A New Framework for Education in
Schools and the Link with Judicial Review

Jonathan Robinson*

Widespread interest in the law of education as it affects state.-maintained schools is
rapidly developing for two reasons. First, a political and controversial 'free-
market' philosophy underlies both recent and proposed legislation. The aims are
to give power to parents and substantial independence to governing bodies of
schools, while reducing the powers of the local education authority (LEA),
changing the role of the latter from a 'provider' to that of an 'enabler', 1 with the
strong possibility of the eventual demise of LEAs. The Government's perspective
is clear from the concluding chapter of its White Paper Choice and Diversity - A
new framework for schools (the' 1992White Paper'), 2 which describes the proposals
for legislation as " ... the final stages of a great transformation in education which
will take at least a decade to work through: a child tested at the age of7 this year will
not be taking [the General Certificate of Secondary Education] until 2001."3
These proposals purport to be given effect in the Education Bill 1992 (the' 1992
Bill').

Secondly, the creation of an entirely new legislative framework, starting with
the Education Act 1980, has led to a pronounced increase in the number of
applications for judicial review, a trend which has been encouraged by the fact that
a minor can be granted legal aid in his or her own right without reference to
parental means. 4

By contrast) a shortage of barristers and solicitors specialising in this area oflaw
is a matter of concern but hardly surprising. In order to understand the legislation
(especially subordinate) and the extensive flow of departmental circulars) a legal
adviser must be familiar with teaching and administrative practice and the
relationships between the Secretary of State and the Department for Education

* Senior Lecturer in Law, University of Buckingham and a Consultant Solicitor. This article is based
on a paper which wasgiven to the Education Law Association at the Institute of Education, London on
November 30, 1992.

1. The Structure of Local Governmem in England (DES, April 1991), para. 19.
2. Cm. 2021,1992.
3. Ibid., Ch. 15, para. l.
4. Civil Legal Aid (General) Regulations 1989, reg. 16.

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(DFE),5 the LEA, school governors, teachers, pupils and parents.
This article aims to demonstrate the extent to which a relatively new specialism

is influencing the development of administrative law in the context of education in
schools in England and Wales and in particular the development of judicial review
as a remedy in that context. The relevant legislation is considered as succinctly as
accuracy permits, whereas the many issues (for example, the curriculum; financial
matters; the roles of governing bodies, LEAs and the Secretary of State;
admissions and exclusions; children's special educational needs; religious
education) merit detailed examination. The 1992 White Paper is referred to as a
source to explain current reform of the law of education in schools, as is the 1992
Bill. The final terms of the latter remain liable to substantial amendment, not least
as to detail by the Government (probably as the Bill passes through the House of
Lords). Even prior to publication of the Bill it was reported that Conservative
education chairmen from both towns and counties were seeking major concessions
from the Secretary of State, 6

THE GENERAL DUTY OF THE LEA
Section 7 of the Education Act 1944(the '1944 Act') requires the statutory system
of public education to be organised in three progressive stages - primary,
secondary and further education7 - and imposes a duty on the LEA, so far its
powers extend " ... to contribute towards the spiritual, moral, mental and
physical development of the community by securing that efficient education
throughout those stages shall be available to meet the needs of the population of
their area."

The LEA's duty is more specifically set out in section 8(1), which requires
LEAs to secure provision of primary and secondary schools for its area
", , , sufficient in number, character and equipment to afford for all pupils
opportunities for education offering such variety of instruction and training as
may be desirable in view of their different ages, abilities and aptitudes, and of the
different periods for which they may be expected to remain at school, including
practical instruction and training appropriate to their respective needs." There is
also a duty to have regard inter alia to the need to secure that special educational
provision is made for children who have special educational needs under the
Education Act 1981.

Accordingly, the LEA maintains county schools (which are attended by
approximately 75% of pupils in the state-maintained sector), special schools for
children with special educational needs and voluntary schools (which usually have
a denominational foundation). The Education Reform Act 1988introduced grant-

5. Formerly the Department of Education & Science (DES).
6. See, e.g., Education, Vol. 180 No. 13, pp. 241 et seq..
7. City Technology Colleges and Colleges for the Technology of the Arts are not 'maintained' -
Education Reform Act 1988, s. 105.

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maintained (GM) schools, which are outside LEA control and receive a grant from
the DFE, equivalent to the sum which they would have received from the LEA,
plus an addition to cover the services which are not provided by the LEA.8

Section 8 does not, however, impose an absolute duty on the LEA. In R. v.
Surrey County Council Education Commiuee, ex parle H,9 Slade LJ in the Court of
Appeal approved the proposition that " ... there is no question of Parliament
having placed the local authority under an obligation to provide a child with the
best possible education. There is no duty on the authority to provide such a
Utopian system, or to educate him or her to his or her maximum potential." The
section has also been said only to impose a 'target' duty, with the effect that where
an LEA fails without any fault on its part to comply for a limited period with the
standard set by section 8 (for example, due to a shortage of teachers), it is not
automatically in breach of the section.lo

On the other hand, the Court of Appeal in R. v. Birmingham City Council, ex
parte Equal Opportunities Commission (No. 2)11 held that the LEA, in performing
its duty under the 1944Act, was also under a duty by virtue of section 23(1) of the
Sex Discrimination Act 1975not to discriminate on the ground of sex. While there
is no unlawful sexual discrimination in the provision of places for boys and girls in
selective secondary schools, the LEA when securing that sufficient schools are
available for providing secondary education is obliged to take account of places
which are available free. Neill LJ, giving the judgment of the court, stated that the
relevant 'pool' of free places certainly included GM schools.

