| SPOTLIGHT |
The Court of Appeal recently handed down judgment rejecting a London council’s attempt to close one of its primary schools that is in the process of becoming an academy. Alan Bates explains why.
Pooles Park Primary School (“the School”) was rated ‘Inadequate’ by Ofsted following an inspection in November 2022. This triggered a statutory duty for the Secretary of State for Education to make an Academy Order in respect of the School, which is situated in the London borough of Islington and maintained by the local authority (“the Council”). The legal effect of the Academy Order was to start a process directed at converting the School into an academy school sponsored by a multi‑academy trust outside of the local authority’s control.
At around the same time, the Council was consulting on options for managing, within its area, the London-wide problem of falling primary school rolls and the consequent need to reduce over-supply of school places. The Council ultimately decided that it wished to close the School, doing so as part of an overall strategy for reducing surplus school places. The Council therefore requested the Secretary of State to revoke the Academy Order so that the Council would be able to carry out its wish.
The then Secretary of State refused to do so, instead selecting a local multi‑academy trust (“MAT”) to become the School’s sponsor. The selected MAT specialises in providing education for children with complex special educational needs (“SEN”), in both mainstream schools and special schools. The MAT had put forward a proposal to operate the School in tandem with one of its existing local mainstream schools, sharing resources between the two schools and attracting additional pupils and funding by offering places to children with complex SEN who might otherwise be without a suitable school place. The Secretary of State’s Regional Director for London believed that this innovative proposal was an attractive one, given the growing demand for specialist provision for children with SEN and the shortage of places in special schools.
The Council brought a judicial review claim challenging the Secretary of State’s refusal to revoke the Academy Order. The Council argued that the MAT’s financial modelling underpinning its proposal was flawed and unrealistic, and that the Secretary of State was unlawfully undermining the Council’s ability to carry out its statutory remit to manage the efficient provision of school places in its area.
On 12 July 2024, the High Court (Choudhury J) dismissed the Council’s challenge: [2024] EWHC 1798 (Admin). The Judge held that it had not been necessary for the Minister who took the decision on behalf of the Secretary of State to be provided with, or to have sought to test the robustness of, the MAT’s financial modelling. Under the policy being applied by the Secretary of State at the time, a school that had been rated Inadequate should, save in exceptional circumstances, be converted to an academy and given the opportunity to improve with the support of its sponsor.
The Council applied to the Court of Appeal on an expedited basis for permission to appeal, arguing that the Judge had been wrong to find that the Minister had been provided with all the information that it was legally necessary for her to consider.
In its judgment ([2024] EWCA Civ 951), the Court of Appeal (Macur and Andrews LJJ) rejected the Council’s appeal. The judgment upheld the High Court’s conclusion that the Minister was provided with the “salient facts” and that the law did not require that she be shown, or that she seek to test, the MAT’s financial modelling or the assumptions underlying that modelling.
The interim relief that had been preventing the School from converting to an academy has therefore come to an end. Pupils who started the school summer holiday period not knowing whether their School would be closing this Autumn will now be returning there in September knowing that the School’s future is more secure.
Alan Bates is a barrister at Monckton Chambers. He represented the Secretary of State in both the High Court and Court of Appeal.
