Academy Trust for Hockerhill Angloeuropean College, R (on the application of) v The Office of the Schools Adjudicator

Where the School Admissions Code defines boarding and day places by reference to overnight board and lodging, that definition applies even if the surrounding provision is expressed as guidance rather than a mandatory requirement. A footnote may perform a substantive definitional function and cannot be treated as non-binding merely because it is attached to non-mandatory text. Pupils receiving extensive daytime facilities, selected because of boarding needs, remain day pupils if they are not provided with overnight board and lodging. Any gap or perceived unfairness in the Code is a matter for amendment by the Secretary of State, not judicial re-interpretation.

The claimant academy trust challenged an adjudicator’s decision concerning its admission arrangements for approximately 80 pupils described as daily boarders. Those pupils received facilities in boarding houses and services exceeding those ordinarily available to day pupils, but generally did not stay overnight.

Hertfordshire County Council objected that the arrangements failed to comply with paragraph 1.40 of the School Admissions Code and its footnote 34, which stated that boarding places were places where pupils were provided with overnight board and lodging. The central issue was whether that footnote was a binding definition, despite being attached to wording which permitted maintained boarding schools to set separate admission numbers.

1. The claim was dismissed. The adjudicator’s decision was lawful and inevitable on the wording of the School Admissions Code.
2. Section 84 of the School Standards and Framework Act 1998 requires the Secretary of State to issue an admissions code. Although section 84 does not directly apply to academies, the academy’s contractual arrangements required compliance with the Code. The objection jurisdiction under section 88H therefore applied.
3. The claimant argued that paragraph 1.40 was guidance because its operative wording used “can”, and that footnote 34 was consequently non-mandatory. The court rejected that analysis. The footnote clarified the meaning of “boarding places” and “day places”. It therefore operated as a definition, irrespective of its presentation as a footnote or its attachment to otherwise non-mandatory wording.
4. Footnote 34 required boarding places to involve overnight board and lodging. The claimant’s daily boarders generally did not stay overnight and therefore did not qualify as boarders within the Code, even though they received substantial boarding-related facilities and were selected by reference to boarding need.
5. The court recognised that the arrangements were desirable and that treating the pupils as day pupils created financial difficulties because compulsory charges could not be imposed for the relevant services. The Code nevertheless contained a gap which might justify amendment by the Secretary of State. That policy consideration could not alter the legal meaning of the existing definition.
6. The defendant was awarded costs, summarily assessed at £4,250.

The judgment states that an adjudicator had reached a decision in 2008 concerning the same arrangements. Hertfordshire County Council subsequently objected under section 88H of the School Standards and Framework Act 1998, leading to the adjudicator’s decision challenged by this judicial review. The Administrative Court dismissed the claim.