09 OCT 2014
The Governing Body of the Warren Comprehensive School v Secretary of State for Education  EWHC 2252 (Admin); (2014) PLLR 080
Queen’s Bench Division, Administrative Court, Supperstone J
10 July 2014
The Secretary of State for Education does not commit material error by merely by preferring one set of statistics over another in formulating policy.
The claimants, a mainstream school placed into special measures by Ofsted, are judicially reviewing the Secretary of State for Education’s decision to make an Academy Order and appoint an Interim Executive Board for the school. The permission and merits were heard in a rolled-up hearing.
(2) The claimants also challenge the lawfulness of the guidance Schools causing concern – guidance for local authorities (October 2012).
(3) Ofsted made the school subject to special measures in February 2013 after inspection. Ofsted carried out a special measures monitoring inspection at the school in May 2013, which noted that the local authority had decided to make an application to the defendant for the removal of the governing body and appointment of an Interim Executive Board, which met with opposition from the governing body. The disagreement was causing significant difficulties at the school, so the local authority instead appointed nine new governors to the governing body, including three local authority members.
(4) In May 2013, the defendant informed the school that he intended for it to become an academy. In August 2013, the governing body informed the defendant that they opposed this, and preferred to work in an informal partnership with another school. The defendant explained that he found this arrangement less robust than the academy arrangement, and put forward the Loxford School as the proposed sponsor. Loxford had recently been assessed as outstanding in all areas by Ofsted, and had been approved as an academy sponsor.
(5) Ofsted carried out a second monitoring inspection at the school in October 2013 and noted progress, though standards in some areas remained well below average. The school governors voted unanimously to remain maintained by Ofsted rather than to convert to an academy. The push from the defendant for the school to be converted to an academy remained, as did the desire amongst the governors (supported in consultation by parents, staff and stakeholders) to avoid this status.
(6) In January 2014, the claimants were informed that the defendant had considered the representations made, and was proceedings with making an academy order and appointing an interim executive board.
(7) The claimants set out 5 grounds of challenge:
(1) the defendant erred in deciding to convert the school to an academy as he did so in reliance on a material error of fact, namely that statistical evidence shows that sponsored academies are more likely to deliver attainment and improved progress in schools in need of intervention than maintained schools;
(2) the guidance is unlawful as it proceeds upon the basis of the same material error of fact (permission to proceed on this claim had been refused at an earlier hearing and was not pursued);
(3) the decision to make an academy order and appoint an interim executive board is unlawful as it proceeds upon the basis of the same material fact;
(4) the defendant failed to have any or any adequate regard to the level of disruption that will be caused by converting the school into an academy; alternatively his conclusion that there would be no disruption was irrational; and
(5) the decision is premature and/or irrational.
The claim failed on all grounds.
(9) The court considered grounds (1) and (3) together. The claimants could not show that there is no evidence that sponsored academies are more likely to deliver attainment and improve progress in schools in need of intervention than maintained schools.
(10) The defendant offered evidence that results in sponsored academies are marginally higher than in a group of similar local authority maintained schools. However, the claimants argued that these statistics were unreliable as a result of academies’ including GCSE-equivalents in their results. The claimant argued that the defendant has failed to make adequate inquiries into what the statistics show, that misunderstanding material statistics is an error of law, and that proceeding on a material misunderstanding has led to unfairness. The claimants also note that the defendant is in the process of changing their statistics to reflect these differences in measuring equivalent qualifications. The claimants argued that because of the difference in counting results, there was not a rational basis for finding that academies had superior academic performance.
(11) The court found that the defendant is entitled to have regard to currently produced statistics even if he is in the process of changing them, and cannot be required to disregard the presently-produced data. The mere use of one comparison over another does not establish either factual error or a material error rendering a decision unlawful in public law.
(12) On ground (4), the court found that the risk of disruption was considered. The defendant was entitled to conclude that any disruption caused in the transition would be sufficiently minimal to be an acceptable risk for the benefits of conversion to academy status.
(13) On ground (5), the court accepted that Ofsted reports had charted improvement in the school’s performance. However, Ofsted has given no guarantee that the school will be removed from special measures at any time in the near future, only that it is possible. The defendant was entitled to conclude that the persistent under-performance meant that steps should be taken without delay to bring about a long-term improvement.
 – Late service of evidence
 – Regard for statistics
- – Use of statistics and error
 – Risk of disruption
 – Prematurity or irrationality
 – Conclusion.