London Borough of Islington, R (On the Application Of) v The Secretary Of State For Education

Factual and Procedural Background

The Plaintiff local authority ("the Council") sought permission to appeal against the order of Judge Choudhury dated 12 July 2024, which dismissed the Council's claim for judicial review of the decision by the Defendant, the Secretary of State for Education ("the SSE"), not to exercise the exceptional power to revoke an Academy Order under section 4 (A1) of the Academies Act 2010 concerning Pooles Park Primary School ("the School"). The challenged decision was made on 14 November 2023 by the Minister acting on behalf of the SSE.

The Council faces challenges including a significant reduction in pupil numbers leading to surplus places in schools and a high demand for places for children with Special Educational Needs ("SEN"). The Council adopted a Schools Organisation Plan in October 2022 to manage surplus capacity while fulfilling its duty to provide school places. The School was rated "Inadequate" by Ofsted in January 2023 and placed into special measures, triggering an Academy Order requiring the School to become an Academy under a sponsor Academy Trust. The SSE has no discretion in making an Academy Order but holds a discretionary power to revoke it in exceptional circumstances.

The Council sought revocation of the Academy Order to enable closure of the School, contending it was not viable as an Academy. The Defendant identified a suitable sponsor, the Bridge Multi-Academy Trust ("the Trust"), with experience in SEN provision and school improvement. The Trust proposed reducing pupil places and sharing resources with another successful SEN school. The Council challenged the decision not to revoke the Academy Order on grounds including irrationality and failure to comply with the duty to make adequate inquiries ("Tameside duty").

The Council’s judicial review claim was dismissed by Judge Choudhury, who found the Minister’s decision rational and that she had taken reasonable steps to acquaint herself with relevant material. The Council applied for permission to appeal, which was refused following an expedited oral hearing before two Justices of Appeal, who agreed there was no real prospect of success or compelling reason to entertain the appeal.

Legal Issues Presented

1. Whether the decision by the SSE that the School was viable as an Academy was irrational in the Wednesbury sense or unsupported by evidence.
2. Whether the Minister breached the Tameside duty by failing to take reasonable steps to acquaint herself with relevant material before making the decision.

Arguments of the Parties

Appellant's Arguments

• The Judge applied the wrong legal test in assessing rationality, misapplying the principles from R (National Association of Health Stores & Anr) v Department of Health.
• The Minister was given only a summary of officials' views and not the factual basis necessary to make an informed judgment on viability.
• The School was not viable as a standalone mainstream school; the proposed turnaround relied heavily on attracting SEN placements funded by local authorities, but the Minister was not told that the funding assumptions had not been verified with those authorities.
• The Minister was not informed that the actual pupil numbers in October 2023 were substantially lower than projected, leading to overestimation of income.
• The Judge improperly relied on the Trust’s CEO’s evidence, which was not before the Minister, to support the decision on viability.
• The Minister failed to make adequate inquiries, breaching the Tameside duty, particularly regarding funding assumptions and the Trust’s plans for surplus places at another school.

Respondent's Arguments

• The Judge correctly applied the law and posed the correct question regarding rationality and relevant material.
• The Minister had sufficient factual information, including the summary of salient facts underpinning the officials’ assessment of viability.
• The decision was rational as it was based on the material before the Minister, including the Trust’s proven track record and innovative proposals.
• It was reasonable for the Minister to assume local authorities would fulfill their statutory duties regarding SEN placements and funding.
• The Council’s criticisms were either misconceived or based on incorrect assumptions.
• The Minister was not required to know the precise numbers or detailed financial modelling to make a rational decision.
• The Tameside duty was satisfied; no further inquiries were legally required.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court agreed with the Judge that the rationality challenge failed because the Minister had sufficient factual information to make an informed judgment on the School's viability as an Academy. The Minister's reliance on a summary of officials’ views was appropriate, as the summary contained the salient facts underpinning the viability assessment. The Court emphasized that the Minister was not required to be provided with detailed financial figures or the precise projections underlying the Trust’s internal modelling.

The Court acknowledged the inherent uncertainties in projecting pupil numbers and funding, particularly related to SEN placements, but found that the Minister was properly informed of the general context including declining mainstream pupil numbers, increasing SEN demand, and the Trust’s innovative approach to addressing these challenges. The Minister could reasonably assume that local authorities would fulfill their statutory duties in placing SEN children and providing associated funding.

Regarding the Tameside duty, the Court found no failure by the Minister to make adequate inquiries. The missing information alleged by the Council was not legally relevant or essential for the Minister’s decision. The Judge’s findings on these points were not plainly wrong and were supported by the evidence.

The Court also noted the high threshold for revoking an Academy Order, which requires exceptional circumstances and a conclusion that the School could not be made viable with the assistance of an experienced sponsor. Given the Trust’s proven track record and the extensive consideration of options by the Advisory Board, the Minister’s decision was sound.

The Court found no merit in the Council’s contention that the Minister should have been informed of the detailed basis for the Trust’s viability assessment or the precise funding assumptions. The Judge’s approach to relevance and materiality was upheld.

Finally, the Court recognized the importance of avoiding further delay and uncertainty for the School’s pupils, parents, and staff, reinforcing the rationale for refusing permission to appeal.

Holding and Implications

The Court REFUSED PERMISSION TO APPEAL on the grounds that the proposed appeal had no real prospect of success and there was no other compelling reason to hear it.

The direct effect of this decision is to uphold the SSE’s refusal to revoke the Academy Order, allowing the School to proceed with conversion to Academy status under the chosen sponsor. No new legal precedent was established, and the decision primarily resolves the dispute on its specific facts. The ruling emphasizes the high hurdle for revocation of Academy Orders and confirms the scope of the Tameside duty and rationality review in this context.