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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> H, R (on the application of) v Cornwall County Council [2005] EWHC 3313 (Admin) (05 December 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/3313.html Cite as: [2005] EWHC 3313 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		5th December 2005

1. MR JUSTICE LLOYD JONES: This is an application for the judicial review of a decision of the Cornwall County Council School Admission Appeals Panel made on 19th September 2005. It was a decision to dismiss the appeal of the claimant against a refusal of the admissions authority, Cornwall County Council Education Authority, to admit her son, to whom I shall refer as M, to a school in Cornwall, to which I shall refer as A School.
2. The claimant's son M is a former pupil at the A School. A School is a community school within the meaning of the School Standards and Framework Act of 1998. The admission authority within the meaning of section 88 of the 1998 Act for that school is the local education authority, the Cornwall County Council. M was permanently excluded from the A School in May of 2005. An appeal against that permanent exclusion was heard on 24th June 2005 by an independent appeal panel established under the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002, Statutory Instrument 2002 No 3178. Where a child is permanently excluded from a maintained school, and his or her parent appeals against that permanent exclusion to an independent appeal panel, the appeal may decide that the exclusion should not have occurred, but nevertheless not direct the child's reinstatement "because of exceptional circumstances, or for other reasons it is not practicable to give a direction requiring [the pupil's] reinstatement." (regulation 6 paragraph 6 of the Education (Pupil Exclusion and Appeals) (Maintained Schools) (England) Regulations 2002).
3. In carrying out its functions an appeal panel deciding an appeal against a permanent exclusion must, as a result of regulation 7(2) of those regulations, have regard to any guidance given from time to time by the Secretary of State. Current guidance includes paragraphs 128 and 129:

"128. In some cases it will not be practical for the panel to direct reinstatement because the parent has made clear he or she does not want it, or because the child has become too old to return to the school.

129. There may be exceptional cases where the panel considers that the permanent exclusion should not have taken place, but that resinstatement in the excluding school is not a practical way forward in the best interests of all concerned. This could include situtaions where there has been an irretrievable breakdown in relations between pupil and teachers; or between the pupil and other pupils involved in the exclusion or appeal process. Before deciding that there are exceptional circumstances the panel should try to establish what efforts have been made to address a possible breakdown in relations. Balancing the interests of the pupil and the whole school community may suggest that reinstatement would not be the most sensible outcome in such cases. In considering whether such exceptional circumstances exist the panel should consider representations from the governors, the headteacher and from the parent (or pupil if 18 or over)."

4. The decision of the panel, to which I shall refer as the exclusions panel, was set out in a letter dated 27th June 2005 addressed to the claimant. The panel concluded that M had done that of which he was accused, but concluded that he should not have been permanently excluded.
5. The letter of 27th June contained the following passage:

"The panel came to the view that though the incident was serious taking into account the guidance in Circular 1/2004, it did not feel that the pattern of behaviour was so serious that permanent exclusion was the only option and felt that other options were available to retain M within the school. At this point the panel did not consider him to be a threat to the health and welfare of others within the school. That said his behaviour is not condoned and M himself did not seem to appreciate the degree of offence which he caused."

6. The decision then went on to refer to the question of reinstatement. The position of M's mother before the tribunal had been that she did not want an order for reinstatement because she considered that there had been a breakdown in communications with the school. The decision letter said this:

"The panel decided it was not practical to direct M's reinstatement given your clearly stated view that there had been a breakdown in communications between yourself and that you therefore did not wish for M to be reinstated although otherwise reinstatement would have been appropriate. M's record will show that the permanent exclusion was overturned on appeal even though reinstatement was not directed."

