| SPOTLIGHT |
A High Court judge has dismissed a legal challenge over the process that led to the Education Secretary deciding in August this year to approve the transfer of Holland Park School to a multi-academy trust.
In HPSPC Ltd & Anor, R (On the Application Of) v Holland Park School [2022] EWHC 3159 (Admin) Mrs Justice Hill gave permission to the claimants to seek judicial review but dismissed the claim on its merits.
Holland Park School (HPS) is a co-educational state secondary school in the Royal Borough of Kensington and Chelsea. In September 2013, it became an academy school. It is operated by a single academy trust, meaning that the trust operates only one academy.
The effect of the decision under dispute is that HPS would cease to exist as a standalone, autonomous academy and would instead become part of a national network of academy schools. The chosen Multi-Academy Trust (MAT) was ‘United Learning Trust’.
The claimants sought judicial review over the Education Secretary’s decision to approve the transfer of the school to a MAT, alongside the decision that the MAT in question would be United Learning Trust (ULT).
The first claimant was a group of parents and carers, who argued that that they had not been properly consulted during the process that led to the decision.
The second claimant, the National Education Union ("the NEU"), is the largest independent trade union for educational professionals in England and Wales, with 76 members at HPS.
They noted that a new arrangement with ULT would be a ‘significant legal change’ for them and they were concerned as to how the school would be governed in future if the transfer was effected.
Secondly, the NEU considered that they had also not been adequately consulted during the discussions around the proposed transfer.
The defendant was the Secretary of State For Education, who relied on witness evidence from Dame Kathleen Dethridge, the Regional Director ("RD") for South-East England.
The issues considered by Mrs Justice Hill were:
On issue one, the claimants argued that there had been three breaches of the second ‘Gunning criterion’, which “individually or cumulatively rendered the consultation so unfair that it was unlawful.”
These were:
Counsel for the claimants, David Wolfe KC, submitted that information about the alternative options and why they had been rejected by the RD should have been provided in the process.
Counsel for the defendant, Jonathan Auburn KC, relied on the principle that “fairness does not always require the provision of information about alternatives”.
He argued that here, the RD was “entitled to conclude that it was sufficient to name her preferred option and the number of others which had been considered, but no further details about the alternatives.”
Analysing these submissions regarding the first proposed breach of the Gunning criterion, Mrs Justice Hill said: “The purpose of this process was not, in my view, seeking "general public participation in a wide-ranging consultation" […] Rather, it was a focussed process aimed at securing input from a relatively closely defined group of stakeholders on a specific issue.”
She concluded: “Referring to the alternative options would have enabled stakeholders to understand the context for the ULT proposal better, but I do not consider that fairness required it.”
On the second breach (alleged inclusion of misleading information), Mr Wolfe submitted that a 1 July 2022 letter was “seriously misleading in that it suggested that the RD had already decided that the HPS would join a MAT, and that the sole decision still to be taken was which the MAT would be.”
However, it was now clear that both decisions remained under consideration at the time the letter was sent, the judge noted in her analysis.
Mrs Justice Hill decided that “Representations were received that dealt with both transfer in principle, and ULT as the MAT sponsor […] this indicates that sufficient information was provided for the process to be fair.”
Providing evidence on the third proposed breach, the claimants alleged that the information provided by the defendant was “misleading in that it failed to refer to the geographical criterion the RD had applied, which was inconsistent with the ‘Sponsor Matching Guidance’.”
The judge said in her analysis: “In my view it would have been preferable if the geographical criterion applied by the RD had been made clear in the process, but its absence was not necessarily unfair.
“I also accept Mr Auburn's submission that the strong preference emerging from the stakeholders was for a local solution and it is therefore to some degree unrealistic to suggest that they would have argued for a wider geographical search had the information been clearer.”
In her conclusions on the overall fairness of the process, the judge said: “I consider it would have been preferable if the RD had given brief information about the alternative MAT options and been clearer about the geographical criterion applied during the process.
“However, taking all the circumstances into account, I consider that both of these are examples of the process being 'not perfect' or areas in which it 'could have been improved'. I am satisfied that the overall process provided 'a fair opportunity for those to whom the consultation was directed adequately to address the issue in question' (Keep the Horton General at [66], per Sir Terence Etherton MR).”
The judge said that for these reasons, the claim failed on its merits and the issue of relief did not arise. However, she nevertheless addressed both issues relating to relief in case her decision on the merits was wrong and because they were both fully argued before her.
Mrs Justice Hill said that “notwithstanding Mr Wolfe's persuasive arguments”, she considered that, on the particular facts of this case, it was highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of had not occurred.
On the third issue (‘Should the court exercise its discretion to refuse to grant the claimants relief?’) Mrs Justice Hill noted that in light of her conclusion of issue 2, issue 3 did not arise.
However, she added: “if I had concluded that section 31(2A) did not apply, I would have been persuaded by the defendant's argument that the general discretion to limit relief should be exercised to refuse to grant the claimants relief.”
In her overall conclusion, Mrs Justice Hill gave permission to the claimants to seek judicial review but dismissed the claim on its merits.
Lottie Winson
