Maintained school wins High Court challenge over refusal by Education Secretary to revoke academy order

The governing body of a primary school in Walsall has won a High Court challenge over the Secretary of State for Education’s refusal to revoke an academy order.

Barristers’ chambers 11KBW, whose Joanne Clement and Leo Davidson acted for the claimant (instructed by Browne Jacobson), said it was the first successful challenge to such a refusal.

In Yew Tree Primary School, R (On the Application Of) v Secretary of State for Education [2021] EWHC 2084 (Admin) the school had in January 2019 been subject to an inspection by Ofsted which graded it as “inadequate”.

As a result of that inspection the Secretary of State made an academy order under s.4(A1) of the Academies Act 2010 on 9 April 2019.

The claimant governing body asked the Secretary of State to exercise his discretion to revoke such an order under s.5D of the 2010, but he refused in a decision letter issued on 15 December 2020.

In its legal challenge the claimant sought judicial review on two grounds:

1. The defendant’s decision to refuse to revoke the academy order was irrational.
2. In making the decision, the defendant had unlawfully fettered his discretion.

The Secretary of State was proposing, subject to the outcome of the claim, to enter into academy arrangements with its chosen sponsor, Shine Academies, in August 2021.

An Ofsted monitoring inspection had taken place in October 2019. This was a Section 8 Inspection, but it was converted into a Section 5 Inspection by the inspectors. The inspectors considered the school had improved, and the school's grading was changed from "Inadequate" overall to "Requires Improvement" overall. The October 2019 report contained much that was positive, both for the improvements the school had made, and for anticipated improvements in future.

Gavin Mansfield QC, sitting as a Deputy Judge of the High Court, noted that had the academy order not been in place at the time of the October 2019 report an academy order could not have been made on the basis of that report.

However, the academy order was already in place. Revocation of that order depended on establishing exceptional circumstances, in line with "Schools Causing Concern: guidance for local authorities and RSCs".

On ground 1 the judge said the claimant needed to prove that the decision was unreasonable in the public law sense: irrational or outside the range of reasonable decisions open to the defendant.

The governing body claimed the defendant's decision was irrational because, in summary:

i) The defendant prevented the claimant from coming within the example exceptions by suspending Ofsted inspections (because of the Covid pandemic).

ii) The defendant acted irrationally in rejecting the only available independent evidence of the school's significant and sustained improvement – i.e. the evidence of Sandwell Council.

iii) It was irrational for the defendant to make a decision on the basis that it was not clear what assistance the local authority would provide and that any further local authority support was unlikely to be sustainable in the medium to long term.

The defendant Secretary of State’s in summary was that it considered the representations made by the claimant and the local authority and evaluated them. It reached a decision that it was entitled to reach, applying its expertise. It argued that the decision could not be said to be irrational.

The judge acknowledged that although, in a sense, the defendant had prevented the claimant from obtaining the Ofsted grading required to come within the example exceptions in the guidance, he could not be blamed for doing so because of the pandemic.

“The fact that there has been a suspension of Ofsted inspections does not in itself amount to exceptional circumstances justifying revocation of an academy order,” Judge Mansfield said.

“The claimant's case is that it has made such improvements that it is now functioning at a "Good" level, but it is unable to obtain an Ofsted grading to prove it. The claimant's position is that (a) in the absence of an Ofsted inspection, the defendant should have regard to other evidence showing the performance of the school and (b) if the school is performing at a "Good" standard, and can show the requisite sustainable improvement, that should amount to exceptional circumstances.”

The judge said he accepted the claimant's position. “The defendant has to consider whether there are exceptional circumstances. If a school has done everything necessary to satisfy the second example, but fails only because it cannot get an Ofsted grading, it is easy to see why that ought to amount to exceptional circumstances. The defendant's concern must, reasonably, be with the substance of the performance of the school, not with whether there has been a formal grading by Ofsted. I accept that other forms of evidence of performance may not be as reliable as an Ofsted inspection, but it would be wrong to disregard alternative forms of evidence. The reliability of the evidence is a matter of evaluation by the defendant (subject to irrationality review).”

The defendant was entitled to hold the view that other evidence may be less robust and comprehensive than an Ofsted inspection report; “but he needed to evaluate the evidence in each case, rather than assuming any evidence is unreliable in comparison to an Ofsted report,” the judge found.

The judge said that, for reasons unclear to him, academy arrangements were not entered into swiftly after the academy order in 2019. By the time of the decision, in December 2020, some 23 months had passed since the January 2019 Ofsted inspection, and 20 months since the academy order.

“I make no criticism of the defendant for allowing that time to pass. But what it meant was that by the time of the decision the defendant had nearly two years of progress at the school to evaluate in deciding whether to revoke the academy order. The assessment of the rapid improvement that could be made by an academy sponsor needed to be determined on the basis of the facts as they were in December 2020, not has they had been in January 2019, nor even October 2019,” Judge Mansfield said.

“The claimant's (and the local authority's) response to the January 2019 report was relevant to (a) the evaluation of the school's performance as of December 2020; and (b) the evaluation of the sustainability and pace of further improvement. The claimant's case is that the events since January 2019 showed that the claimant had made the necessary improvement and that it had the ability to make rapid and sustained improvement.”

The judge said he had the strong impression that the defendant had not engaged with the representations and evidence showing the progress that the school had made since January 2019, and in particular in the 14 months since October 2019.

He also found that (i) the ministerial submission that informed the decision letter appeared focussed on the outcome of the formal 2019 Ofsted inspection, rather than on the other available sources of evidence as to the school's performance, and (ii) the treatment of Sandwell's evidence was “highly unsatisfactory”.

The judge added that “more troubling still” was the submission’s suggestion that "The LA's support to the School to date, and the additional information provided, have been offered within a wider context of the LA overall not being supportive of academisation.” [bold in original]

The judge said he was driven to the conclusion that the defendant's view of the local authority's opposition to academisation was entirely without evidential basis. “It was wrong of the defendant to treat it as a fact to which he had regard.”

The Secretary of State had been entitled to make its own assessment of the local authority's evidence, Judge Mansfield said, “but to attach weight to it because of a perceived lack of support for academisation is irrational”.

The judge concluded on ground 1: “…..Irrationality is a high hurdle in any case. However, on the basis of the flaws in the defendant's reasoning I have set out above, I am driven to the conclusion that in the particular circumstances of this case the defendant's evaluation of the evidence of the school's improvement, and of its focussed and sustained efforts to make further improvement was irrational. The refusal to revoke the academy order on 15 December 2020 was irrational.”

Judge Mansfield said he was not persuaded that ground 2 (fettering of discretion) was made out, though in the light of his decision on ground 1 that did not affect the outcome of the claim.

He made an order quashing the decision.