7. The claimant subsequently changed her mind. She decided that she wanted M to be reinstated as a pupil in the A School after all. She communicated that change of mind to the clerk of the exclusions panel and asked the panel to review its decision and direct that M should be reinstated.
8. On 7th July 2005 the clerk to that panel wrote to her in the following terms:

"In coming to a decision the panel will first consider the issue of whether the permanent exclusion was a reasonable response. In the case of M, the panel felt that he should not have been permanently excluded and the reasons for this were set out in the letter of 27th June. Having come to that view, the panel then had to consider whether to direct reinstatement. Not directing reinstatement is exceptional, I accept, but the panel will be guided by what the parent says to it. At the hearing, on two occasions, you expressed the view that you did not think that it would be in M's best interests to return to the A School. On the second occasion you said that you felt that relationships with the A School had broken down. In the face of these two statements, the panel did not feel it should direct reinstatement because this would be a binding decision and would have been clearly against your express wishes at the hearing. Hence the decision taken which, in the circumstances, I think you might agree was not unhelpful to you in the context of the comments which you had made.

Since then, however, you have reconsidered and feel that M should be readmitted to the A School. The panel, having made its decision, has no remit to revisit at no time and, therefore, whilst you may have changed your view the decision of the panel stands and I have no authority to amend it in any way."

9. The claimant then sought the readmission of M to the college by seeking to exercise her preference for the A School under arrangements made by Cornwall pursuant to section 86(2) of the 1998 Act. The initial correspondence was in the form of an application which was sent to the governors of the school. The governors took a decision to refuse to readmit M to the school.
10. However, it subsequently became apparent that the relevant decision should be taken by the County Council Local Education Committee as the admissions authority. On 25th August 2005 the admissions authority wrote to the claimant advising her that the application for M's readmission to the A School would be refused essentially on the ground that it would prejudice the provision of efficient education.
11. The claimant then appealed against that decision to an Independent Appeal Panel established under the Education (Admissions Appeals Arrangements) (England) Regulations 2002, Statutory Instrument 2002 No 2899. The appeal was heard on 16th September 2005 before the Schools Admission Appeals Panel, which is the defendant in these proceedings. I shall refer to that body as the admissions panel.
12. The decision of that panel was communicated to the claimant in a letter dated 19th September 2005. Its decision was that M's readmission to the A School would:

"... result in prejudice to the provision of efficient education and/or the efficient use of resources."

The Statutory Scheme

13. Section 86 of the 1998 Act provides in relevant part:

"(2) Subject to subsections (3) and (6) and section 87 (children excluded from two or more schools), a local education authority and the governing body of a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1).

(3) The duty imposed by subsection (2) does not apply --

(a) if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources;

(b) if the preferred school is a foundation or voluntary aided school and compliance with the preference would be incompatible with any special arrangements under section 91 (admission arrangements to preserve the religious character of a foundation or voluntary aided school); or

(c) if the arrangements for admission to the preferred school --

(i) are wholly based on selection by reference to ability or aptitude, and

(ii) are so based with a view to admitting only pupils with high ability or with aptitude,

and compliance with the preference would be incompatible with selection under those arrangements."

14. Section 84(3) of the 1998 Act states that:

"(3) It shall be the duty of --

(a) each of the bodies and persons mentioned in subsection (1) when exercising functions under this Chapter, and

(b) any other person when exercising any function for the purposes of the discharge by a local education authority, or the governing body of a maintained school, of functions under this Chapter,

to have regard to any relevant provisions of the code."

It in fact directs bodies to have regard to the relevant provisions of a code made under that chapter of that statute.

15. The relevant Code of Practice is the Schools Admissions Code of Practice issued under section 84 of the 1998 Act. Paragraphs 7.5 to 7.7 of which provide:

"7.5. It is normally unacceptable for a school to refuse to admit a child on the basis of their behaviour elsewhere (though see paragraph 7.7 for the limited exceptions to this rule). It is also unacceptable for a school to refuse to admit a child thought to be potentially disruptive, or who has exhibited challenging behaviour, on the grounds that that child ought first to be assessed for special educational needs. The law disapplies the normal principle that parents' preferences should be compiled with only in the 'twice excluded' situation described in the previous paragraph. If a pupil, once admitted, is found to be seriously and persistently disruptive, then the school may consider disciplinary action, including temporary and, ultimately, permanent exclusion procedures.

