Tower Hamlets July 20 Composite 600

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Council wins judicial review challenge over decision by Regional Schools Commissioner to back academy conversion

Somerset County Council has overturned at judicial review a decision by the South West Regional Schools Commissioner that a local middle school should become an academy.

In Somerset County Council, R (On the Application Of) v The Secretary of State for Education [2020] EWHC 1675 Mr Justice Fraser ruled against the commissioner in the High Court but said relations between the council and commissioner “seem to have deteriorated” and deplored the amount of litigation in which they had engaged.

Somerset argued that the commissioner’s order that Swanmead Community School should become an academy and join the Bridgwater College Trust was wrong as it cut across a council consultation on school provision in the area concerned.

It challenged the commissioner on six grounds and the commissioner argued that even if any were succeeded no relief should be granted since the outcome of its decisions would be unlikely to change.

Somerset held a formal review of the education provision in the Crewkerne and Ilminster areas, which used a system of first, middle and upper schools.

Swanmead was one of two middle schools and the council said that by making the decision she did the commissioner had a prejudicial effect on the review because the loss of Swanmead to an academy chain “severely curtailed Somerset's options in terms of the entire re-organisation”.

It said Swanmead's application for an academy order “was made specifically by that school to protect its own specific position within the review”, the outcome of which could have changed the age group it taught if the three school model was no longer viable.

The commissioner argued that applications for academy status are “school led” and she could not be expected to delay any decision until Somerset’s review was completed.

Fraser J found for Somerset on the ground that the commissioner failed to “have regard to the prejudicial impact upon the on-going review process” of her decisions and that she reached an irrational conclusion that there would be no negative impact on the review.

He also accepted grounds that the commissioner did not properly assess the viability of schools or give adequate reason for her decision.

Somerset was granted relief since the judge said he did not believe the outcome was academic, as the commissioner had argued, though he warned “the facts of this case are highly unusual, certainly the outcome of this judicial review should not be interpreted as granting carte blanche to those wishing to challenge the making of academy orders generally”.

Fraser J said the case showed “relations between the parties seem to have deteriorated”, with three different sets of judicial review proceedings threatened or initiated concerning the area’s schools.

He said: “It is in nobody's interests for time, money and effort to be spent challenging one another in legal proceedings in this way.

“It is certainly not in the interests of the children being educated in this part of Somerset, nor in the interest of all those involved in that important process, including staff and parents.

“Consultation, consensus and co-operation are far more likely to result in viable solutions for education in this particular area than continuing conflict and yet more litigation.”

Mark Smulian

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