That judgment also emphasised that the Sex Discrimination Act 1975 and
comparable legislation in the field of race relationsl2 required close examination
when the duties and obligations of bodies responsible for the provision of public
sector education were being formulated. The court commented on the need for
future legislation inter alia to enable the elimination of discrimination to take place
in accordance with a suitable and sensible timescale. By pointing to disparities
which will be likely to vary from year to year and which will also be due to factors
over which the authorities cannot possibly exercise control, the court has drawn
attention to the dilemma which LEAs face at a time when the number of GM
schools is increasing.

A further element of flexibility when assessing the performance by LEAs of
their statutory duty was suggested when the court observed that it might therefore

8. Education Reform Act 1988, ss. 52 and 79. The Secretary of State has power under s. 81(I)and reg.
24 of the Education (Grant-maintained Schools) (Finance) Regulations 1992(5.1. 1992/55) to recoup
the maintenance grant from the LEA.
9. (1985) 83 L.G.R. 219 (C.A.).
10. Per WoolfLJ inR. v./nner London Education A uthon'ty, exparuAli(1990) The Times, February 21
(Q.B.D.). See also Meade v. London Borough ofHaringey [1979] 2 AllE.R. 1016(C.A.) per Eveleigh LJ
at p. 1027as to the necessity in a state of emergency (a just and reasonable excuse) to close schools for a
while in order to achieve the end of making education available in accordance with the statutory duty.
II. (1992) The Times, October 27 (C.A.).
12. See note 91, infra.

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be right to provide that unlawful discrimination could only be proved if over a
period a pattern of discrimination could be established.

LEAs AND A FUNDING AGENCY FOR SCHOOLS
The Government intends to create a Funding Agency for Schools (the 'FAS'),
sharing with LEAs and ultimately taking over the duty to provide sufficient
secondary and primary school places in the area when 75% of secondary (or
primary) pupils in the LEA are in GM schools;l] to " ... ease the transition to
grant-maintained status" (i.e., encourage schools to opt for GM status);14 and, in
the course of a move towards unitary local authorities, to see LEAs increasingly as
'enablers' (securing provision for services) rather than 'providers' of services. IS It
will be interesting to see whether pressure from LEAs and other bodies for the
entry point for the F AS to be raised to a minimum of 50 per cent, or (as proposed,
for example, by the National Association of Head Teachers in their response to the
White Paper)16 for there to be a single changeover point transferring responsibility
for the provision of school places to the F AS at that level, results in any change to
the current proposal. 17

1980-1992:THE SCHEME OF THE LEGISLATION

The Education Act 1980
Although wide-ranging in its reforms, 18it is arguable that for current purposes the
most significant provisions of the Education Act 1980 (the '1980 Act') are
contained in sections 6 to 9 and Schedule 2, enabling parents to express a
preference for a school and providing for appeals against a decision on the
admission of a child to a school. The 1980 Act uses the word "preference",
whereas recently the word "choice" has been used (arguably for political
purposes), both in the Parent's Charterl9 and the Education (Schools) Act 1992.20
It signalled the 'market' approach by the Conservative Government, in which
parents were destined to playa significant role, in the first instance by promoting
competition between schools by the exercise of a 'preference'.

Chapter 5 of the 1992 White Paper envisages an increasing responsibility at
school level for arranging school admissions. GM schools and LEAs will be

13. Education Bill 1992, Part I.
14. Cm. 2021, 1992, Ch. 7, pp. 33 et seq..
15. Ibid., Ch. 6, paras. 2, 3 and 5.
16.National Association of Head Teachers' Response to the Secretary of State's White Paper 'Choice and
Diversity', September 1992, Ch. 3, para. 9.
17. Education Bill 1992, cl.7(4) and Sch. 2.
18. For example, school government; admissions to schools; school anendance orders; establishment
and alteration of schools; assisted places at independent schools; school meals; nursery education.
19. 'The right to choose' is emphasised at pp. 8 and 9, although the Parent's Charter later states
(correctly) that" ... you have the right to say which school you prefer" (DES emphasis).
20. S.l6(3) - see n. 58 infra.

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expected to consider whether joint arrangements to co-ordinate admissions would
help reduce delay and uncertainty for parents, but LEAs will continue to have
final responsibility to ensure that all children attend school or are otherwise
suitablyeducated.21

The Education Act 1981
The Education Act 1981 (the' 1981 Act') implemented the central recommendation
in the Report of the Warnock Committee in 1978 (Special Educational Needs),22
with the result that instead of defined categories of 'handicap', children have
"special educational needs" (SEN)23if they have a "learning difficulty"24 which
calls for "special educational provision"25 to be made for them.26 At the heart of
the 1981 Act is the object that children, including those in GM schools,27who have
special educational needs shall receive a suitable education, sofar as possible in an
ordinary school (the policy of integration). 28For children with special educational
needs assessed under section 5 of the 1981 Act and for whom the LEA are of the
opinion that they should determine the special educational provision that should
be made, the LEA must make and maintain a Statement of those needs under
section 7 and arrange the special educational provision specified in the Statement,
unless a parent has made suitable arrangements. There are rights of appeal under
section 8 to an appeal committee (which has only limited powers) and to the
Secretary of State.