7.6. Some under subscribed schools may find that they are required to admit an undue proportion of pupils with a recent history of challenging behaviour, which may have led to a permanent exclusion from another school. Other schools may find they are unable to take a share of such pupils if they were over subscribed. Admission Forums must discuss how local admission arrangements might work to allow all schools to admit a more even share of such children, including children excluded from other schools, and admission authorities must have regard to their Admission Forum's advice, school and their LEAs should together agree strategies, for example, by being prepared to admit some pupils above the admission number during the year in popular schools. We expect admission authorities to comply with any locally agreed protocols for the admission of such pupils.

7.7. Exceptionally, outside the normal year of entry, admission authorities for certain schools, or Academies, may decide to refuse to admit a challenging child where there are places available, on the grounds that admission would prejudice the provision of efficient education or the efficient use of resources. This will normally only be appropriate where a school has a particularly high concentration of pupils with challenging behaviour, or the child is particularly challenging, and in either case the school:

a. is under special measures or has recently come out of them (within the last two years); or

b. has been identified by OFSTED as having serious weaknesses; or

c. is subject to a formal warning notice; or

d. is a Fresh Start school or Academy open for less than two years; or.

e. is a secondary school where less than 25 per cent of whose pupils are achieving 5 or more GCSEs at grades A*-C."

16. In addition, I should refer to the School Admissions Appeals Code of Practice which provides in relevant part:

"4.51. Admission authorities are under a duty, under section 86(2) of the 1998 Act (as amended by the Education Act 2002), to comply with a parental preference except in certain limited circumstances, namely:

-- where to admit the child would prejudice the provision of efficient education or the efficient use of resources. LEAs and governing bodies may not refuse to admit children to any year group in which pupils are normally admitted to the school on these grounds unless the number of preferences or applications for places in that relevant year group exceeds the school's admission number. Prejudice may arise by reason of measures that would be required to be taken to comply with the limit on infant class sizes (referred to in this guidance as 'class size prejudice' -- see paragraphs 4.53-4.60);

-- where the school is wholly selective by high ability or by aptitude, and the admission of the pupil would be incompatible with such selection under the admission arrangements (partially selective schools, and those which operate banding, must admit up to their published admission numbers). Schools which are partially selective -- sometimes referred to as 'bilateral schools' or as having 'grammar school streams' -- may not keep selective places empty. Only schools that are wholly selective by high academic ability or by aptitude, and those admitting to their sixth form by reference to academic ability, can keep places empty if they do not have sufficient applicants of the required standard;

-- where the child has been permanently excluded from two or more schools and at least one of the exclusions took place after 1st September 1997. The requirement to comply with parental preference is disapplied for two years after the second exclusion. However, a child is not to be taken as having been permanently excluded for these purposes where: the exclusion took place before the child reached compulsory school age; the pupil was reinstated following exclusion; or a governing body reviewing the decision to permanently exclude a pupil, or an appeal panel hearing an appeal, decided that it would have been appropriate for them to direct that the pupil be reinstated had they considered it practical for them to do so in the circumstances. A permanent exclusion is regarded as taking effect from the first school day the headteacher has told the pupil not to attend the school;

-- where state maintained boarding schools have set separate admission numbers for day pupils and boarding pupils and have more applicants for one or other category than places available, even though places may be available in the other category;

-- where another place has been offered, as identified under co-ordinated arrangements.

...

Applications outside the normal time of entry

4.74. Even if there are no places available in the appropriate year group, admission authorities must formally consider 'casual applications' and, if refusing admission, should inform parents in writing why their application was unsuccessful, advising them of their right of appeal.

4.75. When considering applications to years other than the normal year of entry, admissions authorities will rarely be able to prove prejudice as a ground for refusing an additional pupil while numbers remain below the published admission number which was in operation when that year group was the normal year group for admission. And they should expect to go above that number where the school's accommodation and/or resources have increased since then. Admission authorities may refuse a child entry to a year group outside the normal year of entry if the circumstances described in paragraph 4.78 apply. Casual applications for places in an infant class should normally be refused if admission of a child would result in the class size limit being exceeded (unless the child would be treated as an 'excepted pupil' as described at paragraph 4.54).

