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31 JAN 2013

The British Humanist Association and Another v London Borough of Richmond Upon Thames and Others [2012] EWHC 3622 (Admin); (2013) PLLR 009

Education - Need - Education Act - Academies

The Court drew a distinction between there being a ‘need' for a secondary school in a particular area, and a general determination that it might be beneficial for a new school to be opened. The Defendant had not acted unlawfully in determining that there was no need for a new school, but it would be beneficial for a new Catholic school to be developed.

14 December 2012

Administrative Court

Sales J

(1)        By this claim, the first Claimant, the British Humanist Association, and the second Claimant, the Richmond Inclusive Schools Campaign (‘RISC'), challenged the defendant's decision to:

(a)        approve the proposals of the Roman Catholic Diocese of Westminster (‘the Diocese') to establish a voluntary aided secondary school designated as being a school for Roman Catholics and a similar primary school; and

(b)        to lease land (‘the site') to the Diocese for 125 years at a peppercorn rent to provide the schools with premises.

(2)        The Diocese's proposals were made under section 11(1A) of the Education Act 2006. The Diocese proposed a policy for the secondary school whereby priority would be given to Catholic children, whilst the primary school would admit 20 Catholic children per form, with 10 children admitted per form without reference to faith.

(3)        The Claimants were concerned that the decision would mean that new state funded schools would use the site and operate admissions policies primarily focusing on Catholic children, rather than being more widely available to children in the Council area.

(4)        The claim was pursued on two grounds:

(a)        the Council had failed, as required by section 6A of the Education Act 2006, to invite proposals for the establishment of an Academy school. As such, the Council was not entitled to approve the Diocese's proposals for the formation of two schools as voluntary aided schools; and, in the alternative,

(b)        if the Council had not identified a need for two new schools, the consultation carried out was flawed, as it gave the false impression that such a need had been identified.

(5)        The Council maintained that it was not under a duty to invite proposals to establish Academies, and its consultation was not misleading or unlawful. A Council press release on 6 January 2012 had referred to a commitment to consult the public about whether the site should be used for a catholic school or some other purpose. The Council had issued a consultation document for a period from 20 January 2012 to 16 March 2012.

(6)        The Secretary of State was given permission to intervene, and submitted that ‘where a third party organisation reaches the point of publishing proposals under section 11(1A) of the 2006 Act to establish a voluntary aided school, the statute requires the relevant local authority to proceed to consider those proposals on their merits'.

(7)        HELD: The challenge was dismissed.

(8)        The Court identified there to be a distinction between a local authority having a ‘need' for a new school, and a more general assessment as to whether it might be beneficial for a new school to be established. The Court held that there was no doubt that the Council had acted lawfully in assessing that a new school did not need to be established in its area, and thus no duty had arisen under section 6A of the Education Act 2006. The Council's assessment could not be held to be irrational or unlawful. The Court held that there was no suggestion that the rights of the proposers or the local authority obligations were subject to section 6A and the local authority therefore had only to consider such proposals on their merits.

(9)        The Council had not erred in law in the way in which it had approached the question of whether to approve the Diocese's proposals.

(10)     The Court held that the consultation paper made clear that it did not think there was a need for a new state school in the area, and that introducing a Catholic school would increase diversity and parental choice. Nothing in the paper was said to indicate that there was a need (under section 6A) for the establishment of a new school. The Court also considered that there was nothing in the consultation paper that misled the public into believing that the Council believed there to be a ‘need' for new Catholic schools.

Claim dismissed.

Key Paragraphs

[18] - Dismissed.

[47] - Consultation paper clear.

[49] - No need new school.

[53] - Not misleading.

[65] - Need and beneficial. 

[70] - Lawful assessment.

[77]-[78] - Proposals on merits.

[80] - No error in law.

[86] - Not misleading.

[87] - Conclusion.    

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