Durand Education Trust, R (On the Application Of) v Secretary of State for Education

The Court of Appeal dismissed Durand Education Trust's challenge to directions under paragraph 15 of schedule 1 to the Academies Act 2010 which transferred school land (the "Leisure Centre Land") to the local authority without payment of compensation. The claimant alleged breaches of Article 1 of Protocol No.1 to the European Convention on Human Rights (A1P1) by way of disproportionate deprivation and lack of legal guidance on compensation, discrimination under Article 14 read with A1P1, and breach of the public sector equality duty (PSED) under section 149 of the Equality Act 2010.

Key legal principles and grounds:

• The Court applied the A1P1 proportionality framework and Strasbourg authorities (notably Jahn and Vistiņš) and concluded exceptional circumstances justified no compensation and that the Secretary of State’s decision did not upset the fair balance.
• The absence of statutory guidance or regulations on compensation did not amount to a breach of the requirement that deprivations be "subject to the conditions provided for by law" because the exercise of paragraph 15(3)(a) was constrained by conventional public law principles and a fair procedure was in fact followed.
• Article 14 did not apply to require a different outcome because the scheduling and statutory regimes (including schedule 22 to the SSFA 1998) did not create an unlawful discriminatory scheme in the circumstances.
• The Secretary of State admitted a PSED breach but relief was refused under section 31(2A) of the Senior Courts Act 1981 because it was highly likely the outcome would not have been substantially different had the duty been complied with.

Background and parties: Durand Education Trust (DET), a charitable foundation and successor to Durand Primary School, owned land at Hackford Road which had been held for many years for the purposes of a publicly funded school. When Durand Primary converted to an academy and later ceased to operate, the Education and Skills Funding Agency made directions under paragraph 15 of schedule 1 to the Academies Act 2010 transferring parts of the site to the local authority, the London Borough of Lambeth. DET challenged the Second Direction transferring the remainder of the site (the Leisure Centre Land) to Lambeth without payment of compensation. Interested parties included Dunraven Educational Trust (the new academy trust) and Lambeth.

Procedural posture: DET issued judicial review proceedings. Permission to apply was at first refused on the papers and on renewal was refused by Lang J, but Lewison LJ subsequently granted permission and the claim was retained for determination in the Court of Appeal.

Relief sought and issues:

• DET sought relief on grounds that the Second Direction was unlawful because it breached: (i) A1P1 (disproportionate deprivation and lack of lawful guidance on compensation); (ii) Article 14 taken with A1P1 (discrimination); and (iii) the PSED under section 149 of the Equality Act 2010.

Issues framed by the court: (i) whether transfer without compensation breached A1P1 as disproportionate; (ii) whether the absence of guidance on compensation breached the rule that deprivations be "subject to the conditions provided for by law"; (iii) whether Article 14 applied; and (iv) whether relief for the admitted PSED breach should be refused under section 31(2A) of the Senior Courts Act 1981.

Court’s reasoning:

• On proportionality the court applied the Strasbourg framework, noting that absence of compensation is only justified in exceptional circumstances. The court found such circumstances here: the land had been held as public land "for the purposes of the school", DET had not put private funds into the site after it became DET in 2010, the leisure facilities dated from earlier works, and the land effectively remained held for the school’s benefit with Lambeth as a custodian. Requiring Lambeth to pay would impose a substantial burden on local taxpayers and risk an unjustified windfall to DET.
• On the quality of the legal basis for any compensation, the court held that the discretion in paragraph 15(3)(a) was not unfettered because it was subject to its statutory purpose and general public law constraints. In practice the Secretary of State conducted a full procedure, with extensive correspondence and meetings, allowing DET to make representations, so the absence of formal regulations or guidance did not render the decision unlawful.
• On Article 14, the court examined the schedule 22 regime in the School Standards and Framework Act 1998 and associated guidance and concluded DET’s position would not have been advantaged merely by its hypothetical foundation status; schedule 22 did not show unlawful discrimination in the decision-making here.
• On the PSED, the Secretary of State conceded a failure to have due regard. The Court applied section 31(2A) and concluded, on the evidence and an ex post equality impact analysis prepared by ESFA, that it was highly likely the outcome would not have been substantially different and therefore relief should be refused.

Result: the claim was dismissed. The court therefore refused the relief sought in respect of A1P1, Article 14 and, notwithstanding the conceded PSED breach, declined to grant relief under section 31(2A).

The claim is dismissed. The Court held that (i) transfer of the Leisure Centre Land without compensation did not breach Article 1 of Protocol No.1 because exceptional circumstances and the factual and legal context justified the absence of compensation and preserved the fair balance; (ii) the absence of formal statutory guidance on compensation did not breach the requirement that deprivations be 'subject to the conditions provided for by law' because the discretion was constrained and a fair procedure was followed; (iii) Article 14 did not require a different outcome; and (iv) although the PSED was breached, relief was refused under section 31(2A) of the Senior Courts Act 1981 because it was highly likely the outcome would have been unchanged.

Permission to apply for judicial review was initially refused on the papers by Griffiths J (1 November 2019) and then refused at an oral renewal by Lang J (16 January 2020). Lewison LJ granted permission on 24 February 2020 and retained the claim in the Court of Appeal for determination.