...

Pupils with challenging behaviour

4.78. The School Admissions Code of Practice refers (at paragraph 7.5) to instances where it might be appropriate to refuse admission of a challenging child, even when places are available in a school. Appeal panels will need to take account of these considerations when hearing appeals for pupils who fall within this category, as well, of course, as considering the arguments put forward by the parents for their child to be admitted to the school in question. It is important in these cases that the panel carefully considers whether the admission authority has clearly proven that admission of the child would be prejudicial."

17. The principal ground of this application is that it is said that it was not open to the admissions panel to consider matters which had already been considered and decided by the exclusion panel.
18. Mr Hyams, on behalf of the claimant, says that it is clear that if the claimant had wanted M to be reinstated the exclusions panel would have ordered that reinstatement. Here he relies, in particular, on one sentence in the exclusion panel's decision letter of 27th June 2005:

"The panel decided it was not practical to direct M's reinstatement given your clearly stated view that there had been a breakdown in communications between yourself and that you therefore did not wish for M to be reinstated although otherwise reinstatement would have been appropriate."

Mr Hyams draws particular attention to the final words.

19. However, Mr Hyams in his submissions argued that the applications panel was not at liberty to ignore the decision of the exclusions panel. He did accept that this was dependent on the issue of reinstatement having been considered by the exclusions panel. He said in his submissions that, if the exclusions panel had not considered whether M's readmission would be prejudicial to other pupils and staff, he could not submit that he should have been readmitted. As it is, his submission is that the appeals panel was not at liberty to ignore the decision of the exclusions panel. As he put it, the readmission of M should have been a formality.
20. Mr Hyams also made this submission in a slightly different way. He submitted that the only potentially valid reason for refusing to admit M to the A School was his past behaviour. Since it had been decided, he said, by the exclusions panel that that behaviour was not sufficient to justify his permanent exclusion, it was irrational for the defendant to decide that his readmission to the A School would prejudice the provision of efficient education and/or the efficient use of resources. It is far from clear to me that the exclusion panel in its decision of 27th June 2005 did in fact conclude that reinstatement would have been appropriate but for the views of the claimant.
21. Mr Coppel on behalf the defendant submits that the final words of the sentence which I have just quoted simply reflect, and are intended to reflect, the submission which was being made on behalf of the claimant.
22. The statement as it stands in the letter is ambiguous. I think that Mr Coppel's reading of it is the more likely, given that because of the course which the proceedings took the matter was not argued before the tribunal. However, it is not necessary for me to decide what that statement in the letter meant because I am clear in my view that in either event the proceedings before the exclusions tribunal and their outcome did not preclude the admissions tribunal from giving full consideration to all matters relevant to what they had to decide.
23. First, it is clear that the question of reinstatement was not argued before the exclusions panel. That is common ground. It was not argued for good reason. It was not argued because the claimant had made clear that she did not want reinstatement. It was not disputed before me that the representative of the local education authority did not address before the exclusions panel the question of whether M should be reinstated at the A School. It is also clear that if there had been a live issue before the exclusions panel as to the reinstatement of M, then the County Council Education Authority would have fought that issue.
24. The letter of 7th July 2005 supports the view that reinstatement was not fully considered at the hearing before the exclusions panel. Mr Hyams says that that letter was written by the clerk to the tribunal and not by the members of the tribunal themselves. That is quite correct. Nevertheless, it is evidence which indicates what was and was not considered at that earlier hearing.
25. Furthermore, it was made clear to the admissions panel that the issue of reinstatement was not canvassed at the hearing before the exclusions panel. In this regard I have been referred to a note of the evidence which was taken I believe by the clerk to the panel, or an assistant clerk to the panel. That includes a note of the evidence of Mrs Turner, who is the head of admissions at the A School. She refers to the letter of 27th June 2005 and refers to the outcome of the exclusion panel's hearing. The words appear "upheld but not reinstated". The claimant at that point expressed the wish that M would not returned to the A School. The note then says:

"Had this been an option at the exclusion appeal then arguments for and against this could have been put to the panel. We did not have this opportunity as it was not an option."

