HPSPC Limited & Anor, (R on the application of) v Secretary of State for Education

A public body that undertakes a consultation must conduct it fairly, but fairness is fact-specific and does not require perfection. Whether discarded alternatives must be disclosed depends on the purpose and context of the process, the consultees’ likely knowledge, and any prejudice caused by non-disclosure. A court must assess alleged unfairness cumulatively.

Under Senior Courts Act 1981, section 31(2A), relief must be refused where it is highly likely that the outcome would not have been substantially different absent the unlawful conduct. The court must make its own objective assessment while avoiding substitution of its view for that of the decision-maker.

The claimants sought judicial review of the Secretary of State’s decision to approve the transfer of Holland Park School from a single academy trust to United Learning Trust, a multi-academy trust. They alleged that the stakeholder engagement process was unlawfully unfair because it failed adequately to identify alternative sponsors, explain whether transfer to a multi-academy trust remained under consideration, and disclose the criteria applied.

The claim was heard as a rolled-up permission and substantive hearing. The court granted permission but had to determine whether the process met the minimum legal requirements, whether relief was barred because the outcome would highly likely have been the same, and whether relief should in any event be withheld.

1. Permission and substantive outcome. Permission to apply for judicial review was granted, but the claim was dismissed on its merits.
2. Applicable consultation principles. There is no general common-law duty to consult. Where a public body undertakes a process which is, in substance, a consultation, fairness applies. The Gunning requirements are a prescription for fairness, but they must be applied contextually rather than mechanically. The court must decide for itself whether the process was fair and assess alleged defects individually and cumulatively.
3. Alternative options. Fairness does not invariably require discarded alternatives to be identified. The relevant considerations include the purpose and scope of the process, whether the alternatives and reasons for rejecting them would have been reasonably obvious to consultees, the importance of the omitted information, and prejudice. This was a focused stakeholder process intended to inform the Advisory Board and any later ministerial decision. The existence of KAA and Harris was reasonably apparent to stakeholders, and the reasons favouring United Learning were sufficiently explained. Fairness therefore did not require further information about the alternatives.
4. Other alleged defects. The material did not materially mislead stakeholders about the scope of the process. Representations addressing both transfer in principle and United Learning showed that sufficient information had been provided. It would have been preferable to disclose the precise geographical criterion used and provide brief information about alternative MATs, but these were imperfections rather than unlawfulness. The process gave stakeholders a fair opportunity to address the issue.
5. Section 31(2A). The court treated “outcome” as including the final decision and its practical consequences, not merely participation in the consultation. If the process had been unlawful, it was highly likely that the outcome would not have been substantially different. The Secretary of State’s policy and guidance strongly supported transfer, the evidence base strongly supported United Learning, stakeholders had substantial opportunities to express their views, those views were considered, and no genuinely new material point had been identified. The statutory duty therefore would have required refusal of relief.
6. Discretionary relief. In any event, relief would have been refused because further delay threatened serious disruption to the school, its pupils and its governance, particularly given the inadequate Ofsted judgment, depleted leadership, the temporary nature of interim support and the continuing need for rapid improvement.

First-instance judicial review claim. No earlier decision under appeal was stated in the judgment.