According to paragraph 15of DES Circular 22/89, since the implementation of
the 1981 Act attention has tended to focus on the two per cent of the school
population who have Statements under section 7, in some areas drawing attention
away from the larger group, for whom none the less LEAs and school governors
have duties under the Act.

In response to widespread concern as to the failure by LEAs fully to implement
the 1981 Act (that failure being expressed cogently by the Audit Commission)29
and after consultation,30 the Government has responded by proposing to repeal
and re-enact the 1981 Act almost entirely.31 Clauses 143-145 of the 1992 Bill
reflect the policy of integration of children with learning difficulties in ordinary
schools so far as possible. LEAs will retain their responsibilities for assessments

21. Education Act 1944,55.7 and 8, read with the Education Bill 1992, c1.7.
22. Cmnd. 7212, 1978.
23. Education Act 1981,5.1(1) (emphasis added).
24. Ibid., 5.1 (2)
25. Ibid., 5.1 (3)
26. The Warnock Report estimated that up to 20%of school children would have a special educational
need requiring some additional provision at some stage during their school life.
27. Education Reform Act 1988, s.100.
28. Education Act 1981, s. 2(2).
29. Geuing in on the A ct - Provision for Pupils with Special Educational Needs: The National Picture, a
joint report by The Audit Commission and HM Inspectorate of Schools (HMSO, 1992).
30. Special Educational Needs - Access to the System (DFE, 15 July 1992).
31. Education Bill 1992, Part III and Schs. 8 and 9.

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and Statements under the 1981 Act.32 The Secretary of State shall issue, and may
from time to time revise, a code of practice giving practical guidance in respect of
the discharge by LEAs of their functions under this Part of the proposed Act.33
Among the more significant reforms, parents will have the right to express a
preference for a particular ordinary or special maintained school for their child;34
and Special Educational Needs Tribunals will be established to determine all
appeals.35 None the less, there are well-informed reservations as to whether the
current proposals for reform of the 1981 Act are sufficient,36 not least in respect of
special educational provision for the estimated 18 per cent of non-statemented
children, the absence oflegislation as to what information should be specified in a
Statement, and the practical operation of regional Tribunals.

The Education (No.2) Act 1986
The Education (No.2) Act 1986 (the '1986 Act') is primarily concerned with
school government and the composition of the governing bodies of schools.
Section 1 requires every school to have an Instrument of Government (its
constitution) and Articles of Association (regulating the conduct of the school).
The 1986 Act marks a pronounced change in the roles and rights of governors, the
LEA and parents respectively. Parent and LEA governors are given equal
representation with LEA,31 and the theme of accountability is emphasised by the
requirement that governors shall report annually to parents38 and hold an annual
meeting with parents.39 Links with the local business community are emphasised
by virtue of the provisions as to co-opted governors under section 6.

The LEA's control over the curriculum is diluted, first by section 18, under
which the governing body can determine how the LEA's secular curriculum shall
be modified to meet the particular needs of a school, and secondly by provisions
inter alia to secure balanced treatment of political issues40 and to ensure that sex
education shall, so far as reasonably practicable, be " ... given in such a manner as
to encourage ... pupils to have due regard to moral considerations and the value
of family life. "41 The issue of discipline is addressed (providing for exclusion and
reinstatement of pupils and appeals).42

Under section 42, the governors have control of the use of school premises

32. Ibid., d. 147.
33. Ibid., ds. 140 and 141.
34. Ibid., d. 149 and Sch. 9, paras. 3 and 4.
35. Ibid., ds. 150-154.
36. E.g.,P~tting Righr rhe 1981 EducarionAcr: EighreenFurrher Amendmenrs by the Independent Panel
for Special Education Advice (IPSEA - September 1992).
37. Education (No.2) Act 1986, s. 3(2)-(5); s. 4(2).
38. Ibid., s. 30.
39. Ibid., s. 31.
40. Ibid., s. 45.
41. Ibid., s. 46.
42. Ibid., ss. 22-28.

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outside school hours (subjectto provisos). In general terms the 1986 Act as a whole
was the precursor to the major reforms introduced two years later.

The Education Reform Act 1988
Although the Education Reform Act 1988 (the '1988 Act') effects fundamental.
reforms, these are in a sense developments based on the foundations laid by the
previous legislation, relatively little of which is repealed or amended. Part I of the
1988 Act legislates for Schools (whereas Part II deals with Higher and Further
Education, which are not within the scope of this article). The three substantial
innovations are: (i) the introduction of a National Curriculum; (ii) delegation of
responsibility to schools for their budgets; and (iii) provision for schools to acquire
grant-maintained (GM) status.