26. To my mind the conclusion of the exclusions panel must be read in the light of its not having heard from the county council on that issue. The claimant does not say that the circumstances giving rise to M's exclusion from the school are not relevant to the question which the admissions panel had to consider, but rather it is said that because of the earlier decision of the exclusions panel the later tribunal should not have gone behind it.
27. In fact I am satisfied that the second decision does not involve a rejection of what was the first decision because the point was not decided in the first decision and it was not argued in the first hearing. Whether or not those words to which I have referred in the letter are to be read as indicating that the point was one on which a conclusion was reached, and I doubt that it was, nevertheless it is clear that the matter was not argued at the earlier hearing.
28. In these circumstances, Mr Hyams accepts that it would be unrealistic to suggest that the admissions panel could not investigate and consider these matters. It is clear to me that the admissions panel was required to consider for itself the evidence before it relevant to the question which it had to decide under section 86(3)(a) of the 1998 Act, that is whether compliance with the preference of the complainant would prejudice the provision of efficient education or the efficient use of resources.
29. In the proceedings before the exclusions tribunal there might have been two issues: (1) whether the school had been directed permanently to exclude M; and, (2), whether to order reinstatement. In the event, the tribunal had only to consider the first. Some of the evidence before the panel and some of the matters which were canvassed would have been relevant to both of the issues which I have just identified. These issues are not watertight compartments. Nevertheless, the second of those issues, whether to order reinstatement, would, to my mind, require the ventilation of a wider range of issues, including the effects of reinstatement on others and also questions as to the composition of the school, and, in particular, the demands that would be placed upon the school. That in turn would raise questions as to the number and proportion of pupils in the school with special educational needs. Such questions would be of relevance to the second issue when they may not be relevant to the first issue, but the second issue was simply not considered by the exclusions panel in this case. It did not need to for the reason I have already given.
30. In this regard I also refer to Mr Hyams's reliance on another sentence in the letter of 27th June 2005:

"At this point the panel did not consider him to be a threat to the health and welfare of others within the school."

31. Mr Hyams compared this with the submissions made by the representative of the County Council before the admissions panel. Those included submissions that M had openly failed in the past to demonstrate self-discipline that his conduct had been intimidating towards staff and that the effect on staff was detrimental to the provision of efficient education, that he demonstrated a continuing failure to acknowledge and abide by college rules, and that the view was taken that he would disrupt the education of other pupils and erode the standards of discipline. Mr Hyams suggests that these submissions are inconsistent with a finding which had already been made by the exclusions panel on the earlier occasion and that therefore this was an impermissible attempt to relitigate matters which had already been resolved.
32. I consider that the issues which were raised on behalf of the admissions authority before the admissions panel were matters which were properly raised. They were relevant to the issues which had to be decided by that body. I consider that they address matters far wider than considerations of health and welfare which are referred to in that sentence of the letter of 27th June 2005. I do not consider that the admissions panel was precluded from giving consideration to these matters by that earlier conclusion of the exclusions panel. On the contrary, I take the view that it was essential for the admissions panel to give full consideration to all relevant considerations in reaching its conclusion.
33. A second important consideration here is that the two panels have to apply different statutory criteria. They are in fact performing different roles. In this regard I refer to regulation 6 paragraph 3 of the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 which makes clear that the panel is required to balance the interests of the excluded pupil and the interests of other pupils and workers in the school.
34. That should be contrasted with the criteria to be applied by the admissions panel. Here I refer to regulation 6(1) of the Education (Admissions Appeals Arrangements) (England) Regulations 2002:

"In relation to an appeal made under the arrangements referred to in regulation 3(a) to (d), the matters to be taken into account by an appeal, in considering an appeal, shall include --

(a) any preference expressed by the appellant in respect of the child as mentioned in section 86, and

(b) the arrangements for the admission of pupils published by the local education authority or the governing body in accordance with regulations made under section 92."

and in particular to section 86(3)(a) of the 1998 Act, which is set out above and which defines the critical test to be applied.

