Robert Sharp, R (on the application of) v The Office of the Schools Adjudicator

In assessing whether school admission arrangements are fair, a schools adjudicator is not confined to legal rights. The adjudicator may consider reasonable but unenforceable assurances and other relevant perceptions and circumstances. Fairness requires a holistic assessment of all materially affected groups, but a detailed balancing exercise is unnecessary where a viable alternative would remedy the identified disadvantage without displacing other children and would provide additional places.

Judicial review remains available where an adjudicator misunderstands the statutory task or acts unlawfully. The court must not substitute its own assessment for an evaluation that was open to the adjudicator as a matter of public law.

The claimant challenged an adjudicator’s decision concerning the 2023 admission arrangements for two oversubscribed secondary academies. Parents of children at a related primary school had received assurances suggesting progression to the secondary schools, and some had chosen the primary school because of them. The admission authority declined to give those children priority, but the adjudicator found the arrangements unfair under paragraph 14 of the Schools Admissions Code 2021.

The adjudicator directed revision of the arrangements. The admission authority responded by naming the primary school as a feeder school and increasing the published admission numbers. The claimant argued that unenforceable promises could not found unfairness and that the adjudicator had failed to consider the effect on other children. The central issues were the proper meaning of fairness and the scope of the adjudicator’s evaluative task.

1. Judicial review. The court must approach a challenge to a schools adjudicator’s evaluative decision with appropriate caution. That caution does not exclude jurisdiction. Intervention is justified if the adjudicator misunderstands the statutory role or performs the task unlawfully, but the court must not undertake the assessment, evaluation and balancing afresh. A different view by another adjudicator is insufficient where the decision was open as a matter of public law.
2. Fairness and legal rights. “Fairness” in the admissions scheme bears its ordinary meaning. It is not limited to the recognition or enforcement of legal rights. An adjudicator may take account of facts and perceptions having different degrees of objective recognition, including reasonable reliance on assurances which could not lawfully determine future admission arrangements. That does not enforce or validate the promises; it recognises their relevance to whether the arrangements are fair.
3. Holistic assessment. Fairness ordinarily requires consideration of all materially affected groups and a measure of equality. Rights generally take priority over a merely fair outcome, but where the statutory criterion is fairness, the absence of a legal right does not prevent a claim of unfairness. The arrangements must be considered as a whole.
4. Viable alternative. The adjudicator was entitled to compare the existing arrangements with a viable alternative under which the affected children received feeder-school priority and the published admission numbers increased. Because that alternative would admit the affected children without displacing others, the adjudicator could conclude that a separate balancing exercise was unnecessary. The claimant’s hypothetical group of parents who might have acted differently was unsupported by sufficient evidence, and no member of that group was shown to be worse off.
5. Disposition. The adjudicator was entitled to find the arrangements unfair and non-compliant with the Code. The application for judicial review was dismissed.

First-instance judicial review in the Administrative Court. The application challenged the Office of the Schools Adjudicator’s decision dated 15 August 2022. The claim was dismissed.