The National Curriculum was introduced by Chapter I of Part I of the 1988 Act,
which also provides for the assessment and testing of pupils in maintained schools
against attainment targets at ages 7, 11, 14 and 16. Chapters II and III provide for
admission of pupils up to the limit of a school's capacity and for delegation of a
school's 'budget share', implementing Local Management of Schools (LMS) by
governing bodies and empowering them to appoint and dismiss staff from their
school.

The method for acquiring and the consequences of GM status for schools,
funded by a grant from the Secretary of State,43is dealt with under Chapter IV of
Part I. The procedure requires two resolutions by the governors and ballot(s) of
the parents, and publication of the proposal for the acquisition of GM status, in
accordance with sections 60 to 63 of the 1988 Act. The 1988 Act also provides, inler
alia, for the powers and conduct of the governing body, transfer of property and
staff, finance, admissions, religious education, control over alteration and change
of site, discontinuance, winding up and disposal of property.

City Technology Colleges and Colleges for the Technology of the Arts may be
established under Part I, Chapter V, and under section 105 the Secretary of State
may contribute towards their establishment and running.

The 1992 White Paper made it clear that the Government intended to increase
the number of GM schools44and to require LEAs to increase delegation of their
budgets to other schools under LMS.45A single new body, the School Curriculum
and Assessment Authority, will replace and combine the functions of the National
Curriculum Council and the Schools Examination Council.46It appears that to a
considerable extent the Government is relying upon schools to opt for GM status,
whereas the credibility of that policy has been questioned with reference to
resources. On the one hand, it is said that GM status must confer a financial

43. Education Reform Act 1988, s. 52.
44. Ch. 7, pp. 33 er seq •.
45. Ch. 6, para. 3.
46. Education Bill 1992, cis. 214-218, with provision for Wales under cis. 219-223.

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benefit, because the political imperative is to see the drive for GM status to
succeed;47on the other hand, funding is likelyto be constrained across the board in
the current economic climate, a situation which is not· made easier for schools
when they attempt to assess the advantages of GM status and are presented with
differing sets of figures from the DFE and the Chartered Institute of Public
Finance and Accountancy. 48Part II of the 1992 Bill repeals and substantially
re-enacts the provisions of the 1988Act relating to GM schools (and in particular
Chapter IV of Part I of the 1988 Act), but with a significant change contained in
clause 17 of the 1992 Bill, which is designed to facilitate a vote by parents as to
whether or not a school should apply for GM status by limiting the statutory
procedure to one (rather than two) prior resolutions by that school's governors.

The Education (Schools) Act 1992
The purpose of the Education (Schools) Act 1992 (the '1992 Act') was to
revolutionise the method of inspection of schools and to provide a standard against
which to measure their performance.

Inspection of schools
The present regional structure will be radically changed in the case of secondary
schools with effect from September 1993 and primary and special schools from
September 1994. Under the 1992 Act, ChiefInspectors (HMCI) and Inspectors
of Schools (HMI) are appointed by Order in Council for England and Wales
respectively,49administered by the Office for Standards in Education (OfStEd).
The general duties of HMCI are to keep the Secretary of State informed as to the
quality of education and the educational standards achieved in schools; whether
financial resources made available to schools are managed efficiently; and the
spiritual, moral, social and cultural development of pupils at schoo1.50 They also
have, inter alia, advisory functions and specific duties to set up and maintain a
register of inspectors; to give guidance to HMI and review the system of
inspecting schools; and to promote efficiency of inspections by encouraging
competition in the provision of services by registered inspectors.51 An inspection
team must include at least one member without personal experience in the

47. The Government may have to accept an increase overall of expenditure on education in order to
protect schools which might be potential losers on acquiring GM status.
48. The difference is in the analysis of the finances of LEAs which have exceeded their education
standard spending assessment for 1991-92. Under new financial arrangements, schools in those LEAs
may be better off financially by deciding not to apply for GM status (The Times Educarional
Supplement, August 14, 1992).
49. Education (Schools) Act 1992, s. 1 (England) and s. 5 (Wales).
50. Ibid., s. 2(1).
51. Ibid., s. 2 generally and s. 2(3) in particular. In the case of an inspection under s. 9, before entering
into any arrangements for an inspection, the Chief Inspector shall, after consulting the appropriate
authority for the school concerned as to the tender specification, invite tenders from at least two
registered inspectors at arm's length from each other - s. 9(7) and Sch. 2, para. '2.

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management of any school or the provision of education in any school (otherwise
than as a governor or in any other voluntary capacity) and whose primary function
on the team is not that of providing financial or business expertise. 52

The LEA may provide services for the inspection of schools whether or not they
are maintained by that LEA,53 in such a way as can reasonably be expected to
recover the full cost by way of charges made by the LEA for its services. 54
Separately, the LEA may inspect a maintained school for a specific purpose.55

Schedule 2, para. 9 provides for reports to be made by the registered inspector
and for such reports to be made available to members of the public and for such
steps to be taken as are reasonably practicable to secure that every parent of a
registered pupil at the school receives a copy of the summary as soon as is
reasonably practicable.

