & Dagenham. The Defendant was the Secretary of State for Education. Interested parties included the governing bodies of Robert Clack School and the Loxford School of Science & Technology. The Warren had received intervention and external support and had been the subject of monitoring inspections.

Nature of the application. The Claimants sought judicial review of: (i) the Secretary of State's decision of 6 January 2014 to make an Academy Order under section 4(1)(b) of the Academies Act 2010 and to appoint an Interim Executive Board under section 69(1) and Schedule 6 of the Education and Inspections Act 2006 with effect from 8 January 2014; and (ii) the subsequent decision of 12 May 2014 to proceed with academy conversion sponsored by Loxford Academy Trust. The Claimants also originally challenged statutory guidance under section 72 of the 2006 Act but permission to pursue that ground was refused earlier and it was not pursued at this hearing.

Procedural history. Interim relief preventing appointment of the IEB and implementation of the Academy Order was granted by Carr J on 8 January 2014; Collins J granted permission to apply for judicial review on 15 January 2014 and managed interim relief and stays which were subsequently varied and lifted; the claim proceeded on an expedited basis to a rolled-up hearing before Supperstone J.

Issues for determination. The court framed the principal issues as: (i) whether the Secretary of State was in material error of fact by relying on statistics that purported to show sponsored academies improve standards faster than maintained schools (Grounds 1 and 3); (ii) whether the Secretary of State failed to have proper regard to or irrationally ignored the disruption conversion would cause (Ground 4); and (iii) whether the decision was premature or irrational in light of monitoring evidence and imminent examination results (Ground 5).

Evidence and evidential rulings. The Claimants sought to admit late statistical analysis (a second witness statement from Mr Stewart) intended to show that once non-GCSE equivalents were excluded the apparent advantage of sponsored academies disappeared. The court refused to admit that late evidence because no satisfactory explanation was given for lateness and it breached an earlier case management order.

Court's reasoning and conclusions. The judge accepted that the statistics cited by the Secretary of State were accurate and that alternative comparisons could be made, but held that use of one comparison rather than another does not alone establish a material error of fact. The Secretary of State had also published analysis comparing sponsored academies to similar maintained schools for earlier years; those comparisons produced broadly similar results when restricted to GCSEs. The court further held it was not irrational for the Secretary of State to rely on performance measures compiled under the prevailing accountability framework (which at the time included certain equivalent qualifications), since pupils and school programmes were being assessed under that framework. The decision letter showed consideration of disruption and timing; the Secretary of State was entitled to conclude the long-term benefits of conversion outweighed short-term disruption. Although permission was granted to challenge the decisions, the substantive judicial review failed and the claim was dismissed.

Subsidiary findings: the court refused admission of the late statistical witness statement, accepted that differences in comparative methodology were available but not decisive of unlawfulness, and recorded that the school remained in special measures at the date of judgment.

This first-instance judicial review claim was dismissed. The court held that the Secretary of State had a rational basis for his assessment that sponsored academies can deliver improvement, that it was lawful to rely on the available performance statistics compiled under the existing accountability framework, that the Secretary of State had addressed concerns about disruption and timing, and that refusal to admit late additional statistical evidence was appropriate. Permission had been granted to pursue the amended grounds but, on the merits, the claim failed.

Not an appeal. Procedural history at first instance: interim relief granted by Carr J on 8 January 2014; permission to apply for judicial review granted and interim relief managed by Collins J on 15 January 2014 (stay initially granted and later varied and lifted by Collins J on 15 April 2014); rolled-up hearing before Supperstone J resulting in this judgment ([2014] EWHC 2252 (Admin)).