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The Court of Appeal has refused permission to appeal in judicial review proceedings concerning the decision to close part of a school site.
The Pathfield School is a foundational special school (a type of maintained school) in Devon whose provision meets the needs of pupils with Severe Learning Difficulty (SLD) or a Profound and Multiple Learning Difficulty (PMLD). Over time the School began to admit pupils with Social, Emotional and Mental Health (SEMH) needs alongside its core SLD and PMLD offering. Those pupils with SEMH needs attended the ‘Discovery Centre’ – a separate building located about half a mile from the main school site.
The decision was taken to not renew the lease for the Discovery Centre when it expires in October 2025. The Claimant, a current pupil of the School with SEMH needs, applied to judicially review that decision. HHJ Jarman KC refused permission on the papers. HHJ Keyser KC refused the Claimant’s renewed application to bring judicial review proceedings following an oral renewal hearing.
The Court of Appeal (Coulson LJ) has now refused the Claimant’s application for permission to appeal, finding that the appeal had no real prospects of success.
Coulson LJ upheld the findings of HHJ Jarman KC and HHJ Keyser KC that there had been no change to “the type of educational needs for which the school is organised to make provision” within the meaning of paragraph 9 of Schedule 2 to the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2013. This meant that the decision not to renew the lease was not a “prescribed alteration” for the purposes of the Education and Inspections Act 2006, and therefore did not attract a statutory duty of consultation.
The School’s Governing Body had argued that the type of special educational needs for which the School was organised to make provision were SLD and PMLD, as was clear from its admission policy and as acknowledged by Ofsted. The High Court and Court of Appeal accepted that this submission was correct. The fact that the School had been educating those outside of its core designation could not be used to the School’s detriment. Otherwise, schools in a similar position would not accept any pupil outside of their core designation for fear of triggering a raft of further statutory obligations. Coulson LJ noted that, if the Claimant’s claim was right, the decision-making process would become even more complex, if not impossible.
In any event, the decision under challenge did not affect the Claimant as their SEMH needs would continue to be provided for at the School. The only change was to the location where the Claimant received their education. The decision was a property management decision.
In respect of a challenge on the public sector equality duty (PSED), Coulson LJ held that equality considerations were at the heart of all of the decisions in this case. All of the pupils had an EHC Plan, and there were detailed statutory provisions regulating the content of those plans and the enforcement of the relevant obligations under those plans against the Local Authority and the School. It was therefore inherent in the entire legislative system that PSED considerations were at play at every stage of the process.
Leon Glenister and Edward-Arash Abedian acted for the Governing Body of Pathfield School, instructed by Dmitrije Sirovica of Browne Jacobson LLP, with Edward appearing alone at the oral renewal hearing.