Information about schools
The Secretary of State has power to make regulations under section 16of the 1992
Act requiring governing bodies of maintained schools (and proprietors of
independent schools)56 to provide information, including destinations of pupils
leaving a school. 57Such information is intended to be such as is likely to assist
parents in choosing schools for their children (emphasis added);58 to increase public
awareness of the quality of education at and educational standards of schools; and
to assist in assessing the efficiency of management of the financial resources of
schools. This is the basis for controversy as to the validity of data as to examination
results without taking account of the 'value added' according to the socio-
economic background of the pupils and other factors. 59

From the autumn term 1992, all maintained schools have had to publish their
record of "unauthorised pupil absence" (i.e. truancy) in their prospectuses and
annual reports and from 1993 this information will be included in performance
tables published locally in respect of all schools.60

'Failing' schools
Inspection reports are intended to identify "schools at risk", and the Secretary of
State will have the ultimate power to appoint an 'Education Association' to take
over the management of an 'at risk' school or groups of schools. The Education

52. Ibid., ss. 9(7) and Sch. 2, para. 3(2).
53. Ibid., s. 14(1)-(3).
54. Ibid., s. 14(4).
55. Ibid., s. 15.
56. Ibid., s. 16(9).
57. Ibid., s. 16(2).
58. Ibid., s. 16(3) - see notes 19 and 20 supra.
59. See, e.g., D. Hutchison, Chief Statistician to the National Foundation for Educational Research,
School Records - Making Sense of School Results (1991). In response to criticisms of results from raw
data, the Government is consulting as to publication of results which reflect 'value added' by schools.
60. Cm. 2021, 1992, Ch. 5, para. 8.

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Association will consist of a chairman and typically some five other part-time
members appointed by the Secretary of State and the Education Association has,
in relation to each of the schools for which it is responsible, the powers and funding
ofa GM body.61

SUBORDINATE LEGISLATION AND DES/DFE CIRCULARS

While the subordinate legislation which is still in force dates back to 1944, the
substantial flow of regulations affecting schools commenced (not surprisingly)
from 1980. Among many possible examples of the most significant statutory
instruments are those relating to information made under the 1980Act;62to special
educational needs under the 1981Act;63to school government under the 1986(No.
2) Act;64and to GM finance65and the national curriculum66 under the 1988 Act.

The number of Departmental Circulars (and Administrative Memoranda) from
the DES (now the DFE) and the Welsh Office, both current at 1January 1979and
issued thereafter, is (to say the least) substantial. The standard disclaimer as to the
status of a circular reads: "The guidance in this circular does not constitute an
authoritative legal interpretation of the [Act] or the [Regulations]: that is a matter
for the courts." None the less, the circular is highly influential, and it is arguable
that for the LEA to disregard guidance in a circular may amount to the LEA acting
so unreasonably or irrationally or unfairly as to justify prima facie an application
for judicial review. Among the better known and recent Circulars are No. 11/88 as
to admission of pupils to county and voluntary schools under the 1980 and 1988
Acts; No. 22/89 and Addendum dated 10 March 1992 as to procedures for
assessments and statements of special educational needs under the 1981 Act and
consequential Regulations; Nos. 7/88 and 7/91 as to local management of schools;
and No. 10/88 as to grant-maintained schools.

One recent example of the status of circulars is the Addendum to Circular 22/89
dated 10 March 1992, which made revisions to existing guidance in the light both
of recent judicial decisions, notably R. v. Secretary of State for Education and
Science, ex parte E,67 and legislation. In spite of the fact that circulars only

61. Education Bill 1992, Part V.
62. Education (School Information) Regulations 1981 (S.I. 1981/630); Education (Information on
School Examination Results) (England) Regulations 1991 (S.I. 1991/1265).
63. Education (Special Educational Needs) Regulations 1983 (S.I. 1983/29); Education (Special
Educational Needs) (Amendment) Regulations 1990 (S.l. 1990/1524); Education (Special
Educational Needs) (Approval ofIndependent Schools) Regulations 1991 (S.l. 1991/449).
64. Education (School Government) Regulations 1989 (S.l. 1989/1503).
65. Education (Grant-maintained Schools) (Finance) Regulations 1992 (S.l. 1992/555).
66. Regulations relate to Assessment Arrangements; Attainment Targets and Programmes of Study;
and Exceptions.
67. [1992] 1 F.L.R. 377 (C.A.).

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constitute 'guidance', in practice they determine the day-to-day implementation
of education policy.68

COMPLAINTS TO SECRETARY OF STATE

In addition to powers conferred by legislation as to specific matters, the Secretary
of State can exercise two significant powers under section 68 or section 99 of the
1944 Act, either on his own initiative or as a result of a complaint to him.

If the Secretary of State is satisfied, either on a complaint by any person or
otherwise, that the LEA or the governors of schools (county, voluntary or GM) or
other specified institutions have acted or are proposing to act unreasonably, under
section 68 the Secretary of State can give such directions as appear to him to be
expedient. It has been held that the courts can enforce compliance with a bonafide
direction by way of an order of mandamus. 69Section 99 empowers the Secretary of
State, either on a complaint by any person or otherwise, to give directions where
the LEA or school governors are in default by virtue of a failure to discharge their
statutory duty; the section specifically provides that any such direction is
enforceable, on an application made on behalf of the Secretary of State by
mandamus.