35. For this further reason it seems to me that it would be inappropriate and quite wrong to hold the admissions panel as bound by any conclusion of the exclusions panel.
36. Mr Hyams on behalf of the claimant has relied in this regard upon an authority White v Aldridge QC and London Borough of Ealing [1999] ELR 150, a decision of the Court of Appeal on 2nd December 1998. There Butler Sloss LJ observed:

"In cases with an inquisitorial element, the approach, as Diplock LJ explained, is not the same as in strict common law litigation. Since the court has its own function to perform to arrive at the right result, independent of the submissions of the parties, it has to adopt a degree of flexibility to an application to strike out or to refuse to hear evidence on certain issues. But the underlying principle not to relitigate the same issue twice applies in our all cases of an inquisitorial nature including Children Act cases."

37. I am satisfied that this authority has no application here. First, because the relevant issue was not considered by the exclusion panel and, secondly, because it was not the same issue. The issues before the two bodies were not identical.
38. So far as Mr Hyams's alternative formulation of this ground is concerned, that is put on the basis of irrationality and it is suggested there is an inconsistency between the two decisions. It seems to me, in the light of the conclusions that I have come to, this adds nothing. Once it is accepted that the exclusions panel did not consider the question of reinstatement, there then can, on any view, be any inconsistency between the two decisions. So this way of putting the point also fails.
39. A distinct ground relied on by the claimant is that the admissions panel failed properly to take into account paragraphs 7.5 and 7.7 of the Code. Mr Hyams says that as a result the decision should be quashed and the matter remitted to a differently constituted tribunal for reconsideration.
40. Here, Mr Hyams relies on the notes of the proceedings before the admissions panel. Mr Hyams says that these notes show that the members of the panel had in fact made their decision before they considered paragraph 7.7. He relies on the sequence in which issues were considered in the notes. He makes the point that at page 93 of the bundle the three members of the panel are recorded as making these statements at the very start of their deliberations:

"Mr Priestly -- the basis of the CSA's case was sufficient for the appeal to be brought. I do feel it was a legislative grounds to refuse.

Mr Byrne -- in our opinion they were justified in their refusal on these grounds, cannot comment on law.

Mr Neville -- we were persuaded that they had justifiable grounds to refuse."

41. Mr Hyams also says that there is no reference to the Code in the decision letter and that this provides further evidence that the members of the panel failed to take proper account of the code in arriving at their decision.
42. The first point to be made is that the provisions of the Code with which we are concerned are not mandatory. That is common ground. Nevertheless, the members of the tribunal would have been required to have regard to the code in arriving at their decision.
43. Secondly, I consider that the fact that no reference to the Code is made in the decision letter does not necessarily indicate that the Code had not been taken into account by the members of the panel in arriving at their decision. In this regard I refer to Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 38 per Lord Lloyd at 43C to D and to R on the Application of Alconbury Limited v Secretary of State for the Environment [2003] 2 AC 295 per Lord Clyde at 355G. Both of those were authorities referred to by Mr Coppel in his skeleton.
44. Thirdly, in any event, the evidence before me does not support the view that the panel failed to take account of the Code in arriving at its conclusions. Shortly before they retired to deliberate the members of the tribunal had had their attention drawn to the Code on no fewer than four occasions. The note taken by the clerk, or the assistant clerk, indicates at page 83 that reference was made by Mrs Turner, head of admissions, to the Code. The words appear "Code -- only normally be but these circumstances are not normal". An examination of those words, in conjunction with the words of paragraph 7.7 of the Code, indicate that that is a reference to that second sentence.
45. At page 89 of the note is a summary of a part of Mr Scrace's submission (Mr Scrace appearing on behalf of M):

"On issue of behaviour, heard reference to SEN and those with statements. A designation of this need does not mean that the child is disruptive. The figures provided to the panel must be treated carefully as Code of Practice states challenging behaviour.