These sections have not been regarded as providing a suitable means of avoiding
litigation in order to have a grievance investigated and rectified due to the time
which it takes for the DFE to investigate a complaint and for the Secretary of State
to reach a decision. The position is aggravated if a failure to make a complaint to
the Secretary of State risks invalidating an application for judicial review by virtue
of the argument that complaints under the 1944 Act may be a means of appeal
which must be first used before making such an application. It is also contrary to
the principle that there should be the minimum of delay in reaching decisions
when the upbringing of a child is at issue/a a factor which may encourage the
courts to intervene by way of judicial review where the education of a child is at
issue. It also remains to be seen whether a reorganisation within the DFE to deal
with a recent and substantial increase in the number of complaints by parents will
result in a more prompt and effective remedy for parents under the 1944 Act.

THE OMBUDSMAN AND THE LOCAL OMBUDSMAN

A complaint of maladministration against the DFE can be investigated by the
Parliamentary Commissioner for Administration (the Ombudsman) and a

68. See The Law of Education 9th ed. (Butterworths), Division E - Circulars, Circular Letters and
Administrative Memoranda.
69. Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C.
1014 (H.L.).
70. Children Act 1989, s. 1(2).

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complaint of maladministration against the LEA can be investigated by the
Commissioner for Local Administration (the Local Ombudsman). Parents are
increasingly making complaints to the Local Ombudsman in respect of actions or
omissions by the LEA, but it is regrettable that where there is a finding of
maladministration causing an injustice that decision is not enforceable and is on
occasions ignored by a local authority. It is a measure of the importance of the
Local Ombudsman's decisions in respect of the law of education that they are now
reported on a regular basis.71

THE GROWTH OF JUDICIAL REVIEW IN ENGLAND AND WALES

Among lawyers who specialise in the law of education there is concern that
voluntary organisations who advise parents may come to see judicial review as a
remedy of first rather than last resort and generally that there may be a temptation
to make applications which are precipitate or inappropriate.

It is essential that clients should be advised that judicial review is not the same as
an appeal. An Act of Parliament may grant decision-making powers or discretions
and impose duties upon a decision maker, who may be an individual, a body of
persons or a corporation. The statute mayor may not provide machinery for an
appeal against that decision and the appellate process.72 Once the decision has
been made and any appeal process has been exhausted, the merits of the decision
are not open to judicial review. It is usually necessary for the applicant to have used
all available appeal procedures before judicial review can even be considered.

Clients also find it difficult to accept that in proceedings for judicial review the
court is concerned only to see whether the decision-maker has contravened the law
by acting in excess of the powers which Parliament has confided in him 73 and that
the function of the court is therefore a limited supervisory one.74 Before initiating
proceedings for judicial review, care must be taken to assess whether what is being
sought is not an oblique appeal,75 and that prima facie there is a ground within the
three heads which Lord Diplock suggested that administrative action is subject to
judicial review - 'illegality'; 'irrationality' (in the sense of being so unreasonable
that no reasonable authority would have come to that particular conclusion); and
'procedural impropriety'. 76

71. See, e.g., Education and the Law (Longman).
72. R. v. Independent Television Commission, ex parle T.S. W. Broadcasting Ltd. (1992) The Times,
March 30 (H.L.).
73. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 (C.A.), per
Lord Greene MR at p. 233.
74. Kent v. University College London (1992) The Times, February 18 (C.A.).
75. R. v. Secrezary of State for Education and Others, ex parle Banham (1992) The Times, March 9
(Q.B.D.).
76. Council of Civil Service Unions and Others v.Minister for the Civil Service [1984] 3 W.L.R. 1174, at p.
1196 (H.L.). When suggesting the grounds for judicial review (illegality, irrationality and procedural
impropriety), Lord Diplock did not rule out the addition of further grounds, " ... particularly the

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Practitioners are often faced with a major problem when a client has allowed
time to elapse before taking legal advice as to an administrative decision. An
application must be made promptly and in any event within three months from the
date when the grounds for application first arose unless the court considers that
there is good reason for extending the period for applying.77 An application for
legal aid may have to be made on an emergecy basis within the time limit.

There is a further complication which has to be explained to a client, namely
that success in judicial review proceedings may be an illusion, because the court
has discretion whether or not to make an order. There may be proven procedural
impropriety, but the court may decide that it did not affect the outcome and that
no order should be made. This recently occurred when the court held that a
selection panel of governors which had been constituted to appoint a headteacher
should not operate with less than its complement of numbers, but on the facts the
judge refused to grant relief.78Another example of the illusion of success occurs
when one party obtains an order by the court that there has been procedural
impropriety, whereupon the other party repeats the decision-making process, the
second time properly, so that the original decision in effect is reinstated.

Against that background, various issues which have been the subject of
applications for judicial review are now considered.