Code of Practice says there are the grounds if refused on prejudice.

Is the school under special measures -- no."

That indicates that Mr Scrace in his submission quite rightly was running through the criteria set out in paragraph 7.7 of the Code.

46. At page 91 we have a summary of the submissions made by Miss Main on behalf of the admissions authority in reply. She said this:

"Current Code dated 2003 -- been amended due to this case.

Extract from Code -- paragraph 31. I believe that the current equivalent is paragraph 7.7 'exceptionally outside normal year of entry'.

I think Mrs Hunter has demonstrated that they have a high number of challenging behaviour but also that M himself is a challenging pupil.

The authority is not presenting this as a normal case. Code will not cover all due to exceptional circumstances."

Then there is reference to the Cardiff case which goes to a point which is no longer a live issue. Then there are the words:

"Code of Practice -- heard the evidence of Mrs Turner and Mrs Hunter of M's impact on lessons and staff particularly female staff."

47. Finally in this regard, at page 92, Mr Scrace in his final submission said:

"Grateful that Miss Main has made reference to revised Code.

'exceptionally outside normal year of entry may refuse when more are places available when prejudice normally only appropriate where child had particular challenging behaviour'."

48. So it is clear to me that both Mr Scrace and Miss Main, as one would expect, were maintaining before the panel that admission to M could be refused only on the basis that this was an exceptional case within paragraph 7.7 of the Code.
49. I am satisfied that the panel was not approaching this issue in a vacuum, but within the correct legal framework. The fact that the panel expressed their conclusions early in the deliberations does not affect this conclusion. To my mind it is entirely to be expected that members of the panel would form a provisional view as they listened to the evidence and it is understandable that they would express those provisional views when they came together to begin their deliberations. It is not a final view. The fact that they went on to discuss the issues at length shows, first, that they had not closed their minds to the possibility of other views, and, secondly, we see that they did in fact refer later in their deliberation expressly to paragraph 7.7 of Code. They clearly had not forgotten about the Code. Accordingly, I have come to the conclusion that this ground also is not made out.
50. Finally, I turn to two further points which were raised for the first time by Mr Hyams on behalf of the claimant this morning. He sought permission to amend the claim form to take two further linked points. The points are essentially these.
51. The first is that the statement of Mrs Hunter in answer to the questions of Mr Scrace, recorded at page 85 of the bundle, is that 18 per cent of the students at the A School have statements of special educational needs. It is said on behalf of the claimant, and indeed it is accepted by the defendant, that that is wrong and that the correct figure is that the percentage of students at the school with statements of special educational needs is in fact 5.1 per cent.
52. The second point goes to another matter which is said to be a material fact. In arriving at its conclusion the admissions panel refers to the fact that a suitable alternative education is available to M at another school, to which I shall refer as the B School. Mr Hyams says that a further material fact which was not before the panel was the fact in an OFSTED report into the B School in 2003 concluded that the school had been adjudged to have serious weaknesses.
53. Mr Hyams says that these were material facts, that the panel was misled in relation to these two factors, so that its decision is to be regarded as unlawful by an analogy with the reasoning of the Court of Appeal in R v Bolton Justices ex parte Scally [1991] 1 QB 537, referring, in particular, to the judgment of the Watkins LJ at page 566 letters B to D.
54. I should make clear that it was not suggested on behalf of the claimant that the panel had been deliberately misled in any way. It was not suggested that this was anything other than inadvertent. Nevertheless, Mr Hyams said that, at least so far as the figure in relation to the proportion of pupils at the school with a statement of special educational needs, that this was an important matter.
55. Although Mr Coppel was taken by surprise by these new points, he was able to deal with them in the course of argument. In the circumstances, I am persuaded that the appropriate course is to give permission to the claimant to amend her grounds in order to take these points. However, I am satisfied that the allegations of illegality are not made out. In her evidence Mrs Hunter said (page 85 of the bundle) that 25 per cent of the pupils in the school had special educational needs and that 18 per cent of them had statements. In fact, it is now shown that the correct figures were 20 per cent of pupils in the school had special educational needs and 5.1 per cent of them had statements. Mr Hyams draws attention to the fact that in the deliberations which took place after the panel retired Miss Priestly referred to the 18 per cent figure. Mr Byrne referred to the fact that the proportion was above the national average.
56. It seems to me that what matters here is that the number of pupils with special educational needs was above the national average. The national average for pupils at a school with special educational needs statements is 2.4 per cent. This school, the A School, at 5.1 per cent is more than double the national average. Similarly, if we compare the figures of pupils with or without statements who nevertheless have special educational needs, 15.8 per cent is the national average and the figure at this school was 20 per cent. It is significant that the more severe end of the scale, that is those cases where there are statements of special educational needs, the figures are more than double the national average.
57. The particular significance of the evidence was that the number with statements was above the national average. That is apparent from a later passage in Mrs Hunter's evidence (page 87 of the bundle), Miss Neville having repeated Mrs Hunter's evidence:

"18 per cent have statements and over 25 per cent SEN. What is the national percentage?

Mrs Hunter: Our number of statemented is significantly higher and those on the registered (sic)."

58. That statement, that the number with statements was significantly higher than the national average, was correct. It is also significant that no figure was given to the panel for the national average. Although the figure for the proportion of pupils at the A School with statements of special educational needs was wrong, the matter could in fact quite fairly have been put much higher than it was put by the representatives of the school. They could quite fairly have said that was more than double the national average.
59. In all the circumstances, I am satisfied that the panel was not misled in this regard and that had the accurate figures been given that could not have made any difference to the panel's decision.
60. The linked point concerns the B School. Mr Hyams makes the point that a finding of serious weaknesses in a school -- and that is in educational terms a term of art -- is a criterion to be applied under paragraph 7.7 of the Code. He accepts that the status of the B School in that regard is not relevant in the context of the exercise which the panel had to perform in applying paragraph 7.7 of the Code. Paragraph 7.7 of the Code is to be applied to the A School, not the B School, but he says it shows that it is a relevant consideration. He points to the fact that the B School offered a suitable alternative education for M.
61. It is correct that the B School was found in a report published by Ofsted in 2003 to have serious weaknesses. However, a closer of examination of that report shows that the weaknesses arose, in particular, in relation to the teaching in years 7 to 9, and the school was in general considered satisfactory in years 10 to 12, that is in those years with which M would have been concerned.
62. In all the circumstances, I do not consider that the panel was misled in any material way by reason of the fact that this information was not before it. I am confident that the panel's reasoning was not affected in any way by the fact that it may not have been aware of this report.
63. For these reasons, the application is dismissed.
64. MR COPPEL: My Lord, I ask formally for an order that the claim be dismissed. I am conscious of the fact that the claimant is legally aided. In the circumstances the appropriate order is that the claimant pay the costs, but not enforced or assessed without the leave of the court.
65. MR JUSTICE LLOYD JONES: Mr Hyams.
66. MR HYAMS: I can't object to that, my Lord. Obviously I want detailed assessment for public funding purposes.
67. MR JUSTICE LLOYD JONES: The claim will be dismissed. There will be an order that the claimant pay the defendant's costs, not to be enforced without the leave of the court.
68. MR HYAMS: No assessment without permission for it as well.
69. MR COPPEL: That would be standard and does not go ahead.
70. MR HYAMS: Quite.
71. MR JUSTICE LLOYD JONES: Not to be assessed or enforced without the leave of the court?
72. MR HYAMS: Yes, grateful.
73. MR JUSTICE LLOYD JONES: In addition, there will be detailed assessment for legal aid purposes.
74. MR HYAMS: Thank you, my Lord.
75. MR JUSTICE LLOYD JONES: Yes. Any other matters?
76. MR HYAMS: No, my Lord.
77. MR JUSTICE LLOYD JONES: Can I thank you both very much for your assistance.