Procedural errors - removal of governors
The power of removal now exists by virtue of section 8(5) of the 1986 Act. This
issue was considered in Inner London Education Authority v. Brunyaie and An-
other,79 when the House of Lords unanimously held (per Lord Bridge of
Harwich) that" ... individual governors, so long as they hold office as such, have
both the right and the duty to exercise the function of their office independently in
accordance with their own judgment. It follows implicitly ... that the power of
removal cannot be exercised in a way that would amount to a usurpation of the
governors' independent role."80

Governors who are appointed by the LEA are not, therefore, delegates and
cannot be required to vote on any particular issue as the authority wishes.81In R. v.
Westminster Roman Catholic Diocese Trustee, ex parte Andrews82 the Court of
Appeal decided that it was bound by Brunyate and therefore concluded that the
removal of two governors who would not support the trustee's scheme for
reorganisation of a school had not been a valid exercise of the trustee's powers.

possible adoption in the future of the principle of 'proportionality' which is recognised in the
administrative law of several of our fellow members of the European ... Community .... "
77. R.S.c. Order 53, Rule 4.
78. R. v. Birmingham City Council, ex parte McKenna (1991) The Times, May 16 (Q.B.D.).
79. [1989] I W.L.R. 542 (H.L.) (when s. 21(1) of the Education Act 1944,now repealed and replaced
by s. 8(5) of the Education (No.2) Act 1986, was at issue).
80. Ibid., at p. 547.
81. Ibid., at p. 548.
82. (1989) The Independent, July 27 (C.A.).

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The 'political proportionality' principle
By contrast, in R. v. Warwickshire County Council, ex parte Dill-Russell and
Another83 the Court of Appeal upheld a decision by the Divisional Court that a
council can (by removal under section 8(5) of the 1986 Act) replace school
governors after a county council election in order to facilitate better
synchronisation of appointments of governors and county council elections.
Warwickshire's intention had not been to abrogate the independence of governors
(as was the case in Brunyate) but rather to preserve political proportionality on
governing bodies, corresponding with the representation of political parties on the
council.

The relevance of statutory consultation
The Divisional Court has held that a failure to consult, and the conjoined failure to
consider the education implications of a LEA's scheme to withdraw a school's site
from the scope of the statutory transfer to the Education Assets Board,84vitiated
the decisions of the urgent matters sub-committee, and of the policy and resources
committee in R. v. Tameside Metropolitan Borough Council, ex parte Governors of
A udenshaw High School and Another. 85The LEA's bona fide scheme to withdraw
the site from the scope of the statutory transfer if the school obtained grant-
maintained status fell on this single point of failure to consult.

School admissions
The House of Lords recently refused leave to appeal against the decision in R. v.
Bromley London Borough Council, ex parte 06 that there is a clear duty on the LEA
not in any way to differentiate between applicants living within the LEA's area and
those living outside it when considering applications for admission, following the
decision of the Court of Appeal in R. v. Shadow Education Committee of the London
Borough of Greenwich, ex parte the Governors of John Ball Primary School and
Others.87

In deciding Greenwich, the Court of Appeal applied the rules of statutory
interpretation. Lloyd LJ also identified what he described as " ... the seeds of a
possible theoretical difficulty" if there was an influx of children to Greenwich, but
he decided that on the particular evidence there was little practical difficulty.88
Farquarson LJ considered that the so-called 'floodgates' argument (as to numbers
of pupils likely to cross the border between the adjacent LEAs) did not have much
reality.

83. (1990) The Times, December 7 (C.A.).
84. Education Reform Act 1988, SS. 74 and 198.
85. (1990) The Times, June 27 (Q.B.D.).
86. [1992] 1 F.L.R. 174 (Q.B.D.).
87. (1990) 88 L.G.R. 589 (C.A.).
88. Ibid., at p. 598.

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By contrast, in Bromley, Watkins LJ commented that for a LEA to provide an
efficient education as required by sections 7 and 8 of the Education Act 1944, in
the light of the interaction between those sections and section 6 of the 1980 Act
(imposing parental preferences), was 'painfully difficult', especially where there
was oversubscription. Watkins LJ and Owen J saw much practical difficulty and it
did not surprise them to learn that representations had been made to the Secretary
of State to have the law changed. 89

Greenwich also bound the Queen's Bench Divisional Court in R. v. Royal
Borough of Kingston upon Thames, ex parte Kingwe1l90 in which Mr. Kingwell was
considerably aggrieved that, long after he had moved into the Borough so that his
daughters could be educated at a selective, single-sex grammar school (and he had
paid his community charge to the Borough), the Borough as LEA changed its
admissions policy in the light of the decision in Greenwich, giving his daughters no
priority over applicants living outside the LEA's area. The case illustrates the
effect of the threat of or an actual application for judicial review, because less than
a month after Mr. Kingwell commenced judicial review proceedings, the
admissions limit of his preferred school was increased (against opposition) and his
elder daughter was offered a place. That did not, however, deter him from
pursuing his application to have the new admissions policy declared unlawful,
although his challenge was unsuccessful.

The primacy of parental preference was also demonstrated in R. v. Cleveland
County Council and Others, ex parte Commission for Radal Equality,91 when the
Court of Appeal held that the mandatory duty to comply with a parental
preference imposed by section 6(3) of the 1980Act was not qualified by section 18
of the Race Relations Act 1976. The child was of mixed race and the mother was
distressed by the suggestion that her motives in seeking a transfer for her daughter
to another school were in any way racially governed. In any event, the Court of
Appeal decided that the transfer of the child was not an act of segregation on racial
grounds.

On the other hand, in R. v. Governors of the Bishop Challoner Roman Catholic
Comprehensive Girls' School andAnother92 the House of Lords upheld the decision
of the Court of Appeal that a voluntary aided school's admissions policy of giving
preference to Christians, preferably Catholics, was lawful under the exception in
section 6(3)(a) of the 1980Act when the school was oversubscribed and had to have
an admissions policy.

Children with special educational needs
The procedures under the 1981 Act are sufficiently complex for the Court of

89. (1992] I F.L.R. 174, at p. 181 (Q.B.D.).
90. [1992] I F.L.R. 182 (Q.B.D.).
91. (1992) The Times, August 25 (C.A.). Para. 49 of DES Circular 11/88 reminds LEAs and governors
of the Race Relations Act 1976 and the Sex Discrimination Act 1975.
92. (1992] I W.L.R. 99 (H.L.).

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Appeal to have acknowledged with appreciation the provision by Counsel for the
Secretary of State of a 'flow chart', which was annexed to the transcript of the
judgments in R. v. Secretary of State for Education and Science, ex parte E,93 in
which the provision for a child's special educational needs was not adequately
specified in the statement made under section 7 of the 1981 Act. Although Part I I
of the LEA's statement described E as "experiencing difficulties in literacy and
numeracy skills", Part III of the statement dealt only with special educational
provision for E's literacy difficulties and failed to mention the numeracy
difficulties.

An Addendum dated 10 March 1992 to DES Circular 22/29 (supra) was
subsequently issued, clarifying guidance on statutory procedures under the 1981
Act and the form and content of statements, revised to take account of the
judgment in Ex parte E and other decisions.94

The Secretary of State's quasi-judicial function
The question has been raised as to the quasi-judicial function of the Secretary of
State when considering an application for GM status, while at the same time
actively encouraging such applications in line with his party's political policy. R. v.
Secretary of Scate for Education and Science, ex parte Avon County Council (No. 2)95
established that the Secretary of State is entitled to have a political policy,
provided that the machinery of the Act is complied with and the Minister has acted
lawfully, because the Minister is accountable to Parliament in respect of his
assessment of the best method by which to secure the objects of the legislation.
The Secretary of State can properly decide to approve an application by a school
for GM status even if such approval will effectively frustrate an LEA's
reorganisation scheme.

Ralph Gibson LJ considered that Avon's application was misconceived in so far
as it asked the court to intervene in what was, when analysed, a dispute as to
educational policy between Avon and the Minister. It was common ground that
the approval of G M status for Beechen Cliff would frustrate the re-organisation.
Ralph Gibson LJ observed that " ... [t]he Minister, however, was acting under
powers given by Parliament in the Act of 1988. If he was acting lawfully within
those powers, there is no purpose in seeking to demonstrate that the proposals put
forward by Avon are, in the view of those putting them forward, superior for the
purposes of advancing the quality of secondary education for the children of Bath.
Parliament did not entrust the making of that judgment to the court but to the
Minister who is answerable in respect of his decisions to Parliament."96 Nicholls
and Mustill LJJ concurred.

93. [1992] 1 F.L.R. 377 (C.A.), (supra).
94. R. v. Secretary of State for Education and Science, ex parte Lashford [1988] 1 F.L.R. 72 (C.A.);R. v.
Lancashire County Council, ex parte C.M. (1989) Fam. Law 395 (C.A.).
95. (1990) 88 L.G.R. 737 (C.A.).
96. Reference is to LEXIS transcript.

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CONCLUSION
From 1980to 1992the emphasis was on legislation, both primary and subordinate,
which created a new framework for education in schools and a diminishing role for
LEAs. Applications for judicial review increased to a pronounced extent, because
the complexity of the new relationships between schools and the Secretary of State
and LEAs has inevitably led to questions as to procedures and the legality of
decisions made under that legislation.

The 1992 Bill received its second reading on 9 November. Its objectives are
formidable - to establish Funding Agencies for schools in England and Wales and
to redistribute responsibility for, and the provision of, education at school; to
encourage the majority of schools to opt for GM status; to reform the
arrangements for children with special educational needs; to amend the law on
admissions and school attendance orders; to establish Education Associations for
failing schools; and to establish a School Curriculum and Assessment Authority.
Extensive regulations will have to be made in order to give effect to the primary
legislation.

Doubts have already been raised as to whether the central thrust of Government
policy - a substantial increase in the number of GM schools - will be achieved, not
only because of questions as to the financial benefits or otherwise, but also due to
the lack of any requirement that schools should hold regular ballots of parents on
this issue, rather than leaving the initiative primarily with the governing body.

When the 1992 Bill is considered in the context of the Education (No.2) Act
1986, the Education Reform Act 1988, the Education (Schools) Act 1992and the
Further and Higher Education Act 1992(which is outside the scope of this article),
the scale and pace of reform of the law of education is seen to be exceptional.
Demand for advice and representation in this field has expanded dramatically,
involving not only lawyers in private practice or employed in the public sector, but
also law centres, educational psychologists and a wide variety of charitable
organisations. As a result, the law of education is set to become one of the most
prominent specialist areas this decade.

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